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More Section 3 Preclearance Needed in Louisiana

A recent ProPublica article points to a number of pending lawsuits aimed at restoring key federal protections against racial voting discrimination. Up until last summer, certain states and jurisdictions with histories of preventing African Americans from voting were forced to have all election changes cleared by the federal government before implementation. That process, called “preclearance,” was a provision of Section 4 and 5 of the Voting Rights Act, both of which were neutralized by the U.S. Supreme Court in the Shelby v. Holder ruling last July.

Since then, civil rights advocates have been super busy suing states and local jurisdictions where new election laws—and even some old ones—could make it harder for people of color to vote. The goal of those lawsuits are to bring the jurisdictions back under preclearance through Section 3 of the Voting Rights Act. Kara Brandeisky at ProPublica provides a useful roundup of those cases. She not only includes the more high-profile cases, like the legal challenges against voter ID laws in Texas and North Carolina, but also more obscure cases happening in Alaska, Montana and Terrebonne Parish (county) Louisiana, which I blogged about here at PolicyShop.

But she overlooked one in Louisiana: Kenneth Hall v. State of Louisiana. This case, which I covered at Facing South last year, is similar to the Terrebonne case in that it involves judicial elections and redistricting.

It takes place in Baton Rouge, where there are five municipal judicial election districts, with each district responsible for electing a judge to the city court system. White judges have historically held the majority of judge seats in the city and today have three of the five seats. But as of the 2000 Census, the majority population in Baton Rouge has been African Americans. Despite having 55 percent of the population today, black Baton Rouge residents are packed into just two districts for electing judges.

Redistricting processes—congressional, legislative and even county districts—are supposed to occur every ten years in alignment with the Census to make sure they comply with federal civil rights laws. This is to ensure that racial groups aren’t prevented from electing their preferred candidates due to minority status. If those federal laws were enforced in the Baton Rouge case, this would mean that African Americans would be spread across three districts, not packed into two, with each of those districts able to elect a judge that reflects their voting interests.

The Baton Rouge city judicial district lines were not updated after the 2000 Census, though, to reflect the change in the African American population from minority to majority. Today, while white residents are only 45 percent of the population, they are spread across three predominantly white districts that get to elect 60 percent of the judges.

Apparently there is no law in Louisiana that compels Census-updates for municipal judicial elections, even though federal laws call for such updates. So Baton Rouge resident Kenneth Hall is suing the state and the city so that this will be corrected.

State legislators have introduced laws in the general assembly in the past to address this, with plenty of discussion about the legal obligations under federal civil rights statutes for redistricting. But they’ve been defeated every time. This is why Hall’s lawyers are pushing for a Section 3 “bail in” for preclearance for the city. They are alleging that state legislators are preventing black Baton Rouge voters from having district lines that reflect their population numbers on purpose. Their original claim from last year did not ask for the preclearance bail in, but they modified their complaint in October to conclude it.

“We added [bail-in] because of the state’s intentional denial of voting rights for African Americans to elect candidates of their choice,” said Hall’s attorney Ronald Johnson in a phone interview last week. “We believe the state is intentionally not complying with Section 2 of the Voting Rights Act and the 14th and 15th Amendments.”

Those laws and amendments when enforced are supposed to protect people of color from having their voting rights abridged or denied, or from having their votes weigh less than those of white voters. Before it was dismantled, Section 5 of the Voting Rights Act was supposed to catch civil rights redistricting violations like this, especially given that Louisiana was subject to preclearance under that provision. But this particular flaw in the Baton Rouge law somehow flew under the radar and was never reviewed by the federal government.

But the violation has gone on for too long, says attorney Johnson, which is why he says they need Section 3 bail-in preclearance coverage to make sure that it’s finally corrected and never returns to the flawed system. Louisiana’s Jim Crow-soaked voting discrimination history, and also present-day cases like this one and the Terrebonne case are examples of why Congress was correct to have this state captured under preclearance. to begin with.  

As stated in Johnson’s and Hall’s complaint, “Time and time again, and to this date, Louisiana has, in the realm of voting, engaged in intentional and purposeful racial discrimination. Given the recent loss of Section 5 protections for Louisianians, it is arguable that the ‘broad remedial purpose’ that motivated Section 3(c) [bail-in] was designed for a situation exactly like this one: to protect the ability of Louisiana citizens to achieve longstanding protection from pernicious and persistent racial discrimination in voting.”