In September 1986, Ronald Chisom, a New Orleans-based civil rights organizer, and several others brought a lawsuit challenging the way that voters elected Louisiana Supreme Court justices. At the time, Louisiana had a peculiar system: While there were seven elected justices on the state Supreme Court, there were only six districts from which the justices were elected. The lawsuit, Chisom v. Louisiana, argued that this system wasn’t a quirk: It was designed with discrimination in mind.
What emerged from the case was a decadeslong saga that included a U.S. Supreme Court decision, a consent decree and a skirmish over chief justice control in the state Supreme Court. Nearly 40 years later, the same case is active and awaiting a decision from the 5th U.S. Circuit Court of Appeals. How did we get here?
After SCOTUS got involved, an agreement was reached in 1992.
Louisiana is one of 24 states that elects state Supreme Court justices. However, in 1986, its unique system elected five justices from five single-member districts and two justices from one multi-member district anchored in New Orleans. Black voters from Orleans Parish, the largest county in the multi-member district, argued that the state merged the majority-Black Orleans Parish with three neighboring counties to dilute the voting strength of Black voters.
At the time, more than half of the registered voters in Orleans Parish were Black, while in the three neighboring counties, more than 75% of the registered voters were white. In other words, a single-member district around Orleans Parish would allow Black voters to elect a Supreme Court justice of their choice. But, by merging Orleans Parish with neighboring white regions, the preferences of the white electorate prevailed. As a result, no Black person had ever been elected to the Louisiana Supreme Court. The Chisom lawsuit alleged that this scheme violated Section 2 of the Voting Rights Act (VRA) and the 14th and 15th Amendments.
The claims were initially dismissed, but the U.S. Supreme Court took up the case in the 1990s after the 5th Circuit ruled that Section 2 did not apply to judicial elections. The Supreme Court disagreed: “If executive officers, such as prosecutors, sheriffs, state attorneys general, and state treasurers, can be considered ‘representatives’ simply because they are chosen by popular election, then the same reasoning should apply to elected judges,” Justice John Paul Stevens wrote in the 1991 Supreme Court opinion reversing the 5th Circuit’s decision.
Ultimately, the parties entered into a court-enforced agreement called a consent decree in 1992. The terms of the agreement required the Louisiana Legislature to shift judicial district lines so that by Jan. 1, 2000, the controversial multi-member district would no longer exist. Instead, all justices would be elected from single-member districts, including from “a single-member district that is majority black in voting age population that includes Orleans Parish in its entirety.”
To account for the two justices who held seats from the soon-to-be-defunct multi-member district, the 1992 consent decree created a temporary eighth seat on the Louisiana Supreme Court, nicknamed the Chisom seat after the lawsuit’s lead plaintiff. That year, Louisiana elected its first Black Supreme Court justice, Revius Ortique Jr., to serve in the Chisom seat. After Ortique retired in 1994, Justice Bernette Johnson held the Chisom seat from 1994 until 2000, when the state dissolved the Chisom seat and implemented a judicial map with the required majority-Black district. In 2000, Johnson won election in the newly constituted Orleans Parish district.
The case was reopened in 2012 over chief justice disagreements.
The next legal skirmish emerged in 2012, when the chief justice on the court announced her retirement. Under Louisiana law, the chief justice position is filled by the longest-serving justice on the court. That meant Johnson was slated for the position.
However, Johnson’s colleagues on the Louisiana Supreme Court contested that her service from 1994 until 2000 — the time that she served on the Chisom seat — did not count toward her tenure on the court.
“It was clear to me I would be the next person in line to be chief justice because I was the justice with the longest term of service, but there were some problems with that,” Johnson explained at a talk with law students in 2021. “So we went back to federal court, asked the court to reopen that litigation and make it absolutely clear that the consent decree said that my term of service from 1994 until 2000 counted toward my seniority.”
A district court granted Johnson’s request to enforce the consent decree and she served as chief justice until her retirement in 2020.
“The situation on the ground is largely the same”: Civil rights groups are pushing back against the state’s attempt to undo the 1992 consent decree.
In 2021 — ahead of the latest redistricting cycle — the state of Louisiana moved to end the consent decree, arguing that lawmakers needed more flexibility to redraw districts without the VRA-compliant requirements imposed in 1992. A district court declined to grant this request, leading to the current litigation before the 5th Circuit.
In early March, the Louisiana solicitor general stood before the 5th Circuit and began her argument by saying, “This case is not about dissolving the majority-minority district…that was created…pursuant to this litigation…This case is about an incorrect ruling by the district court.”
“But that inquiry,” Nora Ahmed, legal director of the ACLU of Louisiana and counsel for Johnson, countered to Democracy Docket in an email, “doesn’t take away from the reality that a ruling reversing the lower court here would likely be cataclysmic for Black voters in Louisiana.”
The state itself admitted in earlier proceedings that the move to dissolve the consent decree was made so that the Legislature could have “a clean state” for redistricting. Leah Aden, the deputy director of litigation at the NAACP Legal Defense Fund and counsel for the original plaintiffs, told Democracy Docket that if the consent decree is dissolved, the best case scenario would ensure the continued existence of a district where Black voters in Orleans Parish could elect a candidate of their choice. Ideally, there would not be any relevant line drawing until 2030.
However, Aden suggested that the actions of state lawmakers and the attorney general cast doubt on the promise that they would not dismantle Black political power. There is a case currently awaiting action before the U.S. Supreme Court over Louisiana’s congressional map drawn with 2020 census data. The case is paused pending the decision in another redistricting case before the Court, but a federal judge ruled in June 2022 that Louisiana’s map — drawn by the state Legislature and defended in court by the attorney general — likely violated Section 2 of the VRA.
“The fact that [the state] was recalcitrant in recognizing Justice Johnson’s seniority back in 2012, the fact that they came into court with what we have described as pretextual reasons in this case for why they need to close the consent decree,” raises concerns, according to Aden, who noted examples that would make one question the latest attempt to undo federal oversight. “These are just not legitimate reasons for wanting to close the consent decree…They’re unwilling to show that this district is no longer needed.”
Unlike other court decisions, consent decrees function partly as contracts, Aden explained, and are subject to high burdens to end those contracts. The lawyers representing Black voters in Orleans Parish, like Aden and Ahmed, argue that the state has not provided any evidence that Louisiana has advanced far enough forward in terms of racially polarized voting and representation to justify dissolving the consent decree.
“This consent decree remains necessary or at least the state hasn’t shown that it no longer is needed,” Aden added. “This consent decree has been working, but there’s a risk that without it, we will return to the landscape that we had in the late 1980s and 1990s where it was an all white judiciary and that’s unacceptable.”
“In short, have circumstances materially changed…since the consent decree went into effect?” Ahmed questioned. “The sad reality is, the answer is no, because the situation on the ground is largely the same for Black Louisianians.”
Madeleine Greenberg contributed research to this story.