WASHINGTON, D.C. — On Monday, the nation’s most conservative circuit court voided a decision that protected fair state Supreme Court representation for Black voters in Louisiana. The entire court will now rehear the case.
Monday’s order in Chisom v. Louisiana voided a decision upholding a 1992 consent decree — which requires Louisiana to have a majority-Black district in Orleans Parish for state Supreme Court elections — and is the latest in a series of anti-democratic actions by the circuit in recent months. This consent decree was crucial as it allowed Black voters the opportunity to elect a candidate of their choice to the state’s highest court, an opportunity Black voters did not have prior to the agreement.
What does this mean for Black voters in Louisiana and how did we get here?
Louisiana has a unique method of electing state supreme court justices due to a long history of discrimination.
Before the consent decree’s implementation, Louisiana had a bizarre and discriminatory system for electing Louisiana Supreme Court justices and voters had never elected a Black Supreme Court justice. Under the pre-1992 plan, five justices were elected from five single-member districts and two justices were elected from one multi-member district anchored in New Orleans.
In 1986, Black voters in Louisiana filed a lawsuit alleging that this electoral system violated the 14th and 15th Amendments as well as Section 2 of the Voting Rights Act (VRA). Black voters from Orleans Parish, the largest county in the multi-member district, argued that the state combined the majority-Black Orleans Parish with three neighboring counties to dilute the voting strength of Black voters. As a result, despite Black voters comprising half of all registered voters in Orleans Parish when the lawsuit was originally filed, they could not elect a candidate of their choice.
Eventually, the parties entered into a consent decree that ultimately led to Louisiana’s first Black Supreme Court justice and set up a new system to afford Black voters the opportunity to elect their desired candidate to the Louisiana Supreme Court.
Today, the Supreme Court’s seven justices are elected through partisan elections for ten year terms. Justices are elected to represent specific districts and Black voters have the opportunity to elect a candidate of their choice in District 7 which covers Orleans Parish.
In 2021, Landry asked the district court that facilitated the 1992 consent decree to dissolve it, but the district court declined to take such a drastic measure after finding that the agreement was still necessary to ensure compliance with the Voting Rights Act.
In October, three judges on the 5th Circuit also affirmed this decision agreeing with the lower court that the consent decree is still very much necessary for Voting Rights Act compliance as “the State provided no evidence, plans, or assurances of compliance with Section 2 of the VRA in the event that the Consent Judgment is terminated.”
The 5th Circuit’s affirmation was not enough, so Republicans continued their attack.
Undeterred, Republicans continued their attack on Louisiana’s state Supreme Court districts and the Voting Rights Act. Gov. Jeff Landry (R) asked the entire 5th Circuit to rehear the case and dissolve the agreement that ensures Black voters can elect their candidate of choice in one state Supreme Court district. Landry received support for his position from two other Republican attorneys general in the form of a “friend of the court” brief.
Wesley Muller’s reporting in the Louisiana Illuminator highlights how rare it is for the 5th circuit to grant such a request. “During the 2021-2022 judicial year, the 5th Circuit granted only 2% of requests for en banc rehearings, according to the clerk’s annual report.” According to the 5th Circuit’s Annual Reports the court reheard just four cases from 2021-2022 and nine from 2022-2023, but despite their past selectiveness the court seems to be granting rehearings more often.
In recent months, this trend has specifically impacted pro-voting decisions as the 5th Circuit has agreed to rehear important pro-voting decisions that would positively impact voters if allowed to stand. The 5th Circuit just reheard a pro-voting victories in Mississippi and is set to reheard another out of Texas. Now adding Chisom to their docket, the 5th Circuit has agreed to reconsider three major voting rights cases over the last several months alone.
The 5th Circuit’s rules make these rehearings worse for voters in the meantime.
According to the 5th Circuit’s rules, when the court agrees to grant rehearing en banc, the previous opinion is voided unless otherwise expressly provided. This means that if the 5th Circuit agrees to rehear pro-voting decisions, those decisions are invalidated until the court makes its new ruling. It can take months, sometimes a year, for the court to issue its new decision, and in the meantime, voters are left unprotected by the panel’s previous ruling. In the case of this lawsuit, the opinion that upheld the decades-old consent decree is now nullified. Luckily, the consent decree itself remains intact for now as the district court order that upheld the consent decree remains.
Recently, Landry asked the Legislature to redraw the districts due to a different lawsuit.
In December 2023, five of the state’s seven Supreme Court justices sent a letter to the Legislature requesting a newly drawn map for state Supreme Court districts. Specifically, they asked for an additional majority-minority district, which would give Black voters the ability to elect a candidate of their choice in two districts as opposed to just one. Doing so would also resolve another, more recently filed lawsuit, Louisiana State Conference of the NAACP v. Louisiana that challenged the VRA-compliance of the current map.
In their letter, signed by four Republicans and the only Democrat, the justices outlined a redistricting proposal, which they asked the Legislature to adopt without change given the difficulty of “reaching a supportive majority of the court.”
However, during the Legislature’s special session, no changes were made to the state’s Supreme Court districts. Instead, the future of a fair state Supreme Court map now lies in the hands of the full 5th Circuit.
Now, the 5th Circuit will rehear Chisom and the state’s Supreme Court districts lay in the balance.
Republicans’ new scheme of abusing rehearing requests could have devastating effects for voters of color across the South. If Chisom is overturned, Black voters in Louisiana will be harmed as representation on the Supreme Court will be threatened. Importantly, this case is the reason that state Supreme Court elections are covered under the Voting Rights Act, if the 5th Circuit were to rule in favor of Republican officials, it could be yet another critical blow to the Voting Rights Act. Oral argument before the entire 5th Circuit will take place during the week of May 13, 2024.