     Case: 19-30665   Document: 00515471087      Page: 1   Date Filed: 06/29/2020




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                   United States Court of Appeals
                                                                            Fifth Circuit

                                                                          FILED
                                 No. 19-30665                         June 29, 2020
                                                                     Lyle W. Cayce
VINCENT FUSILIER, SR., Reverend; LIONEL MYERS;                            Clerk
WENDELL DESMOND SHELBY, JR.; DANIEL TURNER, JR.;
TERREBONNE PARISH BRANCH NAACP,

            Plaintiffs - Appellees

v.

JEFFREY MARTIN LANDRY, Esq.,
Attorney General for the State of Louisiana, in his official capacity,

            Defendant - Appellant



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


Before HIGGINBOTHAM, JONES, and DUNCAN, Circuit Judges.
EDITH H. JONES, Circuit Judge:
      African-American voters and the Terrebonne Parish NAACP filed suit in
2014 to challenge the electoral method for Louisiana’s 32nd Judicial District
Court (“32nd JDC”).     They asserted that at-large elections for the judges
produce discriminatory results, violating Section 2 of the Voting Rights Act,
and have been maintained for a discriminatory purpose in violation of that
statute and the Fourteenth and Fifteenth Amendments.            After trial, the
district court upheld both claims.    Eventually, it ordered a remedial plan
breaking the 32nd JDC into five single-member electoral subdistricts.
Louisiana’s Attorney General appealed.
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                                     No. 19-30665
      Careful review persuades us that the district court erred legally and
factually. Specifically, the court erred in holding that weak evidence of vote
dilution could overcome the state’s substantial interest in linking judicial
positions to the judges’ parish-wide jurisdiction, and it erroneously equated
failed legislative attempts to create subdistricts for the 32nd JDC with a
racially discriminatory intent. We REVERSE. 1
                                   BACKGROUND
      The 32nd JDC encompasses Terrebonne Parish.                   Terrebonne Parish
begins south of New Orleans and covers territory extending well into the
bayous and ultimately to the Gulf of Mexico.              Formerly the site of sugar
plantations, the parish became a hub for the offshore oil and gas industry
seventy years ago. The Parish seat is located in Houma, population over
30,000, with a few smaller towns and Cajun residents still living among the
bayous. Of the parish’s population, about ten percent of the residents still
spoke French at home according to the 2010 Census; slightly less than 19% of
the residents were black.
      Since its creation in 1968, elections for the five judicial seats in the 32nd
JDC have been conducted on an at-large basis. The plaintiffs’ lawsuit took
issue with this electoral method, asserting claims under Section 2 of the Voting
Rights Act (“VRA”) and unconstitutional racial discrimination. They initially
named as defendants then-Louisiana Governor Piyush “Bobby” Jindal,
Attorney General James “Buddy” Caldwell, and Secretary of State Tom
Schedler.    During discovery, the plaintiffs, without explanation, moved to
dismiss the Secretary of State with prejudice. The district court granted that
motion.



      1   The issuance of this opinion renders moot the state’s motion to stay the district
court’s final judgment and injunction pending appeal.
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                                  No. 19-30665
      After an eight-day bench trial, the district court held in 2017 that
Louisiana’s use of an at-large voting system for the 32nd JDC “deprives black
voters of the equal opportunity to elect candidates of their choice in violation
of Section 2” of the VRA, and that the voting system “ha[d] been maintained
for that [discriminatory] purpose, in violation of Section 2 and the United
States Constitution.” The court reached these conclusions after rejecting the
defendants’ standing argument and their claim of Eleventh Amendment
immunity.
      The district court invited the parties to submit proposals “regarding the
appropriate remedy for the court and legislature to take.”           Neither the
defendants nor the Louisiana legislature, for two legislative sessions, offered a
plan conforming to the judgment. A new judge was substituted after the trial
judge passed away, and in early 2019 the court determined that it “would be
aided by the technical expertise of a Special Master” in reviewing the plaintiffs’
proposed districting plans. The Special Master endorsed, and the district court
adopted, a plan to divide the 32nd JDC into five single-member subdistricts,
one of which was created as a likely majority-black district. The district court
then enjoined the Governor and Attorney General “from administering,
implementing, or conducting any future elections for the 32nd JDC in which
[judges] are elected on an at-large basis;” commanded them to “ensure that all
elections for the 32nd JDC . . . be conducted using the remedial redistricting
[p]lan;” and ordered them to “take all steps necessary to implement the five
single-member district plan . . . in order to allow district-based elections to
proceed.”   Only the Attorney General has appealed from this adverse
judgment.
                          STANDARD OF REVIEW
      This court reviews questions of subject matter jurisdiction, including
standing, de novo. Ctr. for Individual Freedom v. Carmouche, 449 F.3d 655,
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                                  No. 19-30665
659 (5th Cir. 2006). We likewise review de novo “the legal standards the
district court applied to determine whether Section 2 has been violated,” but
“we review the district court’s findings on the Gingles threshold requirements
and its ultimate findings on vote dilution for clear error.” Sensley v. Albritton,
385 F.3d 591, 595 (5th Cir. 2004). A factfinding of intentional discrimination
in a voting rights case is also reviewed for clear error. United States v. Brown,
561 F.3d 420, 432 (5th Cir. 2009). “The clear error standard precludes reversal
of a district court’s findings unless we are ‘left with the definite and firm
conviction that a mistake has been committed.’” Rodriguez v. Bexar County,
385 F.3d 853, 860 (5th Cir. 2004) (quoting Anderson v. City of Bessemer City,
470 U.S. 564, 573, 105 S. Ct. 1504, 1511 (1985)).
                                 DISCUSSION
      The Attorney General challenges the plaintiffs’ standing to assert their
claims and raises an Eleventh Amendment sovereign immunity defense. He
contends that the plaintiffs’ vote dilution claim fails the preconditions
established in Thornburg v. Gingles, 478 U.S. 30, 106 S. Ct. 2752 (1986). In
particular, he asserts that the court discounted this court’s en banc decision in
League of United Latin Am. Citizens, Council No. 4434 v. Clements, 999 F.2d
831, 868 (5th Cir. 1993) (“LULAC”), which holds, as a matter of law, that a
state’s “substantial” “linkage interest” in at-large judicial elections “may be
overcome only by evidence that amounts to substantial proof of racial dilution.
Otherwise, the at-large election of district court judges does not violate
Section 2.”   Finally, he argues that the district court erred in finding
intentional discrimination.    We are persuaded by the last two of these
contentions and reverse on that basis.
                                         I
      Taking a novel position in voting rights litigation, the Attorney General
argues that the plaintiffs lack Article III standing to sue after they dismissed
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                                        No. 19-30665
the Secretary of State and, alternatively, the Eleventh Amendment bars this
suit. Neither argument works. In order to have constitutional standing, a
plaintiff must establish (1) an injury in fact that is (2) fairly traceable to the
challenged action of the defendant and (3) redressable by a favorable ruling.
Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61, 112 S. Ct. 2130, 2136 (1992).
Although the Governor has not appealed, the district court must have had
jurisdiction to find liability and fashion a remedial order against the Governor.
Further, standing must exist at all stages of the litigation.                   Fontenot v.
McCraw, 777 F.3d 741, 747 (5th Cir. 2015). The plaintiffs plainly had standing
to maintain suit against Louisiana’s Governor. Without raising any complaint
in the past about his standing, the Governor has been a party defendant in
nearly all of Louisiana’s voting rights cases challenging judicial districts 2, and
as chief executive, he plays a pivotal role in the enactment of legislation that
could address any adverse federal judgment. Cf. Allstate Ins. Co. v. Abbott,
495 F.3d 151, 159 (5th Cir. 2007) (“A case brought against a state officer in his
official capacity is essentially a suit against the state. . . . Because the state
itself is a party, causation and redressability are easily satisfied in this
case. . . . A declaration of unconstitutionality directed against the state would
redress [the plaintiff’s] injury . . . .”). 3 In contrast, the Secretary of State,
although an elected official 4, is responsible for conducting elections only after
the districts have been changed, whether by law or by court order.                       The


       2 See, e.g., Chisom v. Roemer, 501 U.S. 380, 384, 111 S. Ct. 2354, 2358 (1991); Prejean
v. Foster, 83 Fed. App’x 5 (5th Cir. 2003); Hall v. Louisiana, 983 F. Supp. 2d 820, 824 (M.D.
La. 2013).

       3  The plaintiffs sought, among other remedies, a declaration that the challenged
electoral scheme was unconstitutional. Such a declaration would be sufficient to redress the
plaintiffs’ injuries insofar as it would force the state—who the Governor, in his official
capacity, represents—to prescribe another plan before proceeding with elections.

       4   In Texas, by contrast, the Secretary of State holds a gubernatorial appointment.
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                                       No. 19-30665
Attorney General’s implicit argument that only the Secretary of State should
have been sued is wrong. 5
       The Attorney General’s other jurisdictional argument is that the
Eleventh Amendment shields him and the Governor from suit. The parties
spar over the prerequisites of Ex parte Young’s exception to Eleventh
Amendment immunity. See Ex parte Young, 209 U.S. 123, 28 S. Ct. 441 (1908);
Okpalobi v. Foster, 244 F.3d 405, 414–15 (5th Cir. 2001) (en banc). Both
parties miss the mark. “The VRA, which Congress passed pursuant to its
Fifteenth Amendment enforcement power, validly abrogated state sovereign
immunity.” OCA-Greater Houston v. Texas, 867 F.3d 604, 614 (5th Cir. 2017).
Thus, the immunity from suit these officials might otherwise enjoy offers no
protection from VRA suits, whether premised on dilution or intentional
discrimination.
                                             II
       Addressing the merits of the appeal, the Attorney General initially
challenges the district court’s finding of vote dilution, followed by its finding of
intentional racial discrimination in the legislature’s failure to voluntarily
adopt single-member districts for judicial elections in the 32nd JDC.
                                             A
       Section 2 of the VRA prohibits states from imposing or applying any
“standard, practice, or procedure . . . which results in a denial or abridgement



       5 This conclusion is a unique product of the VRA, enacted under the Fifteenth
Amendment to protect the voting rights of African-Americans from state interference. See
United States v. Mississippi, 380 U.S. 128, 136–38, 85 S. Ct. 808, 812–13 (1965) (state can be
directly sued pursuant to VRA implementing the Fifteenth Amendment). This decision,
accordingly, does not authorize parties to sue the Governor (or other state officer) whenever
a party challenges duly enacted laws. See, e.g., Okpalobi v. Foster, 244 F.3d 405 (5th Cir.
2001) (en banc). Further, we take no position on whether, had the court’s remedial order
here been upheld, standing would exist and the court could have enforced its remedy without
the continued presence of the Secretary of State, who is Louisiana’s chief elections officer.
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                                       No. 19-30665
of the right of any citizen of the United States to vote on account of race or
color.” 52 U.S.C. § 10301(a). A violation of Section 2
              is established if, based on the totality of
              circumstances, it is shown that the political processes
              leading to nomination or election in the State or
              political subdivision are not equally open to
              participation by members of a [racial] class of citizens
              . . . in that its members have less opportunity than
              other members of the electorate to participate in the
              political process and to elect representatives of their
              choice.
Id. § 10301(b).
       Section 2 claims brought against multimember electoral districts are
governed by the framework established in Thornburg v. Gingles.                        “Under
Gingles, plaintiffs challenging an at-large system on behalf of a protected class
of citizens must demonstrate that (1) the group is sufficiently large and
geographically compact to constitute a majority in a single-member district;
(2) it is politically cohesive; and (3) the white majority votes sufficiently as a
bloc to enable it usually to defeat the minority’s preferred candidate.” LULAC,
999 F.2d at 849. Satisfaction of these three “preconditions” is necessary, but
not sufficient, to establish liability. Id. “Plaintiffs must also show that, under
the ‘totality of circumstances,’ they do not possess the same opportunities to
participate in the political process and elect representatives of their choice
enjoyed by other voters.” Id. The so-called “Zimmer factors” guide this second
inquiry. Id. 6


       6 These factors include:
        1. the extent of any history of official discrimination in the state or political
subdivision that touched the right of the members of the minority group to register, to vote,
or otherwise to participate in the democratic process;
        2. the extent to which voting in the elections of the state or political subdivision is
racially polarized;
        3. the extent to which the state or political subdivision has used unusually large
election districts, majority vote requirements, anti-single shot provisions, or other voting
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                                        No. 19-30665
       The Attorney General maintains that the plaintiffs’ claim of vote dilution
fails each of the Gingles preconditions as well as the ultimate totality of
circumstances standard. A searching and practical review of the electoral
conditions in Terrebonne Parish is required to evaluate the district court’s
determinations. Gingles, 478 U.S. at 45, 106 S. Ct. at 2764.
                                               1
       The Attorney General avers that the plaintiffs’ claim fails the first
Gingles precondition because the parish’s African-American community is
neither sufficiently large nor geographically compact to make up a single
member district that complies with traditional districting principles.                       To
support this argument, he postulates that the 50.4% of non-Hispanic black
voting age population in the plaintiffs’ proposed majority-minority district,
District 1, falls short of the bare majority needed to satisfy Gingles’s
numerosity requirement. 7 See Bartlett v. Strickland, 556 U.S. 1, 18, 129 S. Ct.



practices or procedures that may enhance the opportunity for discrimination against the
minority group;
        4. if there is a candidate slating process, whether the members of the minority group
have been denied access to that process;
        5. the extent to which members of the minority group in the state or political
subdivision bear the effects of discrimination in such areas as education, employment and
health, which hinder their ability to participate effectively in the political process;
        6. whether political campaigns have been characterized by overt or subtle racial
appeals;
        7. the extent to which members of the minority group have been elected to public office
in the jurisdiction;
        8. whether there is a significant lack of responsiveness on the part of elected officials
to the particularized needs of the members of the minority group; and
        9. whether the policy underlying the state or political subdivision’s use of such voting
qualification, prerequisite to voting, or standard, practice or procedure is tenuous.
See LULAC, 999 F.2d at 849 n.22; S. REP. No. 97-417, at 28–29 (1982).

       7 Some of the Attorney General’s complaints are mistakenly lodged against the Special
Master’s remedial plan. At Gingles step one, our evaluation is limited to whether the
plaintiffs offered sufficient evidence of numerosity and compactness. To do this, we consider
the plaintiffs’ proposed districting map ruled on by the trial court, not the remedial plan
eventually accepted.
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                                  No. 19-30665
1231, 1245 (2009) (“[T]he majority-minority rule relies on an objective,
numerical test: Do minorities make up more than 50 percent of the voting-age
population in the relevant geographic area?”). He also points to the odd shape
of the plaintiffs’ proposed remedial map, arguing that it undermines the court’s
finding of compactness and is at odds with traditional districting principles.
      Turning first to the Attorney General’s numerosity argument, the
district court noted that both plaintiffs’ and defendants’ experts “agreed that
the black population in Terrebonne is sufficiently numerous such that
[proposed] District 1 has a greater than 50% voting-age black population.” The
Attorney General’s current position is thus inconsistent with the view
expressed by his own expert. Perhaps recognizing as much, the Attorney
General argues that the percentages cited by the district court fail to account
for voter turnout. Because black voter turnout is substantially lower than
white voter turnout, the Attorney General argues there is no reasonable
opportunity for the threadbare majority of black voters in District 1 to elect a
candidate of their choice. The first Gingles precondition, however, does not
require a showing that a majority of the voters in a future election will be black.
All the plaintiffs have to show is that the black minority is numerous enough
to “constitute a majority in a single-member district.” LULAC, 999 F.2d at
849. That is not to say that the probability of blacks electing their preferred
candidates in future elections is irrelevant. To the contrary, this bears on the
totality of the circumstances, which we discuss later. See Abbott v. Perez,
138 S. Ct. 2305, 2332 (2018) (“Under Gingles, the ultimate question is whether
a districting decision dilutes the votes of minority voters, . . . and it is hard to
see how this standard could be met if the alternative to the districting decision
at issue would not enhance the ability of minority voters to elect the candidates
of their choice.”); Harding v. County of Dallas, 948 F.3d 302, 310–11 (5th Cir.


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                                       No. 19-30665
2020). The Attorney General’s argument is misplaced at this stage of the
analysis.
       Even so, the trial record casts doubt not only on the effectiveness of the
proposed voting age majority, but also on the compactness of the proposed
district. The plaintiffs’ plan constructed a horseshoe shape district around
Houma in order to pick up minority residential areas in that town and in Gray
and Schriever. 8 The plaintiffs’ plan split fourteen of the twenty-one voting
precincts affected by the proposed majority-minority district. Cf. Bush v. Vera,
517 U.S. 952, 974, 116 S. Ct. 1941, 1959 (1996) (criticizing redistricting plan
for splitting “local election precincts”). The majority-minority district also
suffered from very low compactness scores on both mathematical matrices
cited by the parties. And its odd shape suggests that race served as the sine
qua non for selecting which blocks to include in the proposed district, all in an
effort to achieve the necessary demographic of 50% plus one black voting age
population. See Sensley v. Albritton, 385 F.3d 591, 596 (5th Cir. 2004) (“As the
geographical shape of any proposed district necessarily directly relates to the
geographical compactness and population dispersal of the minority community
in question, it is clear that shape is a significant factor that courts can and
must consider in a Gingles compactness inquiry.”).
       Appellees respond that neither the district’s contorted horseshoe shape
nor its compactness scores count against a finding of vote dilution because
other political districts in this area, e.g. for the state legislature and the parish
council and school board, “resemble” its shape.                See Houston v. Lafayette
County, 56 F.3d 606, 611 (5th Cir. 1995). Nonetheless, this comparison with



       8 Compactness may often be in the eye of the judicial beholder, but plaintiffs’ proposed
district is not far off from those condemned by the courts in Bush v. Vera, 517 U.S. 952,
116 S. Ct. 1941 (1996); Shaw v. Reno, 509 U.S. 630, 113 S. Ct. 2816 (1993); and Gomillion v.
Lightfoot, 364 U.S. 339, 81 S. Ct. 125 (1960).
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                                   No. 19-30665
other misshapen districts does not make a strong case for the first Gingles
factor.
        Moreover, given several facts noted by the district court, satisfying this
factor was inherently challenging for plaintiffs. African-Americans comprised
barely 19% of the 112,000 residents of Terrebonne Parish according to the 2010
Census (or 20% if counted by Any-Part Black). Nearly all of their numbers had
to be joined to give them an “opportunity district” within a five-member judicial
body. Additionally, the locations of small towns, interconnecting roads, and
many bayous formed natural barriers to traditional districting. But we owe
deference to the district court on this highly factual issue and are unable to
conclude that the court clearly erred. In addition to analyzing compactness
scores and the number of split precincts, the court observed that the plaintiffs’
remedial plan maintained communities of interest, contained contiguous
districts, protected incumbents, and respected the principle of one person, one
vote.     In sum, while the district court’s compactness analysis is far from
ironclad, it is not so erroneous as to alone warrant reversal.
                                         2
        The second and third Gingles preconditions pose the same question, but
for different demographic groups: Is there significant racial bloc voting (or
racially polarized voting)? See Gingles, 478 U.S. at 56, 106 S. Ct. at 2769;
Teague v. Attala County, 92 F.3d 283, 287–88 (5th Cir. 1996). The district court
answered these questions in the affirmative, as it found that “a significant
number of minority group members usually vote for the same candidates” and
whites typically vote in such a way that they “normally will defeat the
combined strength of minority support plus white ‘crossover’ votes.” Gingles,
478 U.S. at 56, 106 S. Ct. at 2769.
        The Attorney General has nothing to say about the proven political
cohesiveness of the parish’s black voters.        Instead, he contends that the
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                                    No. 19-30665
unopposed 2014 election of African-American Juan Pickett to the 32nd JDC
constituted powerful evidence that white Terrebonne parish voters do not
typically vote in such a way as to defeat the minority’s supported candidate.
The relevant standard for evaluating this signal victory is whether “the white
majority votes sufficiently as a bloc to enable it—in the absence of special
circumstances, such as the minority candidate running unopposed . . . —usually
to defeat the minority’s preferred candidate.” Id. at 51 (emphasis added); see
also Rollins v. Fort Bend Indep. Sch. Dist., 89 F.3d 1205, 1213 (5th Cir. 1996)
(permitting consideration of special circumstances to “explain a single minority
candidate’s victory” (emphasis added)). The district court makes much of the
facts that Juan Pickett ran unopposed and his election occurred during the
pendency of this litigation.     The former consideration suggests Pickett’s
election was a fluke, while the latter consideration has been held relevant to
the “special circumstances” assessment. Clark v. Calhoun County, 21 F.3d 92,
96 (5th Cir. 1994). Yet the district court, and the plaintiffs for that matter, go
on to imply that Judge Pickett “was not clearly the Black community’s
candidate of choice.” That the judge had been a member of the local community
for many years, that he had served as an Assistant District Attorney for
seventeen years and been the Terrebonne Parish bar president, and that he
had been seeking political support long before 2014, are unmentioned in the
district court’s findings. Judge Pickett’s admirable record would seem to have
been a noteworthy “special circumstance” suggesting why he cleared the field
of opponents before the election.
      Significant as Judge Pickett’s election should be, contrasting with this
single election is testimony from the plaintiffs’ expert, Dr. Engstrom, that “the
magnitude of polarization” in this case was significant. Dr. Engstrom analyzed
seven elections, spanning over twenty years, in which at least one black
candidate competed against one white candidate. The candidates preferred by
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                                  No. 19-30665
black voters lost every time, and in each case, he found a high degree of racially
polarized voting.
      Because most of the election results Dr. Engstrom analyzed were
exogenous and decades-old, the Attorney General contends that they are not
probative of contemporary voting patterns for the 32nd JDC. This argument
has some force, but it is insufficient to establish clear error for two reasons.
First, Dr. Engstrom was forced to analyze exogenous election results because
all recent elections for the 32nd JDC have been uncontested. Reliance on
exogenous election results in this circumstance has received this court’s
sanction. See Westwego Citizens for Better Gov’t v. City of Westwego, 872 F.2d
1202, 1209 (5th Cir. 1989) (approving reliance on exogenous election results
where no statistics were available for endogenous elections involving a
minority candidate). That being said, the lack of contested judicial elections
can also be explained by the dearth of minority candidates qualified to run for
the 32nd JDC. (We consider this fact among the totality of the circumstances.)
Second, the defendants’ expert, Dr. Weber, also found racially polarized voting
in five of the seven elections Dr. Engstrom analyzed. Dr. Weber criticized
reliance on stale, exogenous elections and discounted election results for non-
parish-wide positions. Such concerns are far from trivial, particularly in light
of Judge Pickett’s success, but they do not withstand the deferential standard
of review.
                                        3
      Even if all three Gingles preconditions are sustainable, Section 2 is not
violated unless the totality the circumstances also “weigh[s] in favor of a
finding that at-large voting for the 32nd JDC interacts with social and
historical factors to cause an inequality in the political process for black
voters.” At this level, contrasted with the relatively weak support for the


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                                       No. 19-30665
plaintiffs’ position on the Gingles factors, the Attorney General’s arguments
become decisive.
       The district court found that seven of the nine Zimmer factors weighed
in the plaintiffs’ favor.      The Attorney General homes in on one of those
factors—the State’s policy justification for selecting trial court judges in at-
large elections. 9 Louisiana asserts a linkage interest in the use of at-large
judicial elections, that is, an “interest in maintaining the link between a
district judge’s jurisdiction and the area of residency of his or her voters.”
Houston Lawyers’ Ass’n v. Attorney Gen. of Tex., 501 U.S. 419, 426, 111 S. Ct.
2376, 2381 (1991).         Following Houston Lawyers’ Association, this court
examined the substantiality of this interest at length in the en banc LULAC
case. As Judge Higginbotham explained there, “by making coterminous the
electoral and jurisdictional bases of trial courts,” the State “advances the
effectiveness of its courts by balancing the virtues of accountability with the
need for independence. . . . A broad base diminishes the semblance of bias and
favoritism towards the parochial interests of a narrow constituency.” LULAC,
999 F.2d at 869. In contrast, subdistricting introduces the appearance of ward
politics, detracting from the appearance of judicial independence.                        Id.
Moreover, the “inescapable truth” is that destroying linkage diminishes
minority influence. Id. at 873. By creating a majority-minority district, many
minority voters are “marginalized, having virtually no impact on most district
court elections.” Id.



       9  The Attorney General also correctly notes that among the Zimmer factors is the
state’s “history” of official electoral discrimination. Two points are relevant. First, as the
Chief Justice has observed, “our country has changed” in its treatment of minorities. Shelby
County v. Holder, 570 U.S. 529, 557, 133 S. Ct. 2612, 2631 (2013). Second, that the state
failed to receive preclearance from DOJ under the now-void Section 4 of the VRA does not
prove this “historical” point, because the Section 4 test did not deal with actual
discrimination in election practices but with the lesser charge of “backsliding.” Reno v.
Bossier Parish School Bd., 528 U.S. 320, 335, 120 S. Ct. 866, 875 (2000).
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                                   No. 19-30665
      The district court in this case acknowledged the state’s potential linkage
interest, but it declared the interest insubstantial for five reasons. “First, the
Louisiana Constitution does not require that trial court judges be elected at-
large.” “Second, in the late 1980s Louisiana ‘stifled its policy arguments’
regarding linkage by agreeing to create judicial subdistricts to end the Clark
litigation.” “Third, outside of litigation, Louisiana has continued to show that
it no longer has a linkage interest as it has created subdistricts for trial courts.”
“Fourth, subdistricts are now common in Louisiana, and a majority of the
[judicial district court (‘JDC’)] judges in Louisiana are elected by subdistrict.”
And fifth, “Louisiana has recognized that subdistricts are an important way of
providing black voters an equal opportunity to elect their preferred candidates
to trial courts.” Each of these stated reasons, however, is either legally infirm
or factually wrong.
      Before explaining why, we emphasize that the substantiality of
Louisiana’s linkage interest is a legal question, not a factual one. LULAC,
999 F.2d at 871.      The district court’s holding consequently receives no
deference. In addition, a state’s linkage interest, while not controlling in a vote
dilution case, lies at the heart of representative government and thus must be
treated with great respect. The people of Louisiana have a significant interest
in defining the structure and qualifications of their judiciary. See Gregory v.
Ashcroft, 501 U.S. 452, 463, 111 S. Ct. 2395, 2402 (1991). This interest could
be gainsaid by evidence establishing that the State abandoned any interest in
linkage.   But such evidence would itself have to be substantial since our
scrutiny is less “demanding where we deal with matters resting firmly within
a State’s constitutional prerogatives,” including “the establishment and
operation of . . . government, as well as the qualifications of an appropriately
designated class of public office holders.” Sugarman v. Dougall, 413 U.S. 634,
648, 93 S. Ct. 2842, 2850, 2851 (1973). These principles frame the analysis of
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                                       No. 19-30665
the district court’s tendered reasons for dismissing Louisiana’s linkage
interest.
       First, that Louisiana’s Constitution does not require the election of
district court judges on an at-large basis is of no import. This court considered
a similar argument in LULAC.              There, the plaintiffs argued that “Texas
abandoned its linkage interest by allowing the residents of counties to ‘opt out’
of the linkage structure by selecting judges from regions smaller than a
county.” LULAC, 999 F.2d at 875. This court concluded that such an option
was irrelevant since the people of Texas had, despite the option, chosen to elect
judges at the county level. Id. Similarly, the fact that Louisiana’s Constitution
perhaps permits different election schemes is immaterial unless Louisiana has
actually adopted such schemes. 10
       Louisiana’s purported adoption of subdistricting for some judicial
elections leads to the second, third, and fourth reasons cited by the district
court for questioning the state’s linkage interest. The district court stated that
Louisiana’s decision to settle the Clark litigation in the 1980s, by creating some
judicial subdistricts for parishes covered by that litigation, evidences an
abandonment of its current policy arguments. Not so. Importantly, the Clark
settlement predated LULAC, in which this court first confirmed the
significance of a state’s linkage interest. More to the point, the settlement was
unrelated to the 32nd JDC—or any other district not specifically mentioned in


       10 Additionally—and contrary to the district court’s conclusion—this court has read
Louisiana’s Constitution to support the State’s asserted linkage interest. See Prejean v.
Foster, 227 F.3d 504, 517 & n.23 (5th Cir. 2000).
        Further, in Rule 28(j) letters, the parties have debated the significance of the 2020
legislature’s approval of certain judicial subdistricts, “including a redistricting plan that
contains a Black voter opportunity sub-district, for the 14th JDC,” as evidence that the state
no longer maintains its linkage interests. But no new sub-districts were created; the
legislature simply redistricted those already in existence, and the preexisting 14th JDC sub-
districts were the result of the Clark litigation.
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                                       No. 19-30665
the consent decree. 11 It represented nothing more than the resolution of a long-
running and costly legal dispute over a few judicial district courts and in no
way represented an abandonment of Louisiana’s more general interest in
conducting at-large judicial elections. 12
       The district court next found that Louisiana “continue[s] to show that it
no longer has a linkage interest as it has created subdistricts for trial courts.”
The district court provided no further analysis on this point, 13 but it seems
related to the court’s fourth basis for labeling the State’s interest as
insubstantial: “subdistricts are now common in Louisiana, and a majority of
the JDC judges in Louisiana are elected by subdistrict.”                      This finding,
charitably, was the product of statistical gymnastics. First, the district court
excluded Orleans Parish from its count, despite that parish both electing
judges parish-wide and having a large number of judges. Next, the court
measured the number of judges elected by subdistricts rather than considering
that the majority of JDCs still use at-large elections. And even then, only by
excluding Orleans Parish was the district court able to conclude that a majority
of judges are elected from subdistricts.             With the Orleans Parish judges
included, the number of judges elected from subdistricts falls to fewer than
half. The district court also failed to account for the reality that all but one of



        In fact, the plaintiffs excluded the 32nd JDC from the Clark litigation because the
       11

minority population in Terrebonne Parish was too small to accommodate a “minority
opportunity” subdistrict there.

       12 In LULAC, this court noted that Louisiana “abandoned the link between jurisdiction
and electoral base” for judicial elections “to settle prolonged litigation.” LULAC, 999 F.2d at
872, n.33; and in Prejean, the court noted “the state stifled its policy arguments to obtain
final preclearance.” Prejean, 227 F.3d at 510–12. These statements are descriptive, however,
not prescriptive, as the district court seemed to suggest.

       13The court may have been referring to the voluntary creation of majority-minority
subdistricts for city and juvenile courts. These courts, however, are distinct from district
courts, which operate at the parish level.
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                                  No. 19-30665
the subdistricted JDCs are a result of the Clark litigation and ensuing consent
decree. Once these considerations are taken into account, it is clear that
Louisiana maintains an interest in conducting at-large elections for district
court judgeships.
      Finally, the district court relied on the findings of a 1996 task force
created by the Louisiana Supreme Court, which found that the creation of “sub-
districts, where appropriate, [is] the only feasible means of ensuring diversity
and ethnic heterogeneity in our judicial system.” The task force, however,
never represented the will of the state, nor was it authorized to bind the state
to its positions. Its findings, moreover, are over two decades old.
      In short, the district court’s stated reasons for rejecting Louisiana’s
linkage interest are less than compelling. Our review of the record confirms
that Louisiana has a substantial interest in retaining at-large elections. To be
sure, this conclusion does not put an end to the plaintiffs’ claim of vote dilution.
See Houston Lawyers’ Ass’n, 501 U.S. at 426, 111 S. Ct. at 2381. Louisiana’s
substantial linkage interest must be balanced against the evidence of vote
dilution. Id. At this stage, the plaintiffs bear the burden of offering substantial
proof of dilution to overcome the state’s interest in linkage. LULAC, 999 F.2d
at 876.
      The plaintiffs fail to carry that burden. At best, they have demonstrated
a marginal case of vote dilution. The plaintiffs have presented no evidence of
overt or subtle racial appeals in elections for the 32nd JDC. Furthermore,
much of the evidence reflecting polarized voting derives from exogenous,
decades-old elections. Most elections for the 32nd JDC have been uncontested.
This is likely due to the fact that only a few members of the minority class are
eligible to be elected to the 32nd JDC. Although this court has not precluded
vote dilution claims where few minority candidates have run for office, see
Clark v. Calhoun County, 88 F.3d 1393, 1398 (5th Cir. 1996), the number of
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                                  No. 19-30665
minority candidates eligible for office certainly is relevant, LULAC, 999 F.2d
at 865. Indeed, “we are instructed to evaluate the totality of the circumstances
with a ‘functional view of the political process.’” Id. (quoting Gingles, 478 U.S.
at 45, 106 S. Ct. at 2764). And a “functional analysis of the electoral system
must recognize the impact of limited pools of eligible candidates on the number
of minority judges that has resulted.”       Id.     Unlike many public offices,
judgeships are foreclosed to most of the population, not because the majority
defines who is qualified at the ballot box, but because those qualifications are
set by law. The Louisiana Constitution sets the qualifications for district court
judges, requiring domicile in the district for one year and admittance to the
state bar for at least eight years. LA. CONST. art. V, § 24. In Terrebonne
Parish, just a handful of minority citizens—about ten, according to the district
court—meet these qualifications (to say nothing of the number of qualified
minority lawyers in the plaintiffs’ proposed remedial district).
      We also must consider voter turnout, an issue mentioned previously in
passing. As this court recently explained, plaintiffs need not demonstrate
guaranteed success under a hypothetical redistricting plan to prevail on a
claim of vote dilution. Harding, 948 F.3d at 309. Yet, at the same time, “an
alternative map containing an additional majority-minority district does not
necessarily establish an increased opportunity.” Id. And as Perez and Harding
remind, plaintiffs must meet the overarching demand that their new
districting scheme enhances their ability to elect candidates of their choosing.
Perez, 138 S. Ct. at 2332. The plaintiffs’ experts acknowledged that black voter
turnout in Terrebonne Parish lags behind white voter turnout. Relatedly, the
defendants’ expert attested that a 56% black voting age population was
required to ensure blacks have the opportunity to elect their preferred
candidates. At best, the plaintiffs’ proposed remedial district had a black
voting age population of 53.33%.       That the plaintiffs’ proposed majority-
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                                  No. 19-30665
minority district sufficiently enhances minority voters’ ability to elect the
candidates of their choice is not a well-supported proposition on this record.
      Coupling these problems with the compactness concerns discussed above
and the district court’s mischaracterization of Louisiana’s linkage interest, we
are left with the firm conviction that the district court erred in finding a
violation of the VRA.
                                        B
      The district court’s finding of discriminatory intent formed an
independent basis for liability. McMillan v. Escambia County, 748 F.2d 1037,
1046 (Former 5th Cir. 1984). An election practice violates Section 2 and the
Fourteenth and Fifteenth Amendments if it is undertaken and maintained for
a discriminatory purpose. United States v. Brown, 561 F.3d 420, 432 (5th Cir.
2009). Under this intent-based approach, “[r]acial discrimination need only be
one purpose, and not even a primary purpose, of an official act” for a violation
to occur. See Velasquez v. City of Abilene, 725 F.2d 1017, 1022 (5th Cir. 1984).
But discriminatory intent “implies more than intent as volition or intent as
awareness of consequences. . . . It implies that the decisionmaker . . . selected
or reaffirmed a particular course of action at least in part ‘because of,’ not
merely ‘in spite of,’ its adverse effects upon an identifiable group.” Pers. Adm’r
of Mass. v. Feeney, 442 U.S. 256, 279, 99 S. Ct. 2282, 2297 (1979). “To find
discriminatory intent, ‘direct or indirect circumstantial evidence, including the
normal inferences to be drawn from the foreseeability of defendant’s actions’
may be considered.” Brown, 561 F.3d at 433 (quoting McMillan, 748 F.2d at
1037).
      Five non-exhaustive factors guide courts in determining whether a
particular decision was made with a discriminatory intent:                 (1) the
discriminatory impact of the official action; (2) the historical background of the
decision; (3) the specific sequence of events leading up to the challenged action;
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                                       No. 19-30665
(4) substantive and procedural departures from the normal-decision making
process; and (5) contemporaneous viewpoints expressed by the decision-
makers. Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252,
266–68, 97 S. Ct. 555, 564–65 (1977); see also Veasey v. Abbott, 830 F.3d 216,
231 (5th Cir. 2016) (en banc).
       Applying these factors, the district court found that a discriminatory
purpose motivated maintenance of the at-large election system for the 32nd
JDC. This conclusion was based primarily on the discriminatory impact of at-
large voting, the sequence of events leading to the rejection of efforts to create
a majority-minority subdistrict, and the supposedly pretextual arguments
made by the opponents of subdistricting. 14 We have already determined that,
by inadequately substantiating plaintiffs’ vote dilution claim, the district court
erred in its assessment of discriminatory impact. The district court’s decision
thus stands on two findings.
       Black residents in Terrebonne Parish began advocating judicial
subdistricting in the 1980s.          Over the years, multiple bills proposing the
creation of a majority-minority subdistrict were introduced in the Louisiana
legislature, but none passed both houses. The district court was convinced that



       14 The district court also suggested that its holding was based on Louisiana’s well-
documented history of de jure discrimination. But Arlington Heights calls for an examination
of the historical background of the challenged decision, not a probing investigation into an
alleged pattern of statewide discrimination. See Vill. of Arlington Heights, 429 U.S. at 267,
97 S. Ct. at 564. The plaintiffs recognize as much and suggest that the adoption of an at-
large election method for the 32nd JDC was prompted by a desire to dilute the strength of
the black vote. Louisiana district court judges, however, have long been elected on an at-
large basis—before creation of the 32nd JDC and before passage of the VRA. Clark v. Roemer,
751 F. Supp. 586, 588 (M.D. La. 1990), rev’d, 500 U.S. 646, 111 S. Ct. 2096 (1991).
Louisiana’s linkage interest explains this choice. Were we to conclude otherwise—with no
direct evidence that racial prejudice spurred the adoption of at-large elections for Louisiana’s
JDCs—every at-large election scheme for judicial districts would be subject to judicial
scrutiny as being formed and maintained for a discriminatory purpose. In other words, the
State’s long-standing linkage interest would be subordinated to a pretext for discrimination.

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                                   No. 19-30665
the failure of this legislation was driven, in part, by racial discrimination. The
evidence, taken in context, does not support the district court’s findings.
      Fundamental to this inquiry is the sensitive nature of questioning the
intent of lawmakers. See Vill. of Arlington Heights, 429 U.S. at 266, 97 S. Ct.
at 564. “Proving the motivation behind official action” has been described as
“a problematic undertaking,” Hunter v. Underwood, 471 U.S. 222, 228,
105 S. Ct. 1916, 1920 (1985), and “a hazardous matter,” United States v.
O’Brien, 391 U.S. 367, 383, 88 S. Ct. 1673, 1682 (1968). Accordingly, direct
evidence of discriminatory intent must be prioritized over circumstantial
evidence (though such evidence remains relevant). See Feeney, 442 U.S. at 279,
99 S. Ct. at 2296; see also Veasey v. Abbott, 796 F.3d 487, 503 n.16 (5th Cir.
2015), reh’g en banc granted, 830 F.3d 216 (5th Cir. 2016) (“While it is true that
it is unlikely for a legislator to stand in the well of the state house or senate
and articulate a racial motive, it is also unlikely that such a motive would
permeate a legislative body and not yield any private memos or emails.”).
Similarly, state legislatures are afforded a presumption of good faith. Perez,
138 S. Ct. at 2324. Legislative decisions are, of course, not immune from
review.   But the Supreme Court has long cautioned against the quick
attribution of improper motives, which would interfere with the legislature’s
rightful independence and ability to function.         See Flemming v. Nestor,
363 U.S. 603, 617, 80 S. Ct. 1367, 1376 (1960) (“[O]nly the clearest proof could
suffice to establish the unconstitutionality of a statute on [the] ground [of
improper legislative motive].”).
      The district court relied exclusively on circumstantial evidence
surrounding the Louisiana legislature’s rejection of several proposals to create
a new judgeship for the 32nd JDC. The first piece of legislation proposing the
creation of an additional judgeship was introduced in 1997. As originally
conceived, the judgeship would be elected at-large.          Minority residents of
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                                  No. 19-30665
Terrebonne Parish proposed an alternative:         the creation of a majority-
minority subdistrict. Legislative staff responded that the proposed minority
subdistrict would not be contiguous and would violate reapportionment
jurisprudence. Upon the request of subdistricting proponents, the legislative
staff drafted contiguous subdistrict boundaries but found that they exposed the
district to attack as racially gerrymandered. Because it was not possible to
draw a majority-minority district that complied with law, the bill was tabled.
      The district court viewed this action as pretext for racial discrimination
because the U.S. Department of Justice had never objected to a majority-black
subdistrict although it had objected to the creation of additional at-large
judgeships.   However, applying the presumption of good faith, it seems
perfectly reasonable for legislators to be concerned about traditional districting
principles and the prejudicial effects of racial gerrymandering.          This is
especially so given that the parties to the Clark litigation agreed that creating
a majority-minority subdistrict for the 32nd JDC was not feasible because of
Terrebonne Parish’s demographics.        The choice to evade claims of racial
gerrymandering by tabling a controversial piece of legislation does not reveal
discriminatory intent.    If anything, these events suggest that the state
legislature was cognizant of federal preclearance practices as well as the
concerns of the subdistricting proponents.
      The next bill to propose the creation of a sixth at-large judgeship was
introduced in 1998. It passed the Senate but did not come up for a vote in the
House. The district court made much of the bill’s success in the Senate despite
opposition from black residents. But legislation succeeds or fails standing
alone. It is no evidence of discriminatory intent. Furthermore, the fact that a
proposal to create a sixth at-large judgeship failed—that is to say, the same
election method criticized as producing discriminatory results—blunts the


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                                  No. 19-30665
plaintiffs’ argument that racial discrimination infected the legislature’s
decision making.
      The district court next points to a request from Judge Ellender, a judge
on the 32nd JDC acting on behalf of the court, asking the Judicial Council in
mid-1998 to recommend an additional judgeship. The judges of the court
revoked that request a few months later because juvenile matters, a significant
portion of their caseload, had been transferred to the Houma City Court. The
district court questioned the authenticity of this about-face and appeared
incredulous that the judges would ever rescind a judgeship request. It found
that, at the time the request was initially sent, the 32nd JDC judges were likely
aware of advocacy from black residents calling for subdistricting. That may be
true (though the district court cites little evidence to prove this). But it in no
way evinces racial prejudice. The asserted basis for withdrawing the request
for an additional judgeship was a reduced workload. The Judicial Council
confirmed the 32nd JDC judges’ acknowledgement of a smaller docket,
concluding in a supplemental report that an additional judgeship was not
warranted since Houma City Court was handling juvenile matters.               The
plaintiffs provide no evidence to support the assertion that the Judicial
Council’s otherwise laudable effort to conserve taxpayer resources was a
coverup for racial prejudice.
      The fourth piece of legislation scrutinized by the district court was
proposed in 1999 and called for the creation of a sixth judge to be elected from
a majority-minority subdistrict.    Judge Ellender wrote to the chair of the
Senate Judiciary Committee, recommending that the chairman vote against
the bill because the judges had withdrawn the request for an additional
judgeship and it would be a waste of taxpayer money to create a new judgeship
where it was not needed. The bill died in committee. The district court
ascribed bad motive to Judge Ellender’s letter, suggesting it was against the
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                                    No. 19-30665
32nd JDC’s interests since they had previously requested a new judgeship. But
Judge Ellender adequately explained why the judgeship was no longer needed.
Without evidence proving that racial animus played some part in the Senate
Judiciary Committee’s decision, the district court had no basis for including
the rejection of this bill in its calculus.
      In 2001, two separate bills were introduced calling for an additional
judgeship in the 32nd JDC and the creation of a majority-minority subdistrict.
Both bills were defeated after judges for the 32nd JDC and the Judicial Council
opposed the legislation on the basis that an additional judgeship was not
needed at the time.       As with the other bills, the sole fact that minority
advocates of a judicial subdistrict were defeated is alone insufficient to support
an inference of discriminatory intent behind the legislature’s refusal to pass
these pieces of proposed legislation.
      The same goes for the other actions scrutinized by the district court—
from advocacy to expand the Houma City Court to a proposal to reorganize the
method for the election of all five 32nd JDC judges. Each of these actions failed
not because of any demonstrated intent to suppress black voters’ choices, but
because new judgeships were unnecessary and therefore a waste of taxpayer
funds. Indeed, at one point there was no courthouse space even available for
an additional Houma City Court judge. The district court ignored obvious
practical, non-racial concerns about the creation of new judgeships: if the
judges haven’t enough to do, the legislature becomes reluctant to support their
needs; and for every newly created judgeship, the available but limited public
resources threaten to be reduced per capita. The district court also failed to
mention Louisiana’s substantial linkage interest in its analysis.
      The district court’s contrary findings did not afford Louisiana’s
legislature its entitled presumption of good faith, overemphasized speculative,
circumstantial evidence, and minimized the testimony of those public officials
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                                  No. 19-30665
directly involved in opposing changes to the 32nd JDC. Cf. Price v. Austin
Indep. Sch. Dist., 945 F.2d 1307, 1318 (5th Cir. 1991) (upholding a district
court’s no-discriminatory-intent finding and noting that when decisionmakers
testify without invoking the privilege, “the logic of Arlington Heights suggests
that” such direct evidence is “stronger than the circumstantial evidence
proffered by the plaintiffs”). That the court imputed racial motives to the local
officials (without substantial basis) and then imputed the local officials’ views
to the legislature is also of concern. There is no proof that the locals’ positions
for or against judicial subdistricting must be imputed to the legislators or the
legislative committees. These errors leave us with “the definite and firm
conviction that a mistake has been committed.” Anderson v. City of Bessemer
City, 470 U.S. 564, 573, 105 S. Ct. 1504, 1511 (1985) (quoting United States v.
U.S. Gypsum Co., 333 U.S. 364, 395, 68 S. Ct. 525, 542 (1948)).
      That conviction is only strengthened when we review the district court’s
assessment of contemporaneous viewpoints. The district court criticized those
legislators who argued against redistricting in a piecemeal fashion. The court
rebutted that because Louisiana had created subdistricts in piecemeal fashion
before, it had no basis to oppose redistricting now.        For reasons already
explained, this logic is fallacious. The redistricting referenced by the district
court resulted either from the Clark settlement or from the creation of
subdistricts for appellate or lesser courts, none of which decisions eviscerated
the state’s continued interest in retaining at-large JDC elections.
      The district court also found that certain legislators’ calls to proceed
slowly before enacting subdistricts were pretexts for racial discrimination.
Even if individual legislators’ statements referenced by the district court were
as suspect as the district court perceived, they are entitled to little probative
value. The Supreme Court has repeatedly cautioned against overemphasizing
statements from individual legislators, which are not necessarily “what
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                                 No. 19-30665
motivates scores of others” to act (or, in this case, not act). O’Brien, 391 U.S.
at 384, 88 S. Ct. at 1683; see Hunter, 471 U.S. at 228, 105 S. Ct. at 1920. The
plaintiffs offer no evidence that the pleas to proceed cautiously constituted
procedural deviations from the normal legislative process or a cover for
discrimination. One obvious casualty, were Louisiana to abandon linkage
either wholesale or piecemeal, would be the creation of 26 judicial subdistricts
for each of the JDC judges in Orleans Parish.
                                CONCLUSION
      We conclude that the district court clearly erred in its finding of minority
vote dilution in the election of judges for Terrebonne Parish’s 32nd JDC,
principally, but not solely, because the district court did not adequately credit
the state’s substantial linkage interest. Likewise, we conclude that the district
court clearly erred in its finding of discriminatory intent. Because the state is
not liable under either Section 2 or the United States Constitution, we
REVERSE the district court’s judgment.




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                                       No. 19-30665
STUART KYLE DUNCAN, Circuit Judge, dissenting in part and concurring in
the judgment in part:
       Regrettably, I am unable to join Judge Jones’s well-crafted merits
opinion, because I am not persuaded the plaintiffs have Article III standing.
       The normal standing requirements of injury-in-fact, traceability, and
redressability apply to claims under the Voting Rights Act (“VRA”). See, e.g.,
Harding v. Cty. of Dallas, 948 F.3d 302, 307 (5th Cir. 2020); OCA-Greater
Houston v. Texas, 867 F.3d 604, 609–14 (5th Cir. 2017); League of United Latin
Am. Citizens, Dist. 19 v. City of Boerne, 659 F.3d 421, 430–31 (5th Cir. 2011).
As the majority implicitly concludes, the cognizable injury here is alleged
minority vote dilution caused by at-large judicial elections for Louisiana’s 32nd
Judicial District Court (“JDC”). Where I part ways with the majority, however,
is its conclusion that the plaintiffs have shown traceability and redressability
for this injury as to the Governor of Louisiana. 1
       The plaintiffs have not shown that the Governor plays any role in
administering at-large judicial elections in the 32nd JDC, or judicial elections
anywhere else in Louisiana. Consequently, they cannot demonstrate that any
injury stemming from this election practice is “fairly traceable” to the
Governor, nor that the injury will “likely be redressed” by an order against
him. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560, 561 (1992) (cleaned up). 2




       1 The Governor and Attorney General are the only two state officials remaining in the
lawsuit. The majority does not find traceability or redressability as to the Attorney General,
but only the Governor.
       2 Plaintiffs point out that the Governor signs the commissions of judges elected in the
32nd JDC, see La. Stat. Ann. § 18:513(A)(5), that he must sign legislation before it goes into
effect, see La. Const. art. III, § 18(A), and that he is empowered to set dates for special
elections needed to fill vacancies, see LA. CONST. art. V, § 22(B). That begs both standing
questions—namely, whether the Governor’s exercise of any of these powers caused the
plaintiffs’ alleged vote-dilution injury, and whether an injunction with respect to any of these
powers would likely redress that injury. The answer to both questions is no.
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                                        No. 19-30665
Other Louisiana officials do have legal duties in judicial elections—such as
parish clerks of court, La. Stat. Ann. § 18:422, boards of election supervisors,
id. § 18:243(B), or commissioners-in-charge, id. § 18:424(C). These are the
kinds of officials typically sued in voting cases like this one. 3 The plaintiffs
could have sued them but did not. They did sue the Secretary of State, who is
the state’s “chief election officer,” id. § 18:421, and has certain election-related
duties, see id. §§ 18:421(B)–(D), 18:18. 4 But the plaintiffs dismissed the
Secretary, with prejudice, during district court proceedings. I have no idea why
the plaintiffs made these litigation choices. But their effect was to dissolve any
case or controversy that is the basic premise for federal judicial action. See
DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 (2006) (“Article III standing
enforces the Constitution’s case-or-controversy requirement.” (cleaned up)). 5




        Although the majority does not address whether the plaintiffs have standing to sue
the Attorney General, the plaintiffs’ arguments on that point are even worse. For example,
they assert that the Attorney General is the chief legal officer of the state, La. Const. art. IV,
§ 8, that he must give opinions on legal questions when requested by certain officials, La.
Stat. Ann. § 49:251, and he represents state interests in election-related litigation, La. Const.
art. IV, § 8. None of those duties comes close to establishing traceability or redressability for
injuries stemming from at-large judicial elections in the 32nd JDC.
       3 See, e.g., Brief of Respondents in Opposition, Chisom v. Roemer, 501 U.S. 380 (1991),
1990 WL 10022952 (secretary of state and commissioner of elections); Thornburg v. Gingles,
478 U.S. 30 (1986) (state board of elections, members of the board, secretary of state, and
others); United States v. Mississippi, 380 U.S. 128 (1965) (state, members of state board of
elections commissioners, and county registrars of voters); Harding, 948 F.3d 302 (county
commissioners and others); League of United Latin American Citizens, Council No. 4434 v.
Clements, 999 F.2d 831 (5th Cir. 1993) (en banc) (secretary of state, members of the Texas
Judicial Districts Board, and others).
       4None of these state election officials, including the Secretary of State, are subject to
the Governor’s control.
       5 Compare Jacobson v. Fla. Sec’y of State, 957 F.3d 1193, 1207–10 (11th Cir. 2020) (no
traceability and redressability for equal protection claim because plaintiffs failed to sue
independent officials who administered challenged ballot-ordering law), with OCA-Greater
Houston, 867 F.3d at 613–14 (finding traceability and redressability in VRA suit because
plaintiffs sued Texas Secretary of State, the “chief election officer of the state” who is
responsible for maintaining uniformity in state election laws (citations omitted)).
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                                      No. 19-30665
       Look at it this way. The district court’s injunction barred the Governor
and Attorney General from “administering, implementing, or conducting” the
at-large judicial elections at issue, and demanded they “ensure” future
elections would follow the court’s remedial plan. Had the plaintiffs ultimately
won, would that injunction have likely redressed their injuries? No, because
neither the Governor nor the Attorney General has authority to “administer,
implement, or conduct” those elections, or to “ensure” how future elections will
take place. The order might as well have enjoined the Secretary of the
Louisiana Department of Wildlife and Fisheries. “For all practical purposes,”
that is, the injunction would be “utterly meaningless.” Okpalobi v. Foster, 244
F.3d 405, 426 (5th Cir. 2001) (en banc). Indeed, the majority alludes to this
problem. It “takes no position” on whether, had the plaintiffs won, “standing
would exist and the [district] court could have enforced its remedy without the
continued presence of the Secretary of State, who is Louisiana’s chief elections
officer.” Maj. Op at 6 n.5. But that articulates precisely the key redressability
question and, without answering it, the majority lacks authority to proceed to
the merits. See Singh v. RadioShack Corp., 882 F.3d 137, 151 (5th Cir. 2018)
(“Standing must be decided at the threshold of every federal case—before a
determination on the merits.”). 6
       The majority suggests there is something “unique” about this VRA case
when it comes to standing, Maj. Op. at 6 n.5, but cites no authority fleshing



       6 The plaintiffs cite Utah v. Evans, 536 U.S. 452 (2002), involving a challenge to the
method of conducting the 2000 national census, but it does not help them. Utah held an
injunction against the Secretary of Commerce satisfied redressability because “the practical
consequence of [a favorable decision] would amount to a significant increase in the likelihood
that the plaintiff would obtain relief that directly redresses the injury suffered”—namely, a
revised census count leading to an additional representative for Utah. Id. at 464 (emphasis
added). But the plaintiffs have not even met that mark—they point to no evidence suggesting
that the injunction entered by the district court would “significant[ly] increase . . . the
likelihood” that at-large elections in the 32nd JDC would be conducted differently.
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                                  No. 19-30665
out that proposition. It does point to United States v. Mississippi, 380 U.S. 128
(1965), but that falls short. In that case challenging discriminatory voting
tests, the plaintiffs sued not only the State of Mississippi, but also “three
members of the Mississippi State Board of Election Commissioners, and six
county Registrars of Voters”—officials who administered the voting tests at
issue. See id. at 130, 132–33. As a result, I fail to grasp how Mississippi teaches
that the normal standing rules of traceability and redressability apply in a
“unique” way to a VRA vote-dilution case like this one.
      To be sure, Mississippi also teaches that the VRA validly abrogates state
sovereign immunity as legislation enforcing the 15th Amendment. See id. at
140; see also, e.g., OCA-Greater Houston, 867 F.3d at 614 (explaining “[t]he
VRA . . . validly abrogated state sovereign immunity”) (citing Mixon v. State of
Ohio, 193 F.3d 389, 398–99 (6th Cir. 1999)). For that reason, I have no quarrel
with the majority’s conclusion that the Ex parte Young arguments raised by
the Attorney General must fail. See Maj. Op. at 6. But that does not solve the
traceability or redressability problems, because Article III standing is distinct
from Young. See OCA-Greater Houston, 867 F.3d at 609–14 (treating standing
and Young as separate questions in VRA case). In other words, even though
Young might pose no independent obstacle, the plaintiffs may still lack Article
III standing because they have “sue[d] the wrong defendant.” Jacobson v. Fla.
Sec’y of State, 957 F.3d 1193, 1209 (11th Cir. 2020).
      On this latter question, unfortunately, our precedents do not speak with
one voice. On the one hand, we have treated Young separately from the
traceability and redressability components of standing, most prominently in
our en banc decision in Okpalobi v. Foster, 244 F.3d 405, 426–27 (5th Cir. 2001)




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                                      No. 19-30665
(en banc). 7 And we have done so in the VRA context: in OCA-Greater Houston,
we found traceability and redressability as to the Texas Secretary of State
given that official’s “enforcement connection” to a challenged Texas election
law. See 867 F.3d at 613–14 (quoting Okpalobi, 244 F.3d at 427). On the other
hand, our decision in Allstate Insurance Co. v. Abbott, 495 F.3d 151 (5th Cir.
2007), appears to elide Young and standing. In that case, involving dormant
commerce clause and First Amendment challenges to a Texas law, state
officials removed to federal court and thus waived sovereign immunity. See id.
at 158 n.12. The Young “fiction” was therefore irrelevant. Id. at 159. But this,
we explained, made the suit really “against the state,” not the officials, and
rendered causation and redressability “eas[y].” Id. The “state” obviously caused
the plaintiffs’ injury by passing the law, and an injunction against the “state”
would remedy it. Id. at 159–60. No inquiry was made as to the officials’
connection to the challenged law.
       The majority alludes to Allstate, see Maj. Op. at 5, but does not squarely
rely on it. That is wise, in my view, because extending Allstate to the VRA
would mean that traceability and redressability would always be found
regardless of which officials were sued. It is hard to believe that is the law,
especially because we have recently applied traceability and redressability in
VRA cases without mentioning Allstate. See, e.g., Harding, 948 F.3d at 307;
OCS-Greater Houston, 867 F.3d at 609–14. Absent any other authority




       7  Compare Okpalobi, 244 F.3d at 416–19 (plurality op.) (discussing Young’s
requirement that there be “some connection” between defendant and duty to enforce
challenged law), with id. at 426–27 (majority op.) (addressing redressability separately and
concluding “[t]he governor and attorney general have no power to redress the asserted
injuries”); see also OCA-Greater Houston, 867 F.3d at 609–14 (treating questions separately).
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                                       No. 19-30665
squarely on point, I would rely on the normal standing requirements and find
no traceability or redressability as to the Governor. 8
       In sum, given the plaintiffs’ lack of Article III standing, I would vacate
the injunction and remand with instructions to dismiss the plaintiffs’ lawsuit
for lack of jurisdiction. See Hotze v. Burwell, 784 F.3d 984, 1000 (5th Cir. 2015).
I therefore respectfully dissent from the portion of Part I of the majority
opinion that concludes the plaintiffs have standing to sue the Governor.




       8 The majority suggests it is relevant that “the Governor has been a party defendant
in nearly all of Louisiana’s voting rights cases challenging judicial districts.” Maj. Op. at 5
(citing Chisom, 501 U.S. at 384; Prejean v. Foster, 83 Fed. App’x 5 (5th Cir. 2003); Hall v.
Louisiana, 983 F. Supp. 2d 820, 824 (M.D. La. 2013)). I disagree. In each of the cited cases,
the plaintiffs also sued the Secretary of State or the Commissioner of Elections, or both. See
Brief of Respondents in Opposition, Chisom, 501 U.S. 380, 1990 WL 10022952 (secretary of
state and commissioner of elections); Prejean, 83 Fed. App’x 5 (commissioner of elections);
Memorandum in Opposition to Motion for Preliminary Injunction, Hall, 983 F. Supp. 2d 820,
2013 WL 12308255 (secretary of state). None of these cases stands for the proposition that
plaintiffs may sue the Governor alone in VRA cases.
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