Prejean v. Foster

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 99-30360

WILLIAM H. PREJEAN, et al.,

Plaintiffs,

HARRY J. CHAUVIN; EMILE POCHE; NED C. GOLDSTON; DENNIS P.
LOUVIERE; EUGENE J. SCHEXNAYDER; and ROBERT J. HEATH,

Plaintiffs-Appellants,

v.

M.J. “MIKE” FOSTER, JR., et al.,

Defendants,

M.J. FOSTER, JR., Governor of the State of Louisiana; RICHARD
IEYOUB, Attorney General, State of Louisiana; W. FOX
MCKEITHEN, Secretary, State of Louisiana; and JERRY M. FOWLER,
Commissioner of Elections of the State of Louisiana,

Defendants-Appellees.

JON OREN, et al.,

Plaintiffs,

ROBERT J. HEATH; HARRY J. CHAUVIN; EMILE POCHE; NED C.
GOLDSTON; DENNIS P. LOUVIERE; and EUGENE J. SCHEXNAYDER,

Plaintiffs-Appellants,

v.

M.J. FOSTER, JR., Governor of the State of Louisiana, in his
official capacity, also known as Mike Foster; RICHARD IEYOUB,
Attorney General, State of Louisiana in his official capacity;
W. FOX MCKEITHEN, Secretary, State of Louisiana in his
 official capacity; and JERRY M. FOWLER, Commissioner of
Elections of the State of Louisiana, in his official capacity,

Defendants-Appellees.

Appeal from the United States District Court for the
Middle District of Louisiana

October 2, 2000

Before REYNALDO G. GARZA, JONES and EMILIO M. GARZA, Circuit
Judges.

EDITH H. JONES, Circuit Judge:

Since 1986, Louisiana’s method of electing judges has

been under attack for its alleged infringement of voting rights.

The most recent litigation resulted from the state’s efforts to

settle an earlier case by creating majority-minority electoral

subdistricts within a number of its trial court districts.

According to the plaintiffs, who reside and vote in the district of

the 23rd Judicial District Court (23rd JDC), the settlement itself

intentionally discriminates among voters and thus violates the 14th

and 15th Amendments and Section 2(a) of the Voting Rights Act. The

district court, no doubt frustrated by the recent vicissitudes of

voting rights law, granted summary judgment for the state. We are

constrained to reverse and remand for trial.

2
 I. FACTUAL AND PROCEDURAL BACKGROUND

The legislation at issue here, Act 780, responded to the

many twists and turns of Clark v. Edwards, civil action No. 86-435-

A,1 filed in 1986. In Clark, black voters asserted that the use of

multi-member, at-large judicial districts diluted black voting

strength in violation of the Fourteenth and Fifteenth Amendments of

the Constitution as well as Section 2(a) of the Voting Rights Act.2

Their vote dilution claims were predicated on Thornburg v. Gingles,

478 U.S. 30, 106 S.Ct. 2752 (1986), and involved all of the

Louisiana courts of appeal and most of the state’s 41 judicial

district courts.

The federal district court initially found that the

state’s entire at-large scheme for judicial elections violated

Section 2. Clark v. Edwards, 725 F. Supp. 285, 302 (M.D. La.

1988). Although minority vote dilution had not been proven in

every district, the court enjoined elections for all family,

district, and appellate courts until the state system could be

revised. The Louisiana legislature proposed a package of

1
This circuit and the Supreme Court ruled on aspects of Clark in Clark
v. Edwards, 958 F.2d 614 (5th Cir. 1992)(order granting joint motion to dismiss
appeals), and Clark v. Roemer, 500 U.S. 646, 111 S. Ct. 2096 (1991)(upholding the
plaintiffs’ Section 5 claims and ordering that future elections be enjoined from
unprecleared judgeships).
2
Section 2(a), 42 U.S.C. § 1973(a), tracks the Fifteenth Amendment.

3
constitutional and statutory changes to address the court’s ruling,

but the voters rejected them.

The district court subsequently vacated the statewide

injunction because it came to realize that Gingles requires

district-by-district findings, and it issued revised findings that

eleven districts, excluding the 23rd JDC, violated Section 2.3 For

those eleven districts, the court reluctantly concluded that

subdistricts must be created to enhance minority judicial

candidates’ chances. Clark v. Roemer, 777 F. Supp. 445, 450 (M.D.

La. 1990).

Both parties appealed, placing at issue the findings of

Section 2 violations in some districts and the refusal to enter

such findings in others, including the 23rd JDC. The imperative to

end the struggle eventually yielded a settlement calling for

revisions of fifteen judicial districts, including the eleven

which had been covered by the district court’s remedial order for

subdistricting and the 23rd JDC. The Clark plaintiffs agreed to

drop their challenges to the other districts. Obtaining

preclearance by the U.S. Attorney General pursuant to Section 5 of

3
The district court vacated an earlier finding of a Section 2
violation in the 23rd JDC in light of the fact that while there was evidence,
inter alia, of polarized voting in the 23rd JDC in statewide elections, no local
black-white judicial elections had occurred, and there was no evidence of black-
white elections for other political offices. Although the Clark plaintiffs moved
for reconsideration based on evidence of polarization in post-trial elections,
the district court declined to reconsider. Thus, the district court never found
a Section 2 violation in the 23rd JDC.

4
the Voting Rights Act was an essential component of the settlement,

as preclearance was needed before elections could be held in the

judicial districts. Preclearance of the plan was granted. Act 780

was the end result of the settlement agreement.4

Act 780 of the 1993 Regular Session of the Louisiana

Legislature increased from four to five the number of district

judges for the 23rd JDC, which covers Ascension, Assumption, and

St. James Parishes. In the process, Act 780 created two electoral

subdistricts within the district. In the whole district, the

population ratio is about 70% white/30% black. Subdistrict one is

75% black, contains roughly 20% of the total population, and elects

one of the five district judges for the 23rd JDC; subdistrict two

is 80% white, contains roughly 80% of the total population, and

elects four of the district judges. Alvin Turner became the first

African-American judge in the 23rd JDC when he was elected in

subdistrict one.

Critically, the jurisdiction of the judges elected under

Act 780 covers all three parishes in the 23rd JDC. But because of

subdistricting, voters in the black subdistrict may only elect one

of the five judges and have no right to vote on the other four.

Conversely, voters in the white subdistrict may vote for four of

the trial judges but not for the fifth one. Any citizen may,

4
The legislature first created a subdistricting plan (Act. 1069) in
1992, but it was never put into effect and was superseded by Act 780.

5
however, be a party in the court of a judge, or judges, he has been

prohibited from voting on.

After considering cross-motions for summary judgment,

the district court granted the defendants’ motion. The plaintiffs

filed a timely appeal.

II. STANDARD OF REVIEW

This court reviews the granting of summary judgment de

novo and applies the same criteria as the district court. See

Baker v. Putnal, 75 F.3d 190, 197 (5th Cir. 1996). Summary

judgment is appropriate when, viewing the evidence and all

justifiable inferences in the light most favorable to the non-

moving party, there is no genuine issue of material fact and the

moving party is entitled to judgment as a matter of law. Hunt v.

Cromartie, 526 U.S. 541, 552, 119 S.Ct. 1545, 1551-52 (1999); see

also FED. R. CIV. P. 56(c). If the moving party meets its burden,

the non-movant must designate specific facts showing there is a

genuine issue for trial. Little v. Liquid Air Corp., 37 F.3d 1069,

1075 (5th Cir. 1994).

III. ANALYSIS

The appellants contend that in creating racially

identifiable subdistricts for electing trial judges in the 23rd

JDC, the statute effects an impermissible racial gerrymander. They

point to the shape of the subdistricts, the racial statistics

6
submitted to the court, the Clark litigation history, and the

state’s Section 5 preclearance submissions as direct and

circumstantial evidence that race was the “sole and singular

motivation” for Act 780. As a result, plaintiffs assert, Act 780

violates the Equal Protection clause of the Fourteenth Amendment,

the Fifteenth Amendment, and Section 2(a) of the Voting Rights Act,

42 U.S.C. § 1973(a).

The state defendants and black voter intervenors

(collectively “the defendants”) counter with an affidavit by Judge

Turner, who states that race was not the predominant factor in

drawing the subdistrict lines. Alternatively, the defendants

contend that the districting plan implemented by Act 780 is

narrowly tailored to meet the compelling state interests of

complying with Sections 2 and 5 of the Voting Rights Act and of

terminating the lengthy Clark litigation.

A. Fourteenth Amendment

The original purpose of the Equal Protection Clause of

the Fourteenth Amendment is to prevent states from intentionally

discriminating against persons on the basis of race. See

Washington v. Davis, 426 U.S. 229, 239, 96 S.Ct. 2040, 2047 (1976).

Racial gerrymandering of electoral districts, which involves the

“‘deliberate and arbitrary distortion of district boundaries . . .

for [racial] purposes,’” Shaw v. Reno, 509 U.S. 630, 640, 113 S.Ct.

7
2816, 2823 (1993)(“Shaw I”)(citation omitted), falls “within the

core of that prohibition.” Id. at 642, 113 S.Ct. at 2824.

Given the presumption of the legislature’s good faith in

redistricting,5 showing that a redistricting plan intentionally

discriminates is not ordinarily an easy task. A trial court must

“perform a ‘sensitive inquiry into such circumstantial and direct

evidence as may be available.’” Hunt v. Cromartie, 526 U.S. at

546, 119 S.Ct. at 1549 (1999)(quoting Arlington Heights v. Metro.

Hous. Dev. Corp., 429 U.S. 252, 266, 97 S.Ct. 555, 564 (1977)).

Unlike statutes that explicitly classify people based on race, see

Personnel Adm’r of Mass. v. Feeney, 442 U.S. 256, 272, 99 S.Ct.

2282, 2293 (1979), “[a] reapportionment statute typically does not

classify persons at all; it classifies tracts of land or

addresses.” Shaw, 509 U.S. at 646, 113 S.Ct. at 2826.6 And as

Bush makes clear, “[s]trict scrutiny does not apply merely because

redistricting is performed with consciousness of race . . . . Nor

does it apply to all cases of intentional creation of majority-

5
This presumption, in turn, “may impact the assessment of the
propriety of summary judgment in a suit challenging districts as racial
gerrymanders.” Chen v. City of Houston, 206 F.3d 502, 505 (5th Cir. 2000)(citing
Miller v. Johnson, 515 U.S. 900, 916-17, 115 S.Ct. 2475, 2488 (1995)).
6
The shape of a district may be so bizarre that the redistricting plan
cannot be explained on grounds other than race. See Gomillion v. Lightfoot, 364
U.S. 339, 81 S.Ct. 125 (1960). That is, some districts are “so highly irregular
that [they] rationally cannot be understood as anything other than an effort to
‘segregat[e] . . . voters’ on the basis of race.” Shaw I, 509 U.S. at 646-47,
113 S.Ct. at 2826 (1993)(quoting Gomillion, 364 U.S. at 341, 81 S.Ct. at 127).
But a bizarre shape is not a sine qua non to plaintiffs’ case for a racial
gerrymander. See Miller, 515 U.S. at 915, 115 S.Ct. at 2488.

8
minority districts.” Bush v. Vera, 517 U.S. 952, 958, 116 S.Ct.

1941, 1951 (1996)(plurality opinion). A plaintiff must show that

traditional districting principles were subordinated to race, i.e.,

that race was “the predominant factor motivating the legislature’s

[redistricting] decision.” Miller, 515 U.S. at 916, 115 S.Ct. at

2488 (1995).7

Legislative motivation or intent is a paradigmatic fact

question. Hunt, 526 U.S. at 549, 119 S.Ct. at 1550. Thus, the

defendants are entitled to summary judgment only if there is no

genuine question of material fact as to the intent of the Louisiana

legislature in passing Act 780.

The district court summarized the plaintiffs’ evidence as

consisting of “the shape of the subdistricts, the racial

statistics, the Clark litigation, and the Section 5 submittals by

the State for preclearance of Act 780.” But the court dismissed

most of that evidence without discussion. According to the

district court, “the circumstantial proof submitted by plaintiffs

essentially boils down to their arguments relating to contiguity

and compactness,” i.e., the shape of the districts. The court

7
See Hunt, 526 U.S. at 547, 119 S.Ct. at 1549 (internal citation
omitted)(quoting Miller, 515 U.S. at 916, 115 S.Ct. at 2488) (In order to carry
their burden, the plaintiffs must show “using direct or circumstantial evidence,
or a combination of both, that ‘the legislature subordinated traditional race-
neutral districting principles, including but not limited to compactness,
contiguity, and respect for political subdivisions or communities defined by
actual shared interests, to racial considerations.’”).

9
relied on the affidavit of Judge Turner, formerly a lawyer in and

unsuccessful candidate for an at-large judgeship in the 23rd JDC.

Judge Turner drew the district lines prescribed in Act 780 for the

23rd JDC, and the legislature adopted his proposed subdistricting

scheme. Judge Turner averred that race did not predominate over

traditional districting principles; he stated that, while following

traditional districting principles, he drew the district lines to

accommodate his candidacy. The district court agreed, as it found

plaintiffs’ evidence was insufficient to cast doubt on the intent

of the Louisiana legislature.8

If Judge Turner’s affidavit describing his intent in

drawing the subdistricts is taken as conclusive proof of the

legislature’s intent, then the district court’s holding is

consistent with Bush.9 But this is not so. Unlike the legislator

affiants who drafted the districting plan in Hunt (and whose

8
According to Judge Turner, race was only one of several factors he
considered in redrawing the district lines. Other factors included: contiguity,
non-splitting of precincts, the one-person/one-vote principle, protection of
incumbents, the political preference of incumbents to include parts of each
parish in each subdistrict, and the location of Judge Turner’s own supporters.
9
See Bush, 517 U.S. at 964-65, 116 S.Ct. at 1956: “In some
circumstances, incumbency protection might explain as well as, or better than,
race a State’s decision to depart from other traditional districting principles,
such as compactness, in the drawing of bizarre district lines. And the fact
that, ‘[a]s it happens, . . . many of the voters being fought over [by the
neighboring Democratic incumbents] were African-American,’ . . . would not, in
and of itself, convert a political gerrymander into a racial gerrymander, no
matter how conscious redistricters were of the correlation between race and party
affiliation . . . . If district lines merely correlate with race because they
are drawn on the basis of political affiliation, which correlates with race,
there is no racial classification to justify . . . .”

10
affidavits were sufficient to defeat a motion for summary judgment

but not secure summary judgment for the state), see 526 U.S. at

549, 119 S.Ct. at 1550, Judge Turner was not a member of the state

legislature. The fact that the legislature adopted Judge Turner’s

districting plan without modification might support an inference

that racial considerations did not predominate. As Hunt reminds,

however, the district court was required to view the evidence and

all inferences therefrom in the light most favorable to the non-

movants, i.e., the appellants. Hunt, 526 U.S. at 552, 119 S.Ct. at

1551-52. Another equally plausible inference is that the

legislature was ready to adopt whatever proposal would satisfy its

objective of creating a black subdistrict. Indeed, in Bush, the

trial court and the Supreme Court ultimately disbelieved the

testimony of legislative employees and even state legislators to

the effect that non-racial considerations motivated Texas’s

congressional redistricting, where the objective contemporary

evidence showed otherwise. Bush, 517 U.S. at 972-73, 116 S.Ct. at

1958. The court here should have drawn all inferences in favor of

the appellants and included in its consideration the evidence they

adduced.

1. The Clark Settlement.

To end the Clark litigation, and to address the Justice

Department’s Section 5 objections, the state agreed to implement a

11
subdistrict election plan in the 23rd JDC, among others, that would

“contain at least one subdistrict with a majority black voter

registration.” Act 780 added a new judgeship for this purpose and

created a subdistrict in the 23rd JDC. Contrary to Judge Turner’s

statement that politics as opposed to race motivated Act 780, the

history of the Act and the quoted language from the settlement

agreement, when viewed in the light most favorable to the

nonmovants, strongly suggest that traditional districting

principles were subordinated to racial considerations.

2. Section 5 Preclearance Submissions.

The ballet between the state and the U.S. Justice

Department over Section 5 preclearance leading up to Act 780

reinforces the sense of legislative preoccupation with the racial

makeup of judicial districts. Coincidentally, this time period

corresponds with the Justice Department’s pressing Georgia to

effectuate a “max-black” congressional districting plan later

overturned as a racial gerrymander by the Supreme Court in Miller.

Until 1992, the Department of Justice (“DOJ”) refused to

preclear the various changes to the judicial election process

proposed by the Louisiana legislature. Correspondence between DOJ

and the State shows DOJ, unconcerned with Louisiana’s adherence to

12
traditional principles like incumbency protection,10 denying

preclearance unless “black voters clearly would have the

opportunity to elect candidates of their choice.” In fact,

preclearance occurred only after Louisiana agreed to implement at

least one majority-black subdistrict for each judicial district

that concerned DOJ.

Ongoing correspondence between DOJ and the State of

Louisiana is not dispositive as to legislative intent, but the

“historical background of the decision is one evidentiary source”

that must be considered. Arlington Heights, 429 U.S. at 267, 97

S.Ct. at 564. “And the Justice Department’s implicit command that

States engage in presumptively unconstitutional race-based

districting brings the [Voting Rights] Act . . . into tension with

the Fourteenth Amendment.” Miller, 515 U.S. at 927, 115 S.Ct. at

2493. At the summary judgment stage, one could readily infer that

the state was motivated to pass Act 780 by the desire to secure

Section 5 preclearance, which, under DOJ’s policy, meant creating

racially-based subdistricts. As the trial court found in Miller,

“‘it became obvious,’ both from the Justice Department’s objection

letters and the three preclearance rounds in general, that [the

10
In a 1990 letter to the Louisiana Attorney General’s office, the DOJ
stated that “the State’s failure and refusal to adopt any remedial measures
without also seeking to protect incumbents, the vast majority of whom are white,
would appear to be elevating the State’s concern for protecting white incumbents
over the vindication of minority voting rights.” The DOJ’s letter may be
interpreted as requiring the legislature to focus on vindicating minority voting
rights, not other traditional districting principles.

13
DOJ] would accept nothing less than abject surrender to a [minority

district] maximization agenda.” Id., 515 U.S. at 917, 115 S.Ct. at

2489.

In the state Attorney General’s summary of Act 780 within

the state’s preclearance submission, the state forthrightly

declared that the reason for the change to the 23rd JDC was to

“reapportion the 23rd Judicial District Court, with election

Section one having a majority black population and electing one

judge . . . .” The Attorney General also officially announced that

under Act 780, “one of the district’s election Sections will be

comprised of a majority of black voters.”11 Thus, the only

contemporaneous statements attributable to the State suggest that

the major purpose of the Act was to create a majority-minority

subdistrict in the 23rd JDC.

That the state was rushing headlong into the arms of DOJ

regardless of legal consequences might also be inferred from the

drastic nature of the changes in judicial election procedures that

the state agreed to. While the Supreme Court has held that Section

2 vote dilution claims may be asserted concerning elections of

judges, it also agreed that the state may have strong policies

11
The Supreme Court has noted that statements by the Attorney General
can provide “powerful evidence that the legislature subordinated traditional
districting principles to race . . . .” Miller, 515 U.S. at 919, 115 S.Ct. at
2490. Although the Attorney General’s statements in this case, unlike Miller,
do not explicitly state that traditional principles were not followed, the
statements still provide prima facie evidence of the State’s focus on racial
considerations in passing Act 780.

14
favoring multimember districts, which ought to be evaluated in the

totality of the circumstances liability inquiry or in the remedial

phase of suit. Houston Lawyers’ Association v. Atty. General of

Texas, 501 U.S. 419, 426-27; 111 S.Ct. 2376, 2381 (1991). Indeed,

this court on remand of the Houston Lawyers’ case ultimately found

no Section 2 violation in part because it is essential to the

responsiveness, independence and fairness of an elected judiciary

that trial judges not be balkanized into small constituencies

within the district for which they are responsible. League of

United Latin American Citizens (LULAC) v. Clements, 999 F.2d 831,

872-74 (5th Cir. 1993) (en banc). In 1991, Louisiana might not

have foreseen the conclusion of the LULAC case, but surely it

understood that the Supreme Court considered judicial elections to

invoke more complex voting rights problems than legislative

elections. Nevertheless, the state stifled its policy arguments to

obtain final preclearance.

3. Racial Statistics.

Another powerful indicator of the state’s intent is the

demographic information used by the legislature and submitted to

the DOJ in support of Section 5 preclearance. The data refer only

to the racial composition of the 23rd JDC’s total population and

voting age population -- facts which the Supreme Court takes to be

significant, where, as here, “at the time of the redistricting, the

State had compiled detailed racial data for use in redistricting,

15
but made no apparent attempt to compile, and did not refer

specifically to, equivalent data regarding communities of

interests.” Bush, 517 U.S. at 967, 116 S.Ct. at 1955.

4. Traditional Districting Principles.

Finally, the district court failed to draw all

justifiable inferences in the appellants’ favor with respect to the

subordination of traditional districting principles such as

compactness, contiguity and maintaining communities of interest.12

Traditional districting principles are important “not because they

are constitutionally required . . . but because they are objective

factors that may serve to defeat a claim that a district has been

gerrymandered on racial lines.” Shaw I, 509 U.S. at 647, 113 S.Ct.

at 2827. The district court minimized the appellants’ evidence

based on Judge Turner’s affidavit and the appellants’ admission

that the subdistricts are “technically compact and contiguous.”

The court misperceived appellants’ position.

At first glance, the shape of the majority-black

subdistrict in the 23rd JDC is not as ungainly as the districts in

Shaw or Gomillion. But upon closer inspection, the construction of

the judicial subdistricts appears problematic. In this respect,

12
Furthering another traditional districting principle, however, Act
780 protects judicial incumbents by adding a black subdistrict to the 23rd JDC
and allowing the four previously-authorized judges to run in the majority-white
subdistrict. This situation hardly reinforces a claim of the legislature’s race-
neutrality.

16
the 23rd JDC resembles the Eleventh District at issue in Miller:

“Although by comparison with other districts the geometric shape of

the [district] may not seem bizarre on its face, when its shape is

considered in conjunction with its racial and population densities,

the story of racial gerrymandering . . . becomes much clearer.”

515 U.S. at 917, 115 S.Ct. at 2489.13

As the district court noted, Act 780 divides its three

constituent parishes as well as three municipalities (Lutcher,

Donaldsonville, and Gonzales). The majority-black subdistrict,

situated roughly in the middle of the district, contains precincts

in each of the Parishes and each of the municipalities. Several

parts of the subdistrict protrude out to include predominately

black populations. For example, the “Lutcher thrust” is a thin,

finger-like extension that, at its tip, encompasses part of the

city of Lutcher. Although the population of Lutcher is roughly 50%

black, the portion of Lutcher included in the majority-black

subdistrict is 99.4% black. Similarly, in Ascension Parish the

majority-black subdistrict incorporates only part of the city of

Donaldsonville, but that portion contains a 79% black population,

compared to about 59% black citizenry of Donaldsonville. The City

13
See Chen v. City of Houston, 206 F.3d 502, 507 (5th Cir. 2000): “A
plaintiff may demonstrate that race predominated in a districting decision by
introducing circumstantial evidence of the district’s shape and demographics,”
and if shape alone is not dispositive, the plaintiffs can still establish “their
circumstantial case by demonstrating that the districts are sufficiently bizarre
in relation to racial demographics and population densities.”

17
of Gonzales has a 24% black population, but the portion of Gonzales

allocated to the black subdistrict is 62% black.

The splitting of communities also affects the majority-

white subdistrict.14 The second subdistrict is populated from three

disconnected and isolated geographical areas: northern Ascension,

southern Assumption, and eastern St. James Parishes. Contiguity

does not exist: an uninhabitable swamp separates these areas. It

is impossible to travel among the three disconnected portions of

the second subdistrict while remaining in that subdistrict.

The disregarding of township lines is probative.

A state is free to recognize communities that have a
particular racial makeup, provided its action is directed
toward some common thread of relevant interests. ‘[W]hen
members of a racial group live together in one community,
a reapportionment plan that concentrates members of the
group in one district and excludes them from others may
reflect wholly legitimate purposes.’

Miller, 515 U.S. at 920, 115 S.Ct. at 2490 (quoting Shaw I, 509

U.S. at 646, 113 S.Ct. at 2826).15 But according to the Supreme

14
The Equal Protection Clause’s “central mandate is racial neutrality
in governmental decisionmaking . . . This rule obtains with equal force
regardless of ‘the race of those burdened or benefitted by a particular
classification.’” Miller v. Johnson, 515 U.S. 900, 904, 115 S.Ct. 2475, 2482
(1995)(citation omitted).
15
In Chen, this court cautioned against relying too heavily on
communities of interest: “Because of the inherently subjective nature of the
concept, it would seem that reasonable people might disagree as to what
constitutes a community. We thus caution against general over-reliance on the
communities of interest factor.” 206 F.3d at 517 n.9. The Supreme Court,
though, has repeatedly taken communities of interest to be a relevant factor.
See Miller, 515 U.S. at 916, 115 S.Ct. at 2488 (“traditional race-neutral
districting principles, including . . . communities defined by actual shared
interests.”); Bus, 517 U.S. at 963, 116 S.Ct. at 1953-54. This court, therefore,
analyzes the communities of interest factor mindful of Chen’s admonition.

18
Court, a community of interest is manifested by “for example,

shared broadcast and print media, public transport infrastructure,

and institutions such as schools and churches . . . .” Bush, 517

U.S. at 964, 116 S.Ct. at 1954. The parish and town-splitting

subdistricts created by Act 780 may be characterized as defying the

notion of a “common thread of interests.”16

Judge Turner’s affidavit supported the district court’s

finding that even if the appellants’ statistical data established

a prima facie case of racial discrimination, any “deviations from

traditional districting principles . . . are due to politics rather

than race.” Judge Turner states that he drew the district lines

with an eye toward including his political supporters from his

previous attempts at elective office. Laying aside the disjunction

noted earlier between Judge Turner’s intent and the intent of the

legislature, this aspect of his affidavit, viewed from the

plaintiffs’ perspective, is quite unsatisfactory. There is no

supporting documentation showing who his supporters were, and where

they would be found -- or not found -- in the proposed subdistrict.

No evidence of his previous candidacies’ vote distribution was

16
Thus, this case differs from Bush where the Court found one reason
“[t]raditional districting criteria were not entirely neglected” was that “each
of the three districts takes its character from a principal city and the
surrounding urban area.” 517 U.S. at 963, 116 S.Ct. at 1953-54. See also id.,
517 U.S. at 974, 116 S.Ct. at 1961 (“Not only are the shapes of the districts
bizarre; they also exhibit utter disregard of city limits . . . .”); Shaw I, 509
U.S. at 629-30, 113 S.Ct. at 2821 (finding a racial gerrymander where the
district “winds in snakelike fashion through tobacco country, financial centers,
and manufacturing areas . . . [and] even towns are divided.”).

19
offered. Yet Judge Turner’s statement cries out for objective

verification.17 In the absence of evidence showing the requisite

correlation between race and support for Judge Turner, there is a

legitimate concern that race is used as a proxy for politics:

If the district lines merely correlate with race because
they are drawn on the basis of political affiliation,
which correlates with race, there is no racial
classification to justify . . . But to the extent that
race is used as a proxy for political characteristics, a
racial stereotype requiring strict scrutiny is in
operation.

Bush, 517 U.S. at 968, 116 S.Ct. at 1956.18

In contrast to Judge Turner’s statements, neither the

Attorney General’s announcements, the data accompanying the Section

5 submittals, nor the DOJ correspondence discusses traditional

17
The plaintiffs contend that when Judge Turner was deposed, he was
ordered to bring all documents and records used to construct the new subdistricts
but that he produced only racial summaries of the number of black registered
voters in the precincts included/excluded from the new 75% black subdistrict.
The plaintiffs argue that they should be allowed to cross-examine Judge Turner
at trial using such evidence.
18
See Miller, 515 U.S. at 914, 115 S.Ct. at 2487 (internal citations
omitted):
It is true that redistricting in most cases will
implicate a political calculus in which various
interests compete for recognition, but it does not
follow from this that individuals of the same race share
a single political interest. The view that they do is
‘based on the demeaning notion that members of the
defined racial groups ascribe to certain “minority
views” that must be different from those of other
citizens,’ the precise use of race as a proxy the
Constitution prohibits.
See also Bush, 517 U.S. at 966, 116 S.Ct. at 1955 (disregarding the community of
interest justification because it was not clear that such data were before the
legislature in an organized fashion); Shaw II, 517 U.S. at 908 n.4, 116 S.Ct. at
1902 n.4 (purported justification must be actual purpose in adopting plan and
supported in the evidence).

20
districting principles. Viewed in the light most favorable to the

nonmovants, one could infer that the legislature was motivated

primarily by racial considerations, i.e., the creation of a

majority-black subdistrict, in order to comply with the Clark

settlement.

As a result of all this evidence, a “sensitive inquiry

into” the present summary judgment record reveals that “[a]ll that

can be said on the record before us is that motivation was in

dispute. Reasonable inferences from the undisputed facts can be

drawn in favor of a racial motivation finding or in favor of a

political motivation finding.” Hunt, 119 S.Ct. at 1552. As a

result, since “[t]he legislature’s motivation is itself a factual

question,” id. at 1550, “it was error in this case for the District

Court to resolve the disputed fact of motivation at the summary

judgment stage.” Id. at 1552. Although Judge Turner’s affidavit

provides some insight into the legislature’s intent, it is far from

determinative. The appellants’ evidence raises a factual issue as

to whether race was the predominant motivation, and the grant of

summary judgment on the Equal Protection claim is, therefore,

vacated and remanded.

B. Justification of Race-Based Districts

The district court, finding no predominately racial

motive for configuring the 23rd JDC, rejected plaintiffs’

21
Fourteenth Amendment challenge, but he alternatively ruled that

even if he was in error, and strict scrutiny applies, the state met

its burden of justifying racially-based subdistricts. That is, the

state proved compelling interests for passing Act 780, and the

racial subdistricts were narrowly tailored to achieve the state’s

purposes. When both these criteria are satisfied, a governmental

body may sustain a racially-motivated district. Bush, 517 U.S. at

977, 116 S.Ct. at 1960. Each of these criteria requires separate

analysis.

1. Compelling state interests.

Bush grants that the state has a compelling interest in

complying with the results test of Section 2 of the Voting Rights

Act,19 which may lead it to create a majority-minority district only

when it has a “strong basis in evidence” for concluding, or a

“reasonable fear” that, otherwise, it would be vulnerable to a vote

dilution claim. Bush, 517 U.S. at 994, 116 S.Ct. at 1970

(O’Connor, J., concurring); see also id., 517 U.S. at 978, 116

S.Ct. at 1961. The district court readily – perhaps too readily –

found that a “reasonable fear” of liability existed. Just a year

or so before the settlement, it had vacated a blanket liability

decision against the 23rd JDC and had refused to reconsider even

after the Clark plaintiffs submitted new evidence. Nevertheless,

19
Bush assumes this interest arguendo, citing prior authority. Bush,
517 U.S. at 977, 116 S.Ct. at 1960.

22
the district court’s reasoning on the “statistical” preconditions

of Section 2 vote dilution liability is not subject to review, as

appellants failed to challenge it in their opening brief; appellate

points may not be asserted for the first time in a reply brief.

The appellants did timely make two arguments contesting

the “substantial basis in evidence” alleged by the state. First,

plaintiffs argue that as a matter of law, there is no remedy for a

vote dilution challenge to judicial districts because there is no

benchmark by which to measure vote dilution. This argument derives

from the Supreme Court’s opinion in Holder v. Hall, 512 U.S. 874,

114 S.Ct. 2581 (1994), which analyzed a vote dilution claim against

a Georgia county with a unitary executive post. Black voters,

objecting to their inability to elect a “candidate of their

choice,” sought relief in the form of a multimember executive post

like those in some other Georgia counties. The Supreme Court held

that federal courts cannot order a change in the size of a

governing body as a Section 2 remedy:

In a § 2 vote dilution suit, along with determining
whether the Gingles preconditions are met and whether the
totality of the circumstances supports a finding of
liability, a court must find a reasonable alternative
practice as a benchmark against which to measure the
existing voting practice.

23
Holder v. Hall, 512 U.S. at 880, 114 S.Ct. at 2585 (1994)(footnote

omitted).20

From the plaintiffs’ point of view, Holder ought to

preclude subdistricting of judges in the 23rd JDC because each

judge is like the independent county executive in Bleckley County,

Georgia, and no benchmark exists to measure “dilution” of minority

votes for such a unitary post. Construing Holder in this way,

however, creates some tension with the Court’s judicial vote

dilution cases. Chisom held that a Section 2 dilution claim is

maintainable against an elected appellate bench, a body

superficially symmetrical to a multimember legislature, Chisom v.

Roemer, 501 U.S. 380, 111 S.Ct. 2354 (1991); and on the same day

that Chisom was issued, the Court decided Houston Lawyers’, which

carried the possibility of a Section 2 violation into an electoral

system exactly like that for trial judges in Clark: district-wide

elections for multiple trial judges whose jurisdiction is

independent and co-extensive with the district boundaries. While

Holder may preclude some solutions to judicial vote dilution

20
A district court cannot simply assume that racial subdistricting is
such a benchmark. In Holder, the Court stated, “[o]ne gets the sense that [the
appellees] and the United States have chosen a benchmark for the sake of having
a benchmark. But it is one thing to say that a benchmark can be found, quite
another to give a convincing reason for finding it in the first place.” 512 U.S.
at 880, 114 S.Ct. at 2586). Justice O’Connor’s concurrence explained that, by
contrast, benchmarks do exist for federal courts in Section 2 challenges to
multimember, at-large systems where the plaintiffs do not challenge the size of
the elective body. Holder, 512 U.S. at 888, 114 S.Ct. at 2589 (O’Connor, J.,
concurring).

24
claims, this court has squarely held that Holder applies to the

election of “‘judges whose responsibilities are exercised

independently in an area coextensive with the district from which

they are elected.’” Concerned Citizens for Equal. v. McDonald, 63

F.3d 413, 417 (5th Cir. 1995) (quoting Houston Lawyers’, 501 U.S.

at 424, 111 S.Ct. at 2380). Whatever the tension between Holder

and Houston Lawyers’, it is beyond this court’s power and duty to

resolve in the case before us. We need only conclude that Holder’s

theory did not furnish a Section 2 defense to Louisiana as a matter

of law and, at best, constituted one of the imponderables that

inspired the state’s settlement.

The appellants’ second argument why the state had no

strong basis in evidence or reasonable fear that it faced Section

2 liability is far more persuasive. They point to the state’s

interest in “linkage” between judicial offices and the citizens

over whom the judges preside. Linkage, embodied in district-wide

elections, promotes the actuality as well as perception of judicial

impartiality and responsiveness to all citizens of the district.

Subdistricts, on the other hand, can render judges vulnerable to

insular prejudices of their constituents or to targeted attacks by

powerful interest groups. Indeed, racial subdistricts tend to

limit rather than extend the influence of minority voters for whom

such districts are ostensibly created. Houston Lawyers’ found the

state’s interest in linkage relevant to the totality of the

25
circumstances aspect of the test for Section 2 liability and

suggests that the interest may possibly “preclude a remedy that

involves redrawing boundaries or subdividing districts. . .”

Houston Lawyers’, 501 U.S. at 426, 111 S.Ct. at 2381. The case was

accordingly remanded to this court, which found, inter alia, that

the state’s interest in linkage militated against finding Section

2 liability.

The potential importance of linkage was clearly stated in

Houston Lawyers’, which was decided before the state completed its

settlement with the Clark plaintiffs and obtained preclearance for

the new 23rd JDC subdistrict boundaries. While it is true that the

state’s interest in linkage is not a defense as a matter of law

against a judicial vote dilution claim, that interest must be

considered in the totality of the circumstances test, it must be

balanced against the evidence of actual vote dilution, and it may

preclude a subdistricting remedy. See Houston Lawyers, 501 U.S. at

426, 111 S.Ct. at 2381; LULAC, 999 F.2d at 869, 876.21 At the very

least, the district court should have considered the importance of

linkage as an element in determining whether a “strong basis in

21
Appellants point out that every circuit opinion to address the
linkage argument has used it to reject judicial vote dilution claims. Mallory
v. Ohio, 173 F.3d 377 (6th Cir. 1999); Milwaukee Branch of the NAACP v. Thompson,
116 F.3d 1194 (7th Cir. 1997); Southern Christian Leadership Conf., Inc. v.
Sessions, 56 F.3d 1281 (11th Cir. 1995) (en banc); Cousin v. McWherter, 46 F.3d
568 (6th Cir. 1995); Nipper v. Smith, 39 F.3d 1494 (11th Cir. 1994) (en banc).
While this history subsequent to Houston Lawyers’ does not conclusively prove the
potency of the linkage argument, the uniformity of the precedents should cause
the district court to evaluate it with much greater care.

26
evidence” undergirded the state’s fear of Section 2 liability.

Unfortunately, it did not do so. Inasmuch as the balancing of the

linkage interest against vote dilution evidence embodies factual

findings, our court cannot make the determination as a matter of

law, and the case must be remanded.

The state advances several arguments against further

review of, or as the state puts it, a collateral attack on the

Clark litigation settlement. First, the state contends, it is not

the function of racial districting challenges brought under Shaw v.

Reno to relitigate Section 2 cases (the Clark litigation) that gave

rise to a particular remedial scheme. On the contrary, where, as

in Shaw and progeny, it has been determined that racially-motivated

districting occurred, even districts that were created pursuant to

settlements of prior litigation may be scrutinized for

constitutional compliance.22 The Constitution forbids racially

discriminatory districts unless a compelling state interest

supports the state’s decision. The Supreme Court insists on a

“substantial basis in evidence” supporting the State’s action to

emphasize the gravity of race-based decisionmaking in our society.

This test itself demands a hindsight review of the evidence before

the state when it configured a district, whether that evidence was

22
“It has long been established that res judicata is no defense where,
between the first and second suits, there has been an intervening change in the
law, or modification of significant facts creating new legal conditions.”
Jackson v. DeSoto Parish Sch. Bd., 585 F.2d 726, 729 (5th Cir. 1978).

27
developed to obtain preclearance, as in Miller, or here, to settle

a lawsuit.

Of course, “the ‘narrow tailoring’ requirement of strict

scrutiny allows the States a limited degree of leeway in furthering

[state] interest [in complying with the results test].” Bush, 517

U.S. at 977, 116 S.Ct. at 1960. Thus, latitude is afforded the

state’s judgment in reaching a settlement. And, contrary to the

state’s expressed concerns, it is highly unlikely that the scrutiny

required by Shaw or Bush will reopen hundreds of extant

redistricting consent decrees or settlements. As the new

millennium dawns, redistricting will be undertaken by legislators

across the nation with the precepts of the Constitution, as

articulated in Shaw and its progeny, fully in mind. The past

decade’s settlements are about to become moot.

The state also asserts that these plaintiffs should not

rely on a linkage argument, because the state itself declines to do

so while defending Act 780. Surely the state should not ignore the

provisions of Louisiana’s Constitution that strongly support the

election of judges by the people and correlate with the linkage

28
argument.23 Such provisions are intended to be relied upon by

Louisiana’s citizens.

Finally, the state contends that the district court has

already rejected the linkage argument, and we should respect its

ruling. What the state omits to note is that the district court’s

discussion of linkage occurred in the very opinion in which it

rejected a finding of vote dilution in the 23rd JDC. Clark, 777

F.Supp. at 466-68. The court’s opinion discussed linkage

concerning only the 11 districts in which it then found voting

rights violations, and even as to those districts, the court did

not consider linkage in the way prescribed later by Houston

Lawyers’ and LULAC, supra. The district court’s earlier decision

is irrelevant to the present case.24

23
Since 1868, the Louisiana Constitution has consistently required
election of judges by the qualified voters in their respective districts. See
e.g., Const. of State of Louisiana 1974, Art. 5, § 22(A), Art. 14, § 16. The
trial court previously acknowledged that Louisisna’s “constitutional and
statutory policies demonstrate a strong preference for the election of judicial
officers by majority vote.” Clark, 777 F.Supp. at 466.
24
The state cannot rely on the need to obtain Section 5 preclearance
as a compelling state interest, since DOJ’s policies in the early 1990's, which
were apparently followed in this case, have been held to exceed its Section 5
authority. Section 5 preclearance does not, by itself, guarantee that the
legislation comports with constitutional requirements: “Indeed, the Voting Rights
Act and our case law make clear that a reapportionment plan that satisfies § 5
still may be enjoined as unconstitutional.” Shaw I, 509 U.S. at 654, 113 S.Ct.
at 2831; see also Miller, 515 U.S. at 922, 115 S.Ct. at 2491 (“We do not accept
the contentions that the State has a compelling interest in complying with
whatever preclearance mandates the Justice Department issues.”). Moreover, the
Court has held that a proposed voting change may not be denied preclearance just
because it violates Section 2. Reno v. Bossier Par. Sch. Bd., (Bossier I), 520
U.S. 471, 486-87, 117 S.Ct. 1491 (1997). The second Supreme Court case involving
Bossier Parish held that a discriminatory but nonretrogressive purpose is
insufficient to deny preclearance. Reno v. Bossier Parish Sch. Bd., (Bossier
II), ____ U.S. ____, 120 S.Ct. 866 (2000). Finally, Section 5 may not be used

29
2. Whether Act 780 is narrowly tailored

Even assuming that Louisiana had a strong basis in

evidence for assuming that a Section 2 violation would be found in

the 23rd JDC, the record evidence fails to establish that Act 780

is narrowly tailored. Since “[r]edistricting to remedy found

violations of § 2 of the Voting Rights Act by definition employs

race,” Clark v. Calhoun County, Miss., 88 F.3d 1393, 1408 (5th Cir.

1996), remedial racial subdistricting does not automatically

violate the Fourteenth and Fifteenth Amendments. But although the

state has “a ‘significant state interest in eradicating the effects

of past racial discrimination’ . . . compliance with federal

antidiscrimination laws cannot justify race-based districting where

the challenged district was not reasonably necessary under a

constitutional reading and application of those laws.” Miller, 515

U.S. at 920-21, 115 S.Ct. at 2490-91.

The district court held that Judge Turner’s affidavit,

coupled with the Clark litigation history, was sufficient to

preclude a genuine issue of material fact as to the

as a vehicle to require maximization of majority-minority districts apart from
the nonretrogression principle in the statute. “[T]he purpose of § 5 has always
been to insure that no voting-procedure changes would be made that would lead to
a retrogression in the position of racial minorities with respect to their
effective exercise of the electoral franchise.” Beer v. United States, 425 U.S.
130, 141, 96 S.Ct. 1357, 1363 (1976). As Bush makes clear, “[n]onretrogression
is not a license for the State to do whatever it deems necessary to ensure
continued legal success; it merely mandates that the minority’s opportunity to
elect representatives of its choice not be diminished, directly or indirectly,
by the State’s actions.” 517 U.S. at 982-83, 116 S.Ct. at 1963.

30
“reasonableness” of the remedy. This reasoning is conclusional

rather than analytical. Narrow tailoring demands an explanation

that the district chosen entails the least race-conscious measure

needed to remedy a violation. Judge Turner’s affidavit does not

help in this regard since it fails to consider alternative

districting plans presented in the summary judgment record or the

percentage of white crossover voting that might justify smaller

racial super-majorities in the districts. The parties disagree,

and the record does not resolve the uncertainty surrounding these

subdistricts, which have unusually high white (80%) and black (75%)

populations. In short, genuine, material fact issues precluded the

district court’s peremptory conclusion that the 23rd JDC is

narrowly tailored.

C. Fifteenth Amendment

The Fifteenth Amendment provides: “The right of citizens

of the United States to vote shall not be denied or abridged by the

United States or by any State on account of race, color, or

previous condition of servitude.” U.S. Const. amend. XV, § 1; see

also Section 2(a) of the Voting Rights Act. The appellants contend

that Act 780 abridged their right to vote for all district judges

in the 23rd JDC by instituting racially gerrymandered subdistricts.

As this court has recognized, “[s]ubdistricting would partially

disenfranchise citizens to whom all district judges in a county are

31
now accountable.” League of United Latin American Citizens, Inc.

v. Clements, 999 F.2d 831, 873 (5th Cir. 1993). Thus,

subdistricting done for predominately racial reasons violates the

Fifteenth Amendment and Section 2(a).

The district court summarily dismissed these claims, as

it held that “there was no constitutional right to vote for a

certain number of judges.” This general principle is undoubtedly

sound, since “‘judges need not be elected at all,’” Chisom, 501

U.S. at 400, 111 S.Ct. at 2366 (citation omitted), the U.S.

Constitution does not guarantee the right to vote for some minimum

number of judges. However, having decided in its state

constitution to elect its judges, Louisiana cannot abridge the

right of citizens in the 23rd JDC to vote for trial judges for

predominately racial reasons. Redistricting legislation must still

pass Fifteenth Amendment muster:25

All citizens, regardless of race, have an
interest in selecting officials who make
policies on their behalf, even if those
policies will affect some groups more than
others. Under the Fifteenth Amendment voters
are treated not as members of a distinct race
but as members of the whole citizenry.

Rice, __ U.S. __, 120 S.Ct. at 1060. As Chisom explains, judges

are “representatives” that engage in policymaking at some level,

25
See Rice v. Cayetano, __ U.S. __, 120 S.Ct. 1044, 1060 (2000)(quoting
Gomillion, 364 U.S. at 345, 81 S.Ct. at 129): “[s]tate authority over the
boundaries of political subdivisions, ‘extensive though it is, is met and
overcome by the Fifteenth Amendment to the Constitution.’” .

32
501 U.S. 380, 399, 111 S.Ct. 2354, 2366 (1991). Thus, the

Fifteenth Amendment “establishes a national policy . . . not to be

discriminated against as voters in elections to determine public

governmental policies or to select public officials, national,

state, or local.” Terry v. Adams, 345 U.S. 461, 467, 73 S.Ct. 809,

(1953).

The state objects that allowing consideration of a

Fifteenth Amendment claim in this case will affect all voting

rights cases in which majority-minority remedial subdistricts have

been created. Because of the nature of the elective offices at

issue here, we disagree. It is difficult to hypothesize a denial

or abridgement of the right to vote effected by the remedial

subdistricting of a multimember legislative body. Indeed, the

Supreme Court has rejected application of the Fifteenth Amendment

to vote dilution causes of action. See Bossier II, _____ U.S. at

____, 120 S.Ct. at 875, n.3, (2000), (citing Mobile v. Bolden, 446

U.S. 55, 100 S.Ct. 1490 (1980)). When a legislative body is

apportioned into districts, every citizen retains equal rights to

vote for the same number of representatives, even if not for all of

them, and every citizen’s ballot is equally weighed.

But judicial elections for trial judges are different.

Each judge presides individually and independently over the entire

23rd JDC. When subdistricts are created, voters are denied the

33
right to elect officers who (a) may preside over cases in which the

voters become involved and (b) will inevitably affect the

district’s law and policies. If the subdistricting is done with

racially discriminatory intent, voters in each subdistrict are just

as disenfranchised with respect to the judges they are cut off from

electing as were the black voters excluded from the city limits of

Tuskagee, Alabama in Gomillion. In this case, black voters who

could previously vote for all four district judges may now vote for

only one of five.

It is also no objection to assert that because the

districts are not racially pure, no Fifteenth Amendment violation

may be inferred. In Rice, the Supreme Court’s majority

acknowledged that Hawaii’s classification of native Hawaiian voters

on the basis of “ancestry” had a somewhat arbitrary racial impact,

120 S.Ct. at 1056-57, but because it was intentionally

discriminatory, a Fifteenth Amendment violation resulted.

As with the Fourteenth Amendment racial gerrymandering

claim, however, the question of discriminatory intent to

disenfranchise voters of the 23rd JDC in violation of the Fifteenth

Amendment and Section 2(a) cannot be resolved as a matter of law,

and this claim must also be remanded for trial. Unlike the

Fourteenth Amendment claim, there is no room for a compelling state

interest defense, as the Fifteenth Amendment’s prohibition is

absolute.

34
 IV.

CONCLUSION

For the foregoing reasons, the district court erred in

granting summary judgment for the state. The case is reversed and

remanded for further proceedings in accordance with this opinion.

REVERSED and REMANDED.

35