Republican Officials Are Exploiting Procedure in the 5th Circuit To Harm Voters

WASHINGTON, D.C. —  An amicus brief submitted by Republican attorneys general from Texas and Mississippi reveals a cynical new scheme to nullify pro-voting decisions in the 5th U.S. Circuit Court of Appeals.

Citing “federalism concerns” Republican attorneys general from Texas and Mississippi (Ken Paxton and Lynn Fitch, respectively) submitted an amicus brief in Chisom v. Louisiana — a case that eliminated Louisiana’s discriminatory system for electing justices to the Louisiana Supreme Court — in support of Louisiana Attorney General and soon-to-be governor Jeff Landry’s (R) request for the entire 5th U.S. Circuit Court of Appeals to rehear the case. 

This “friend-of-the-court” brief, authored by officials who are in no way impacted by how Louisiana elects its Supreme Court justices, is a glaring example of how Republicans are brazenly weaponizing appellate procedure in an attempt to undo pro-voting decisions from the Circuit’s less conservative members. The brief follows a pattern of unabashed Republican officials asking conservative courts to carry their anti-voting agendas forward. 

Republicans are asking the 5th Circuit to reconsider a landmark case with implications for Black representation on Louisiana’s highest court. 

Republican attorneys general are asking the entire 5th Circuit to rehear a case that maintains a 1992 consent decree requiring Louisiana to have a majority-Black district in Orleans Parish for state Supreme Court elections. This consent decree is crucial as it allows 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. 

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, they could not elect a candidate of their choice because they were in a multi-member district with surrounding majority-white areas. 

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. In 2021, Landry asked the court to dissolve the consent decree, but the district court declined to take such a drastic measure after finding that the agreement was still necessary to ensure compliance with the VRA. 

Finally, 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 VRA 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.” Undeterred, Landry has asked the entire 5th Circuit to rehear the case and reconsider this key protection for voters. 

In a new amicus brief, Republican officials in Mississippi and Texas are supporting Louisiana Republicans’ efforts to undo a pro-voting decision. 

The brief has one central argument: the decision to uphold the consent decree is “profoundly mistaken” because it presents “federalism concerns.” The brief argues that by upholding the consent decree, federal courts are improperly regulating state and local government. 

The brief argues that the decision to uphold Louisiana’s current Supreme Court election method “entrenches harms to the State and indefinitely forces decades-old political choices upon it.” However, without protections, Black voters face the possibility of returning to a method of judicial elections that threatens their voting power. 

Paxton and Fitch’s peculiar interest in this case reveals a more sinister scheme. By affirming their federalism concerns, the 5th Circuit could greenlight and give credence to the argument that protections for minority voters in the South are no longer necessary: a theory courts themselves have dispelled.  

Landry is not the first to ask for a pro-voting decision to be reheard in the 5th Circuit. 

On Aug. 4, the 5th Circuit stunned the country when it overturned Mississippi’s Jim Crow-era felony disenfranchisement provision. The 2-1 opinion authored by Democratic-appointed judges held that the provision violated the 8th Amendment’s prohibition on cruel and unusual punishment. 

Unfortunately, this momentous victory was short-lived. Fitch — Mississippi’s attorney general — asked the 5th Circuit to rehear the case en banc and almost two months later, the Circuit granted her request and voided the panel’s decision. Now, the case will be heard by the entire court, which leans extremely conservative. 

Perhaps taking Fitch’s lead, judges on the court have become similarly emboldened to now use this work-around themselves in a lawsuit out of Galveston County, Texas. On Nov. 10, the 5th Circuit issued an order affirming that the districts for Galveston County, Texas’ legislative body violate Section 2 by diluting Black and Latino voting power. In that same order, however, the court asked the entire 5th Circuit to rehear the case and reconsider its prior precedent. The pro-voting decision requiring Galveston County to redraw its districts is now paused while the court decides if it will in fact rehear the case. 

After these unprecedented and bad-faith rehearing requests, Landry is now asking the 5th Circuit to reconsider Chisom as well.

The 5th Circuit is notorious for its conservative composition and Republicans are trying to take advantage of that. 

An already conservative leaning circuit, Republicans “transformed” the 5th Circuit into an ultra-conservative court “dominated by partisans and ideologues” after former President Donald Trump appointed and the Senate confirmed a stunning six judges to the court. Now, Republicans go to the court with their most radical and novel legal theories in hopes that even when they lose, they can win. 

Republicans’ new scheme could have devastating effects for voters of color across the South. If Chisom is reheard and overturned, Black voters in Louisiana will be harmed as representation on the Supreme Court will be threatened. In Texas, Black and Latino voters could lose representation in their local government. In Mississippi, formerly disenfranchised voters will continue to live under a Jim Crow-era provision of the state constitution and miss out on the opportunity to be heard at the ballot box.

By filing this brief in a case completely unrelated to their states, Republican officials are clearly attempting to normalize exploiting procedure when they lose, so they can win. They are continuously engaging in a cynical ploy to advance anti-democracy and anti-voting policies and maps. This “friend of the court” brief is just one glaring example, that would otherwise go unnoticed, of the many ways they are exploiting the judicial system to harm voters. 

Read the amicus brief here.

Learn more about the case here.

Learn more about the history of the case here.