Chisom v. State of Louisiana ( 2023 )

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United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
____________ FILED
October 25, 2023
No. 22-30320 Lyle W. Cayce
____________ Clerk
Ronald Chisom; Marie Bookman, also known as Governor;
Urban League of Louisiana,
Plaintiffs—Appellees,
United States of America; Bernette J. Johnson,
Intervenor Plaintiffs—Appellees,
versus
State of Louisiana, ex rel. Jeff Landry, Attorney General,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:86-CV-4075
______________________________
Before Wiener, Stewart, and Engelhardt, Circuit Judges.
Jacques L. Wiener, Jr., Circuit Judge:
Defendant-Appellant State of Louisiana, ex rel. Jeff Landry (“the
State”), seeks to dissolve a consent decree that pertains to the method of
selecting justices for the Louisiana Supreme Court. The State attempts to
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dissolve the consent judgment under the first and third clauses of Rule
60(b)(5) of the Federal Rules of Civil Procedure. The State contends that the
judgment has been satisfied, released, or discharged because the State has
substantially complied with the decree for more than thirty years and the
decree was intended to terminate at a defined milestone. The State further
contends that it is no longer equitable to enforce the consent judgment
prospectively because of widespread malapportionment in Louisiana’s
supreme court election districts. The district court denied the State’s motion
to dissolve, holding that the State had failed to meet the evidentiary burdens
associated with the first and third clauses of Rule 60(b)(5). For the following
reasons, we AFFIRM.
I. FACTS AND PROCEEDINGS
This case arises from the complex and controversial history
concerning Black voter dilution in the state of Louisiana. On September 19,
1986, Ronald Chisom, Marie Bookman, Walter Willard, Marc Morial, Henry
Dillon, III, and the Louisiana Voter Registration/Education Crusade filed a
class action against the State of Louisiana and various state officials in their
official capacities. Those plaintiffs challenged the method of selecting
Louisiana Supreme Court justices, alleging that the former First Supreme
Court District violated Section 2 of the Voting Rights Act of 1965, 52 U.S.C.
§ 10301 (“the VRA”), by diluting Black votes in Louisiana. 1 At the time, the
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1
See Allen v. Milligan, 143 S. Ct. 1487, 1507 (2023) (“Section 2 prohibits States
from imposing any standard, practice, or procedure ... in a manner which results in a denial
or abridgement of the right of any citizen . . . to vote on account of race or color . . . [w]hat
2
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First Supreme Court District was a multi-parish, multi-member district that
included Orleans Parish, which had a majority-minority population, as well
as three majority-white parishes: Jefferson, St. Bernard, and Plaquemines
Parishes.
The plaintiffs’ election district challenge spawned six years of
litigation which included multiple appeals to the Fifth Circuit and the U.S.
Supreme Court. One of the initial questions was whether Section 2 applied
to state judicial elections, which the United States Supreme Court answered
in the affirmative in its 1991 decision, Chisom v. Roemer. 2 Following more
contentious litigation regarding Section 2, the parties entered into a consent
judgment to resolve their claims (“the Consent Judgment”). The Consent
Judgment emphasized that the “defendants do not agree with” the plaintiffs’
contention that the multi-member district violated Section 2. Rather, the
State explained that it “only enter[ed] into this compromise agreement to
resolve [the] extensive and costly litigation.”
The Consent Judgment’s stated purpose is to “ensure that the system
for electing the Louisiana Supreme Court is in compliance with Section 2 of
the Voting Rights Act,” using a combination of temporary and long-term
action items. The Consent Judgment directs the Louisiana Legislature to
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that means, § 2 goes on to explain, is that the political processes in the State must be equally
open, such that minority voters do not “have less opportunity than other members of the
electorate to participate in the political process and to elect representatives of their
choice.”) (internal quotations and citations omitted).
2
501 U.S. 380, 385 (1991).
3
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reapportion the seven districts of the Louisiana Supreme Court to create one
new supreme court district that is majority Black in voting age population and
that includes all of Orleans Parish. The Consent Judgment also specifies that
the justice for this new district will be elected once a vacancy occurs in the
former First Supreme Court District. Additionally, the Consent Judgment
establishes a temporary eighth seat on the Louisiana Supreme Court (“the
Chisom Seat”), to be occupied by a Louisiana Fourth Circuit Court of Appeal
judge until such vacancy occurred.
The Consent Judgment was signed by Judge Charles Schwartz, Jr. of
the Eastern District of Louisiana and took effect on the enactment of
legislation that codified the Consent Decree’s terms on August 21, 1992.
That year, the Louisiana Legislature enacted Act 776, which reapportioned
Louisiana into seven voting districts and mandated that the Louisiana
Supreme Court be comprised of one justice from each of those districts. 3 The
new majority Black district—known as District Seven—encompasses most
but not all of Orleans Parish. An addendum reflecting this caveat was added
to the Consent Judgment in January 2000 by agreement of the parties. The
Louisiana Legislature also enacted Act 512, which created the temporary
Chisom Seat on the Louisiana Supreme Court. 4 On January 1, 1993, Revius
Oliver Ortique, Jr. became the first ever Black justice to serve on the
Louisiana Supreme Court, as well as the first justice elected to the Chisom
_____________________
3
La. Sess. Law Serv. Act 776 (H.B. 581) (1992).
4
La. Sess. Law Serv. Act 512 (S.B. 1255) (1992).
4
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Seat. The following year, Bernette Johnson was elected to the Chisom Seat,
and in 2000, she was elected as the first associate justice from the new
District Seven.
In 2012, litigation arose regarding whether Justice Johnson’s service
in the Chisom Seat could be credited toward chief justice tenure. 5 United
States District Judge Susie Morgan, who had recently succeeded Judge
Schwartz in supervising the Consent Judgment, ruled that the language of the
Consent Judgment contemplated that Justice Johnson’s Chisom Seat service
would count toward chief justice tenure. 6 Judge Morgan also addressed
whether the federal court had continuing jurisdiction over the Consent
Judgment. 7 She ruled in the affirmative, explaining that the Consent
Judgment in this case “provide[s] the Court with a sufficient jurisdictional
basis to resolve the dispute pending before it.” 8 She further held that the
federal court retained jurisdiction until the “final remedy [of the of the
Consent Judgment] is implemented.” 9 Justice Johnson became the Louisiana
Supreme Court’s first Black chief justice on February 1, 2013, and served
with distinction in that role until December 2020. 10 Following Chief Justice
Johnson’s retirement, Piper D. Griffin, who is also a Black woman, was
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5
Chisom v. Jindal, 890 F. Supp. 2d 696 (E.D. La. 2012).
6
Id. at 711-18.
7
Id. at 711.
8
Id.9
Id.10
Id.5
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elected by the voters of District Seven to serve a ten-year term as an associate
justice.
In 2019, a different group of plaintiffs filed suit in the Middle District
of Louisiana with the goal of creating a second majority-minority supreme
court district. 11 The Middle District of Louisiana certified an interlocutory
appeal to this circuit to decide whether the Eastern District of Louisiana has
exclusive subject matter jurisdiction over all matters contemplated by the
Consent Decree. 12 In Anthony Allen, et al. v. State of Louisiana, et al., this
court held that the Eastern District did not enjoy exclusive jurisdiction over
election-districting matters contemplated by the Consent Decree. 13 We
explained that the Consent Judgment “aimed to remedy alleged vote dilution
in one supreme court district, not to reform the whole system.” 14 In dicta,
this court stated that it was unsure that the Consent Judgment was still in
force because its final remedy might have been implemented when Johnson
became Chief Justice of the Louisiana Supreme Court. 15 We declined to
answer that question, however, noting that “Louisiana has evidently never
asked the Eastern District to vacate the decree.” 16
_____________________
11
Allen v. Louisiana, 14 F.4th 366, 368 (5th Cir. 2021).
12
Id.13
Id.14
Id. at 374.
15
Id.16
Id.6
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II. PROCEEDINGS BELOW
On December 2, 2021, the State filed a motion to dissolve the Consent
Judgment under Federal Rule of Civil Procedure 60(b)(5), asserting that the
Consent Judgment had been satisfied, released, or discharged and that
applying the Consent Judgment prospectively was no longer equitable. The
State alleged that this court’s opinion in Allen “ma[de] clear that the Consent
Decree has accomplished its objectives.” The State contended that the
Consent Judgment’s final remedy was satisfied in 2020 when Justice Johnson
retired as Chief Justice of the Louisiana Supreme Court.
The State also asserted that the Consent Judgment had increased
malapportionment in the seven supreme court districts and had stymied the
Louisiana Legislature’s efforts to remedy that issue. It claimed that “the
Louisiana Legislature is currently preparing to redraw Louisiana’s political
districts” and that “[t]he boundaries of the seven Supreme Court districts
that resulted from the Consent Decree can no longer be maintained while
adhering to traditional redistricting principles.” The State also contended
that, as a result of the Consent Judgment, “the voting strength of voters in
one district is considerably greater than the voting strength of voters in
another district in violation of the one man, one vote principle.”
In support of its motion, the State attached the following exhibits: this
circuit’s opinion in Allen; the Consent Judgment in its original and amended
forms; the Secretary of State election rolls for Justice Ortique, Chief Justice
Johnson, and Justice Griffin; a September 2021 presentation entitled
7
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“Redistricting in Louisiana;” and a letter from the Department of Justice
regarding Act 776.
Plaintiffs-Appellees Ronald Chisom, Marie Bookman, and the Urban
League of Louisiana (collectively, “the Chisom Plaintiffs”) and Intervenor
Plaintiffs-Appellees United States of America and Bernette Johnson, filed
oppositions to the motion to dissolve. The Chisom Plaintiffs and Intervenor
Plaintiffs-Appellees contended that the motion to dissolve should be denied
because the State had not carried its evidentiary burden to show that the
fundamental purpose of the Consent Judgment had been satisfied or that
changed circumstances warranted dissolution. The Chisom Plaintiffs also
took issue with the fact that the State had sought dissolution absent any
guarantees that no additional VRA or constitutional violations would occur.
Referencing “Louisiana’s long history of discrimination in the judicial
branch,” the Chisom Plaintiffs asserted that the State sought to “wipe this
slate clean with the stroke of a pen and without any assurance that a new,
undisclosed map will not snatch away Black Louisianans[’] hard-won
opportunity to participate in these elections equally.”
On May 24, 2022, the district court issued an order and reasons
denying the State’s motion to dissolve the Consent Judgment. 17 The district
court evaluated the State’s motion under the first and third clauses of Rule
60(b)(5) and held that the State had failed to meet its burden of proof under
both theories. For the first clause, which states that a Consent Judgment may
_____________________
17
Chisom v. Edwards, 342 F.R.D. 1, 6 (E.D. La. 2022).
8
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be dissolved when “the judgment has been satisfied, released, or
discharged,” the court looked to the U.S. Supreme Court’s opinion in Board
of Education of Oklahoma City Public Schools, Independent School District No.
89 v. Dowell. 18 That decision established the so-called Dowell standard, which
asks “whether the [State] had complied in good faith with the . . . decree since
it was entered, and whether the vestiges of past discrimination had been
eliminated to the extent practicable.” 19 The court applied Dowell and
concluded that the State’s motion failed under both prongs. The court
emphasized that the Consent Judgment “reiterates its purpose is ‘to ensure
black voters in the Parish of Orleans have an equal opportunity to participate
in the political process and to elect candidates of their choice.’”
The district court then evaluated the third clause of Rule 60(b)(5),
which states that a consent judgment may be dissolved when “applying it
prospectively is no longer equitable.” 20 For this clause, the court evaluated
whether the State had demonstrated a “significant change in factual
conditions” which would warrant termination of the consent judgment. The
court looked to Rufo v. Inmates of Suffolk County Jail, in which the U.S.
Supreme Court devised a two-part test to evaluate whether applying a
consent decree prospectively is equitable. 21 Applying Rufo, the district court
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18
498 U.S. 237, 250 (1991).
19
Id.20
Fed. R. Civ. P. 60(b)(5).
21
502 U.S. 367, 391–92 (1992).
9
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observed that the “severe malapportionment” identified by the State did not
constitute a “significant change” under step one of Rufo. The court
explained that malapportionment throughout Louisiana’s supreme court
districts is not a new problem and that “District Seven in particular has
become less malapportioned, shifting from approximately 32.3%
underpopulation after the 2010 census to approximately 28.4%
underpopulation today.” The court further noted that the State had not
shown that continued enforcement of the Consent Judgment would be
detrimental to the public interest. The court observed that the Supreme
Court had held that juridical districts are not representative districts and
therefore do not need to be equally apportioned, and it concluded that the
Consent Judgment does not prevent the Louisiana legislature from
reapportioning Louisiana’s supreme court districts. The State timely
appealed.
III. STANDARD OF REVIEW
We review a district court’s denial of a motion to vacate or modify a
judgment under Rule 60(b)(5) for abuse of discretion. 22 In this circuit, “the
district court’s ruling is ‘entitled to deference,’ but we review de novo ‘any
questions of law underlying the district court’s decision.’” 23 We review any
factual findings for clear error. 24 When reviewing the denial of a Rule 60(b)
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22
Anderson v. City of New Orleans, 38 F.4th 472, 479 (5th Cir. 2022).
23
Frew v. Janek, 780 F.3d 320, 326 (5th Cir. 2015) (internal citation omitted).
24
Walker v. U.S. Dep’t of Hous. & Urb. Dev., 912 F.2d 819, 825 (5th Cir. 1990); see
also Frew v. Janek, 820 F.3d 715, 723 (5th Cir. 2016).
10
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motion, “[i]t is not enough that the granting of relief might have been
permissible, or even warranted—denial must have been so unwarranted as to
constitute an abuse of discretion.” 25 Moreover, “[t]he burden is on the
moving party to prove that modification is warranted, regardless of whether
the party seeks to lessen its own responsibilities under the decree, impose a
new and more effective remedy, or vacate the order entirely.” 26
IV. ANALYSIS
The State contends that the district court abused its discretion in
denying the motion to dissolve the Consent Judgment under the first and
third clauses of Rule 60(b)(5) because (1) the State has substantially complied
with the Consent Judgment for decades and the Consent Judgment’s action
items have been implemented, and (2) applying the Consent Judgment
prospectively is inequitable because it has caused widespread
malapportionment and constrained the Louisiana legislature. The State
requests that we reverse the district court’s judgment regarding the State’s
motion to dissolve and that we then completely dissolve the Consent
Judgment.
Because the first and third clauses of Rule 60(b)(5) command different
evidentiary burdens, we examine each separately to determine whether the
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25
Cooper v. Noble, 33 F.3d 540, 544 (5th Cir. 1994), supplemented by Cooper v.
Noble, 41 F.3d 212 (5th Cir. 1994) (quoting Seven Elves, Inc. v. Eskenazi, 635 F.2d 396, 402
(5th Cir. Unit A Jan. 1981)).
26
League of United Latin Am. Citizens, Dist. 19 v. City of Boerne, 659 F.3d 421, 438
(5th Cir. 2011) (citing Rufo, 502 U.S. at 384; United States v. United Shoe Mach. Corp., 391
U.S. 244, 249 (1968)).
11
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district court abused its discretion in denying the State’s motion to dissolve.
We begin first with a clarification of the Consent Judgment’s “final remedy”
under Louisiana’s contract law, which the parties have hotly disputed
throughout this matter and which is relevant to our jurisdiction as well as our
Rule 60(b)(5) analysis. We next turn to the appropriate evidentiary burden
under Rule 60(b)(5)’s first clause and whether the State met it through its
motion to dissolve. Finally, we identify the appropriate evidentiary burden
under Rule 60(b)(5)’s third clause and determine whether it was met by the
State.
A. Whether the State met the requisite evidentiary burden under Rule
60(b)(5)’s first clause
i. The Consent Judgment’s final remedy
“Consent judgments have elements of both contracts and judicial
decrees.” 27 Because of their hybrid nature, consent decrees are construed
according to “general principles of contract interpretation.” 28 Moreover,
“[t]he primary concern of a court in construing a written contract is to
ascertain the true intentions of the parties as expressed in the instrument.” 29
Courts must therefore examine the “unambiguous language in a contract”
and enforce “‘the objective intent’ evidenced by the language used.” 30 This
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27
Frew ex rel Frew v. Hawkins, 540 U.S. 431, 437 (2004) (citing Firefighters v.
Cleveland, 478 U.S. 501, 519 (1986)).
28
Dean v. City of Shreveport, 438 F.3d 448, 460 (5th Cir. 2006).
29
Tex. v. Am. Tobacco Co., 463 F.3d 399, 407 (5th Cir. 2006).
30
Id. at 407 (internal citation omitted).
12
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analysis must include consideration of all the contractual terms because
“courts should examine and consider the entire writing in an effort to
harmonize and give effect to all the provisions of the contract so that none
will be rendered meaningless.” 31
Under Louisiana law, until the specified goal or “final remedy” of a
consent decree has been achieved, the court overseeing the decree retains
subject matter jurisdiction to interpret and enforce it. 32 The court overseeing
a consent decree is the ultimate tribunal for determining compliance and
deciding whether the decree should be dissolved or vacated. 33 However, a
contract that resolves a lawsuit “extends only to those matters the parties
intended to settle and the scope of the transaction cannot be extended by
implication.” 34
Here, the district court applied Louisiana contract law when it
analyzed the final remedy of the Consent Judgment and concluded that it
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31
Id. at 408.
32
La. State Conf. of the NAACP v. Louisiana, 490 F. Supp. 3d 982, 1019–22 (M.D.
La. 2000); see also Nehmer v. U.S. Dep’t of Veterans Affairs, 494 F.3d 846, 856 (9th Cir.
2007).
33
La. State Conf. of the NAACP, 490 F. Supp. at 1000 (citing Dowell, 498 U.S. at
247-50).
34
Trahan v. Coca Cola Bottling Co. United, Inc., 2004-0100, p. 15 (La. 3/2/05); 894
So. 2d 1096, 1107 (citing La. Civ. Code art. 3073; Ortego v. State, Dep’t of Transp. & Dev.,
96-1322, p. 7 (La. 2/25/97); 689 So. 2d 1358, 1363; Brown v. Drillers, Inc., 93-1019, p.7 (La.
1/14/94); 630 So. 2d 741, 748; see also La. Civ. Code art. 3076 (“A compromise settles only
those differences that the parties clearly intended to settle, including the necessary
consequences of what they express.”).
13
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retained subject matter jurisdiction. The district court acknowledged that the
Consent Judgment “implements specific remedies” but held that its final
remedy had not yet been implemented. The court determined that the
Consent Judgment is prospective in nature because it “repeatedly states its
purpose is to ensure compliance with Section 2 of the VRA.” The district
court held that the State had not shown that it was well-positioned to ensure
future compliance with the Section 2 of the VRA and thus denied its motion
to dissolve.
The parties in this matter dispute the Consent Judgment’s final
remedy under Louisiana contract law. Relying on this circuit’s dicta in
Allen, 35 the State contends that the final remedy of the Consent Judgment
was implemented when Chief Justice Johnson’s tenure ended in 2020. The
State asserts that enforcing the Consent Judgment beyond that event is
inappropriate because there are no action items left for the State to fulfill.
Intervenor Plaintiffs-Appellees, on the other hand, agree with the district
court’s assessment that the Consent Judgment is prospective in nature. They
point out that the Consent Judgment “clearly contemplates future
compliance as applied to Black voters in Orleans Parish.”
There are several key clauses in the Consent Judgment that assist in
identifying its final remedy. At its beginning, the Consent Judgment states
that “[t]he relief contained in this consent judgment will ensure that the
_____________________
35
14 F.4th at 374 (“In light of those developments, one might think the decree’s
final remedy has been implemented. But Louisiana has evidently never asked the Eastern
District to vacate the decree.”).
14
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system for electing the Louisiana Supreme Court is in compliance with
Section 2 of the Voting Rights Act.” The Consent Judgment next details
specific action items associated with this objective, including the
establishment of the Chisom Seat, the enactment of Acts 776 and 512, and
the creation of a new judicial district. In the language ordering the creation of
District Seven, the Consent Judgment states that “[t]he reapportionment
shall be effective on January 1, 2000, and future Supreme Court elections
after the effective date shall take place in the newly reapportioned districts.”
The Consent Judgment concludes by stating, “[t]he Court shall retain
jurisdiction over this case until the complete implementation of the final
remedy has been accomplished.”
The district court correctly determined that the Consent Judgment’s
final remedy is the State’s prospective compliance with Section 2 of the
VRA. This circuit recently recognized that the Consent Judgment is an
“institutional reform injunction” that contemplates future compliance. 36
When a consent decree contemplates future compliance, “the prospective
provisions of the consent decree operate as an injunction.” 37 As noted above,
however, the Consent Judgment repeatedly states that its goal is to “ensure”
that the Louisiana Supreme Court’s election methods comply with the VRA.
Each action item in the Consent Judgment is in furtherance of the ultimate
_____________________
36
Allen, 14 F.4th at 373.
37
La. State Conf. of the NAACP, 490 F. Supp. 3d at 999; see also Williams v.
Vukovich, 720 F.2d 909, 920 (6th Cir. 1983) (citing Plummer v. Chemical Bank, 668 F.2d
654, 659 (2d Cir. 1982); Carson v. Am. Brands, 450 U.S. 79, 84 n.9 (1981)).
15
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remedy of ensuring compliance with the VRA. It is true that some of these
action items have already been fulfilled. Whether the Consent Judgment’s
final remedy has been satisfied by the State is a separate question that is
addressed in turn.
We analyze whether the final remedy was implemented, mindful of
the Consent Judgment’s proper scope. Our precedent instructs us to avoid
overreading consent decrees and adding “new requirement[s] to which the
parties never agreed.” 38 Moreover, “federalism is protected, not by
overextending such injunctions, but by confining them to their proper
scope.” 39 In Allen, we clarified the scope of the Consent Judgment, holding
that the Consent Judgment “aim[s] to remedy alleged vote dilution in one
supreme court district, not to reform the whole system.” 40 We therefore
confine our analysis to the State’s prospective compliance with Section 2 of
the VRA through District Seven specifically.
ii. Determining the correct evidentiary burden
The parties disagree about the appropriate evidentiary burden for
determining whether “the judgment has been satisfied, released, or
discharged” under the first clause of Rule 60(b)(5). 41 The State advocates for
a lenient “substantial compliance” standard, while the Chisom Plaintiffs and
_____________________
38
Janek, 780 F.3d at 328–29.
39
Allen, 14 F.4th at 373 (quoting Horne, 557 U.S. at 448).
40
Id. at 374.
41
Fed. R. Civ. P. 60(b)(5).
16
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Intervenor-Appellees advocate for the more demanding Dowell standard,
which asks “whether the [State] had complied in good faith with the . . .
decree since it was entered, and whether the vestiges of past discrimination
had been eliminated to the extent practicable.” 42
The district court applied the Dowell standard to determine whether
dissolution of the Consent Judgment under Rule 60(b)(5)’s first clause is
warranted. The court acknowledged that Louisiana contract law governs the
Consent Judgment but noted that, because of its nature as an institutional
reform decree, the Consent Judgment requires a “flexible standard” to
determine whether dissolution is appropriate. In support, the court
referenced League of United Latin American Citizens, District 19 v. City of
Boerne, in which this circuit held that “[d]istrict courts must take a flexible
approach to motions to modify consent decrees and to motions to modify or
vacate institutional reform decrees.” 43 The district court noted that,
although City of Boerne interpreted Rule 60(b)(5)’s third clause rather than
its first, the opinion references a passage in Rufo which discusses and
approves of the Dowell standard. 44 The district court also noted that in Frew
v. Janek, this circuit held that “motions under the first clause of Rule
_____________________
42
498 U.S. at 250.
43
659 F.3d 421, 437–40 (5th Cir. 2011).
44
See 502 U.S. at 380.
17
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60(b)(5) are subject to the same flexible theme articulated by the Supreme
Court in the context of the third clause.” 45
The district court further explained that, even though the Fifth
Circuit has not directly addressed the applicability of Dowell to consent
decrees outside the context of desegregation, it could draw on guidance from
other circuits. The district court provided a survey of cases from the Sixth,
Ninth, Eleventh, Fourth, Eighth, and First circuits in which Dowell was
applied or cited in reference to motions to dissolve institutional reform
decrees under Rule 60(b)(5), particularly in its first clause. 46 The court
concluded that there is enough support from those other circuits to reliably
apply Dowell to the present motion to dissolve. The court also noted that, in
multiple cases, the Fifth Circuit had indirectly approved of Dowell by
endorsing the “flexible approach” to resolving motions under Rule 60(b)(5).
The district court ultimately held that dissolution of the Consent
Judgment under Rule 60(b)(5)’s first clause was inappropriate because the
State had not met either of Dowell’s requirements. With regard to good faith,
the court held that “although the State has complied with the terms of the
Consent Judgment” by implementing various action items, it “has not shown
_____________________
45
See 780 F.3d 320 at 327.
46
See, e.g., Johnson v. Heffron, 88 F.3d 404, 405 n.1 (6th Cir. 1996); Youngblood v.
Dalzell, 925 F.2d 954, 960–62 (6th Cir. 1991); Jeff D. v. Otter, 643 F.3d 278, 283 (9th Cir.
2011); Alexander v. Britt, 89 F.3d 194, 199–203 (4th Cir. 1996); Allen v. Ala. State Bd. of
Educ., 164 F.3d 1347, 1350–54 (11th Cir. 1999), vacated, 216 F.3d 1263 (11th Cir. 2000);
McDonald v. Carnahan, 109 F.3d 1319, 1321–22 (8th Cir. 1997); Inmates of Suffolk Cnty. Jail
v. Rufo (Rufo II), 12 F.3d 286, 288, 290, 292-94 n.3 (1st Cir. 1993).
18
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that there is little or no likelihood the original violation will not be repeated
when the Consent Judgment is lifted.” The court stressed that “the good
faith inquiry looks to both past compliance and future prospects.” 47 The
court further held that the State had not demonstrated that the vestiges of
past discrimination had been nearly eliminated because it had not shown that
“the purpose of the consent order has been fulfilled.”
The State takes issue with the district court’s application of the Dowell
standard and contends that doing so constituted reversible error. It asserts
that Dowell is wholly inapplicable to this case because the case (1) did not
involve a motion under Rule 60(b)(5), and (2) arose in the context of school
desegregation. The State contends that the district court should have instead
applied the “substantial compliance” standard under Louisiana contract law.
Substantial compliance does not require perfect compliance, says the State,
because that standard “‘excuses deviations from a contract’s provisions that
do not severely impair the contractual provision’s purpose.’” 48 Referencing
Janek, the State claims that this circuit “recently clarified” that a defendant
“can obtain relief under prong 1 by demonstrating ‘substantial compliance’
with” a consent judgment. 49 The State asserts that, because the purpose of
_____________________
47
See Johnson, 88 F.3d at 405 n.1.
48
Janek, 820 F.3d at 721 (quoting Janek, 780 F.3d at 330).
49
Id. The State also references a recent unpublished case from this circuit in
support: Frew v. Young, No. 21-40028, 2022 WL 135126, at *3 (5th Cir. Jan. 13, 2022). In
that case, we applied the substantial compliance standard to relief sought under Rule
60(b)(5)’s first prong. However, that case involved a Texas consent decree and substantial
19
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the Consent Judgment was fulfilled over the past thirty years, it has
“substantially complied” with the terms of the agreement. Citing Horne, the
State concludes that “continued enforcement of the order is not only
unnecessary, but improper” because the objective of the Consent Judgment
has been achieved.
“It is well-settled that a federal court has the inherent authority to
enforce its own orders, including consent decrees agreed to by parties and
approved by the Court.” 50 “Federal courts are not reduced to approving
consent decrees and hoping for compliance. Once entered, a consent decree
may be enforced.” 51 In Hawkins, the U.S. Supreme Court held that the party
seeking dissolution of a consent decree must “establish[] reason to modify
the decree,” and “where it has not done so . . . the decree should be enforced
according to its terms.” 52 The Court has also observed that a district court’s
experience with a consent decree and the passage of time puts that court in a
unique position to observe compliance. 53
_____________________
compliance under Texas—not Louisiana—law. Moreover, it is not binding authority for
this case.
50
La. State Conf. of the NAACP, 490 F. Supp. at 999, aff’d sub nom. Allen, 14 F.4th
at 366; see also United States v. Alcoa, Inc., 533 F.3d 278, 287 (5th Cir. 2008).
51
Hawkins, 540 U.S. at 442.
52
Id.53
Dowell, 490 U.S. at 249.
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Because Rule 60(b)(5)’s first clause is rarely invoked in the context of
consent decree dissolution, our jurisprudence is lacking. 54 The first clause
of Rule 60(b)(5) is “almost never applied to consent decrees” and is typically
reserved for disputes involving the amount of a judgment. 55 “The vast
majority of motions for modification and termination of consent decrees,
especially those involving institutional reform, invoke Rule 60(b)(5)’s third
clause.” 56 Although we have implicitly approved of Dowell and its
applicability to motions to dissolve consent decrees, we have never explicitly
applied it in this context. For example, in City of Boerne and in Janek, we
endorsed a more “flexible standard [such as in Dowell]” for evaluating
motions to modify or dissolve under the first clause of Rule 60(b)(5). 57
Moreover, in Allen, we discussed the applicability of Dowell’s holdings to
consent decree disputes generally. 58
Furthermore, as the district court noted, at least six other circuits have
applied the Dowell standard to motions to dissolve consent decrees under
Rule 60(b)(5). 59 The Sixth and Ninth Circuits have applied Dowell to Rule
_____________________
54
Janek, 780 F.3d at 327.
55
Id.56
Id.57
City of Boerne, 659 F.3d at 43740; Janek, 780 F.3d at 323, 327.
58
14 F.4th at 373.
59
See Johnson, 88 F.3d at 405 n.1; Youngblood, 925 F.2d at 960–62; Jeff D., 643
F.3d at 283; Alexander, 89 F.3d at 199–203; Allen, 164 F.3d at 1350–54; McDonald, 109 F.3d
at 1321–22 ; Rufo II, 12 F.3d at 288, 290, 292–94 n.3.
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60(b)(5)’s first clause specifically. 60 Additionally, in N.L.R.B. v. Harris Teeter
Supermarkets, the D.C. Circuit assessed a motion to dissolve under Rule
60(b)(5)’s first clause, indicating its approval of Dowell. 61 That circuit court
held that “Dowell and Rufo must be read together” and that “while . . . good
faith compliance certainly matters, extended compliance alone does not
compel the modification of a consent decree.” 62 Applying Dowell to the
instant case comports with the same “flexible standard” endorsed by the
U.S. Supreme Court in Horne v. Flores, in which it indicated that the Rufo and
Dowell standards, while employing different factors, are of the “same theme”
and allow district courts flexibility in the administration of institutional
reform consent decrees. 63
The State’s reliance on Janek for the application of the substantial
compliance standard is misplaced. First, Janek interpreted a consent decree
that was governed by Texas contract law—not by Louisiana law. 64 Louisiana
contract law recognizes the concept of substantial performance under Article
2014 of the Louisiana Civil Code, but it is rarely used outside of the context
_____________________
60
See, e.g., Johnson, 88 F.3d at 404, 405 n.1; Jeff D., 643 F.3d at 283.
61
215 F.3d 32, 36 (D.C. Cir. 2000).
62
Id.63
Rufo, 502 U.S. at 380; see also Alexander, 89 F.3d at 199–203; Johnson, 348 F.3d
at 1342-44.
64
Janek, 780 F.3d at 330.
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of construction law. 65 The State has not cited any cases applying Article 2014
to a motion to dissolve a consent decree. Lastly, if the substantial compliance
standard were applied in this case, it would produce absurd results in the
context of the Consent Judgment, which includes action items such as the
implementation of legislation and the creation of a Black opportunity voting
district.
Second, the consent decree in Janek was not an institutional reform
decree; it only aimed to improve Texas’s one-time implementation of a
Medicaid program. 66 That is quite different from the Consent Judgment,
which aims to ensure prospective compliance with the VRA and the U.S.
Constitution. 67 This classification matters. The Supreme Court has held that
institutional reform decrees are treated differently than ordinary consent
decrees “because such decrees ‘reach beyond the parties involved directly in
the suit and impact on the public’s right to the sound and efficient operation
of its institutions.’” 68 As a result, “[d]istrict courts must take a flexible
approach to . . . institutional reform decrees” because “[f]lexibility is ‘often
essential to achieving the goals of reform litigation.’” 69
_____________________
65
See Transier v. Barnes Bldg., LLC, 14-1256 (La. App. 3 Cir. 6/10/15); 166 So. 3d
1249, 1260 (citing La. Civ. Code art. 2769 (2022)).
66
780 F.3d at 330.
67
Id. at 323.
68
Rufo, 502 U.S. at 381 (quoting Heath v. De Courcy, 888 F.2d 1105, 1109 (6th Cir.
1989)).
69
City of Boerne, 659 F.3d at 437 (quoting Rufo, 502 U.S. at 381).
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iii. Applying Dowell to this dispute
The State has not fulfilled Dowell’s good faith compliance prong. As
discussed above, the final remedy contemplated by the Consent Judgment is
prospective compliance with Section 2 of the VRA. The State correctly
asserts that it has complied with the Consent Judgment for the past thirty
years, but Dowell’s good faith inquiry examines both past compliance and
“future prospects.” 70 Although a history of compliance is evidence of good
faith, 71 the court must also be satisfied that “there is relatively little or no
likelihood that the original . . . violation will promptly be repeated when the
decree is lifted.” 72
Here, 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 State’s evidence focuses only on past
compliance with the Consent Judgment. During oral argument on the motion
to dissolve, the district court indicated an openness to amending the Consent
Judgment to include a new redistricting plan that addresses compliance and
assuages the State’s concerns. The court noted that examples of future
compliance may include a roadmap that demonstrates continued compliance
_____________________
70
See Johnson, 88 F.3d at 405 n.1 (emphasis added).
71
Anderson v. Sch. Bd. of Madison Cnty., 517 F.3d 292, 297 (5th Cir. 2008) (applying
Dowell to a motion for declaratory judgment in a case involving a desegregation-related
consent decree); see also Harris Teeter, 215 F.3d at 36 (holding that “compliance over an
extended period of time is not in and of itself sufficient to warrant relief”).
72
Rufo II, 12 F.3d at 292 (citing Dowell, 498 U.S. at 247).
24
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or a redistricting plan. The State responded that it had not presented such a
plan because “[t]o do something more in the Consent Decree would require
a new agreement,” notwithstanding the fact that the Consent Decree
requires “future Supreme Court elections” to “take place in the newly
reapportioned districts.”
The State’s position is thus the antithesis of Dowell’s requirement
that it show “relatively little or no likelihood” of repeat violations once the
Consent Judgment is terminated. 73 The State has refused to provide
evidence, plans, or assurances of future compliance, instead maintaining that
Dowell is inapplicable. The State merely contends that there is no danger of
future VRA violations because the Louisiana legislature’s recent bills 74 for
Louisiana Supreme Court redistricting have all preserved District Seven.
The State even conceded that, in the event the Consent Judgment is
dissolved and the districts were redrawn in a manner that violates the VRA,
a “suit would be filed. Facts would have to be alleged, and the case would go
forward and be tried.” Accordingly, the State has not met the good faith
compliance prong under Dowell, and the inquiry would typically end there.
Even if it had met Dowell’s first prong, the State still fails to meet the
second prong, which asks “whether the vestiges of past discrimination had
been eliminated to the extent practicable.” 75 This inquiry ultimately
_____________________
73
Id.
74
These bills were not introduced into evidence but were instead only mentioned
at oral argument on the motion to dissolve.
75
Id.
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examines whether “the purpose of the consent order has been fulfilled.” 76 In
the context of this case, Dowell required the State and the district court to
consider the existence (or absence) of voter dilution in Louisiana. 77
On appeal, the State maintains that Dowell is inapplicable to this case
and therefore does not address whether the vestiges of past discrimination
have been eliminated to the extent practicable. The State instead contends
that the election of three Black justices from District Seven shows that the
Black voter dilution is no longer a problem. 78 This is insufficient under
Dowell. While the election of a member of the minority group is one factor to
consider, 79 this alone does not demonstrate that the vestiges of past
discrimination have been eliminated to the extent practicable. In City of
Boerne, we similarly held that “information regarding one candidate, who
won as many competitive elections as she lost,” was inadequate to show the
“consent decree had failed to achieve its intended purpose” such that
modification of the decree was warranted to better remedy vote dilution. 80
_____________________
76
Alexander, 89 F.3d at 202; see also McDonald, 109 F.3d at 1321-22 (examining the
“goals and terms” of the consent decree); Johnson, 88 F.3d at 406 (examining the “goal”
of the consent decree).
77
See Sensley v. Albritton, 385 F.3d 541, 595 (5th Cir. 2004); Thornburg v. Gingles,
478 U.S. 30, 36-37 (1986).
78
In support, the State produced the Secretary of State election rolls for Justices
Ortique, Johnson, and Griffin.
79
See City of Boerne, 659 F.3d, 659 F.3d at 439 (quoting 52 U.S.C. § 10301) (“[t]he
extent to which members of a protected class have been elected to office” may be
considered when examining impermissible vote dilution under the VRA).
80
Id.26
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Here, too, the record cannot support a determination that the vestiges of past
discrimination have been eliminated to the extent practicable, of which the
election of Black justices is insufficient evidence.
In summary, the State has not shown that the Consent Judgment has
been “satisfied, released, or discharged” under the first clause of Rule
60(b)(5). Therefore, the district court did not abuse its discretion in denying
the State relief.
B. Whether the State met the requisite evidentiary burden under Rule
60(b)(5)’s third clause
The State’s secondary argument on appeal is that it has met the
requirements of Rule 60(b)(5)’s third clause, which permits dissolution when
the prospective application of a consent decree ceases to be equitable. The
State acknowledges that the U.S. Supreme Court’s two-part test in Rufo
applies and alleges that it was satisfied here because (1) significant changes in
factual or legal circumstances have occurred, and (2) continued enforcement
of the Consent Judgment is detrimental to the public interest. The State
asserts that “[t]hirty years of compliance with the consent judgment,
widespread malapportionment, and Louisiana officials’ concern for
correcting malapportionment are each significant changes in fact or law that
warrant dissolution under the third prong of Rule 60(b)(5).” The State
contends that the Seventh District has shrunk significantly because of
population shifts, giving Seventh District members extra voting power
compared to members of the other six districts. Relying on Horne, the State
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alleges that it has experienced “new policy insights” regarding
malapportionment that require reexamination of the original judgment. 81
The State also asserts that the Consent Judgment’s alleged
stranglehold over the Louisiana legislature is detrimental to the public
interest under Rufo. It contends that continued enforcement of the Consent
Judgment is “offensive to the State’s sovereignty, democratic principles of
republican government, and ‘Our federalism’” because the State must
operate in “the confines of a federal consent decree.” The State asserts that
the Consent Judgment “makes the redistricting process harder than
necessary because it requires input from several unauthorized parties.” This,
according to the State, has effectively hamstrung the Louisiana legislature’s
efforts to address growing malapportionment in Louisiana’s electoral
districts.
The district court applied the two-part Rufo test in its analysis of Rule
60(b)(5)’s third clause. The district court applied the first prong of Rufo to
determine whether the State had shown that a significant change in factual
conditions or the law had taken place. The court reviewed the statistical
analysis of malapportionment presented by the Chisom Plaintiffs and
observed that the allegedly “severe malapportionment” identified by the
State did not constitute a “significant change in circumstances” under Rufo.
The court pointed out that malapportionment in Louisiana’s supreme court
districts had existed long before the current districts were drawn and that no
_____________________
81
See 557 U.S. at 448.
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significant increase or decrease in malapportionment had occurred since the
2010 census. 82 The court further noted that “District Seven in particular has
become less malapportioned, shifting from approximately 32.3%
underpopulation after the 2010 census to approximately 28.4%
underpopulation today.” Thus, the district court concluded that the State
had not shown that malapportionment in Louisiana’s supreme court election
districts constitutes the changed factual or legal conditions necessary to
satisfy step one of Rufo.
Under Rufo, the moving party’s failure to satisfy the first prong ends
the inquiry. 83 Here, however, out of an abundance of caution, the district
court also analyzed the second prong of Rufo. The second prong assesses
whether the moving party’s proposed modification, which in this case is
termination, properly addresses the changed factual or legal circumstances.
The court held that the State had not satisfied Rufo because “termination is
far beyond what would be necessary to address malapportionment in the
Louisiana Supreme Court districts.” The district court observed that
nothing in the Consent Judgment prohibits the State from reapportioning six
of Louisiana’s supreme court districts, and that the State is free to “propose
a modification of District Seven’s boundaries through amendment of the
Consent Judgment, as the parties did in 1999.” The court explained that
_____________________
82
“The Chisom Plaintiffs’ analysis of this data shows the districts were
malapportioned by approximately 18% after the 2000 census, approximately 54.5% after the
2010 census, and approximately 54.4% after the 2020 census.”
83
502 U.S. at 391.
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“modification rather than termination under the third clause of Rule 60(b)(5)
is often a more appropriate remedy to cure hardships caused by changed
circumstances.”
Here, the district court did not abuse its discretion in holding that
dissolution is inappropriate under Rule 60(b)(5)’s third clause. First, the
State did not meet the evidentiary burden associated with Rufo’s first prong,
which requires a showing of changed factual or legal circumstances that
warrant reexamination of a consent decree. 84 The State only makes very
general claims about malapportionment and asserts that “new policy
concerns” have arisen which satisfy Rufo. But the State offers almost no
evidentiary support for this argument.
As noted above, the State attached only eight exhibits to its motion to
dissolve—most of which lend little support for dissolution under Rule
60(b)(5). The only exhibit that addresses malapportionment is a September
2021 presentation given at a Joint Governmental Affairs Committee
Meeting. One slide in the presentation is a snapshot of malapportionment in
Louisiana’s seven supreme court election districts. That slide does not show
that supreme court election district malapportionment is a new, changed
circumstance. The Chisom Plaintiffs, on the other hand, demonstrated that
(1) malapportionment in Louisiana’s supreme court election district is not a
new problem, (2) District Seven has grown less malapportioned over time,
and (3) the remaining election districts have remained consistently
_____________________
84
Rufo, 502 U.S. at 391
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malapportioned since the 2010 census. Accordingly, the State has not met
the evidentiary burden associated with the first prong of Rufo’s test.
Moreover, the State’s argument that continued enforcement of the
Consent Judgment is detrimental to the public interest is unavailing. In Allen,
this court clarified the scope of the Consent Judgment, holding that it applied
only to redistricting matters concerning District Seven. 85 The Consent
Judgment itself allows the State to reapportion the election districts as long
it complies with the Consent Judgment. Moreover, Act 776, which was
incorporated into the Consent Judgment in 2000, explicitly states that “[t]he
legislature may redistrict the supreme court following the year in which the
population of this state is reported to the president of the United States for
each decennial federal census.” 86 These facts significantly weaken the
State’s assertion that the Louisiana Legislature is hamstrung by the Consent
Judgment in redistricting matters. The State has presented no other evidence
to show that continued enforcement of the Consent Judgment is detrimental
to the public interest.
In summary, the State has not demonstrated that applying the
Consent Judgment prospectively is no longer equitable under the third clause
of Rule 60(b)(5). The district court therefore did not abuse its discretion by
denying relief under Rule 60(b)(5)’s third clause.
_____________________
85
14 F.4th at 374.
86
La. Sess. Law Serv. Act 776 (H.B. 581) (1992).
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C. Flexibility and federalism concerns
The State contends that “federalism concerns” require a standard of
review more exacting than abuse of discretion, and the parties dispute what
“flexibility” means in the context of consent decree litigation. The State
contends that federalism concerns compel the district court to “apply[ ] a
flexible standard that seeks to return control to state and local officials as soon
as a violation of federal law has been remedied.” The State asserts that any
more deference to the district court is incompatible with Horne, in which the
Supreme Court noted that federalism concerns are especially elevated when
the decree involves “areas of core state responsibility” and state actors have
taken contrary positions. 87 The State also points to Allen, in which this court
remarked that “federal ‘consent decrees are not intended to operate in
perpetuity’ and that the state does not champion ‘federalism’ by trying to
consign its supreme court elections to perpetual federal supervision.” 88
The Tenth Circuit recently acknowledged the tension between Horne,
Rufo, and Dowell, explaining that “when applying the flexible approach and
evaluating whether a moving party implemented a durable remedy, a district
court must consider the totality of the moving party’s efforts to demonstrate
sustained compliance with federal law.” 89 That court held that there is “not
a single path” to demonstrating future compliance, explaining that
_____________________
87
557 U.S. at 451.
88
14 F.4th at 373 (quoting Guajardo v. Tex. Dep’t of Crim. Just., 363 F.3d 392, 394
(5th Cir. 2004)).
89
Jackson v. Los Lunas Cmty. Program, 880 F.3d 1176, 1203 (10th Cir. 2018).
32
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“[u]ltimately, the district court’s wealth of experience overseeing the
litigation should inform its assessment of whether the Defendants are now in
compliance with federal law, and whether they are committed to remaining
in compliance.” 90 We agree.
Here, “flexibility” does not necessarily mean that the district court
should divest itself of its authority over the Consent Judgment as soon as
federalism concerns are raised. Rather, flexibility can also mean that the court
requires more of the parties to show that dissolution is warranted because of
its extensive experience with the decree. 91 Given its three decades of
experience with the Consent Judgment, the district court is in the best
position to determine whether the totality of the circumstances point toward
dissolution.
As noted above, the federalism concerns set forth by the State are
exaggerated because Allen recently clarified the proper scope of the Consent
Judgment, and because there is little evidence that the Consent Judgment has
significantly restricted the Louisiana legislature’s redistricting efforts. Even
so, the Consent Judgment—at least in its current form—is not designed to
last forever. During oral argument on the motion to dissolve and in its order
and reasons, the district court expressed its openness to modifying the
Consent Judgment to address the concerns of the State. The district court
_____________________
90
Id.91
City of Boerne, 659 F.3d at 437–40 (quoting Rufo, 502 U.S. at 379–80); see also
Jackson, 880 F.3d at 1203.
33
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remarked that “modification rather than termination under the third clause
of Rule 60(b)(5) is often a more appropriate remedy to cure hardships caused
by changed circumstances.”
At this juncture, the State has failed to show that termination—the
most extreme option—is warranted under either the first or third clauses of
Rule 60(b)(5). As the Chisom Plaintiffs pointed out, “determining whether
the Decree has been ‘satisfied’—or even ‘substantially complied’ with—
thus requires some showing that its essential remedial promise . . . will
continue to exist.” The State has not set forth any positive evidence to
demonstrate that “there is relatively little or no likelihood that the original .
. . violation will promptly be repeated when the decree is lifted.” 92
Furthermore, the State has not presented evidence demonstrating that the
vestiges of past discrimination have been eliminated to the extent possible or
that continued enforcement of the Consent Judgment is detrimental to the
public interest. The record is thus inadequate to support dissolution under
Rule 60(b)(5).
The dissent characterizes the majority opinion as an endorsement of
“nearly unchecked judicial authority over fundamentally political activity.”
It is not. Where the plain, unambiguous terms of the consent decree mandate
that “future Supreme Court elections . . . shall take place in the newly
reapportioned districts,” and the State fails to present any evidence
whatsoever of the measures taken to ensure that the object of that mandate
_____________________
92
Rufo II, 12 F.3d at 292 (citing Dowell, 498 U.S. at 247).
34
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will be achieved (or continue to be achieved), it cannot be said that the State
has satisfied its burden under the first clause of Rule 60(b)(5)—regardless of
the chosen standard. 93 The dissent asserts that the State has completed the
eight concrete action items in the Consent Judgment and that any additional
“final remedy” involving prospective relief is too vague to require continued
enforcement. But if the State believes that the requirement of remedying
“some undefined later breach” is too vague, then it should move to modify
the Consent Judgment to create a more defined ultimate remedy. Our job is
to enforce the Consent Judgment as written, not as the State wishes it had
been written. Likewise, when—as here—the State has failed to present an
adequate evidentiary basis for concluding that continued application of the
Consent Judgment would be inequitable, it cannot be said that it has
discharged its burden under the third clause of Rule 60(b)(5). While this
court recognizes the State’s federalism interests, those interests alone do not
relieve the State of its evidentiary burdens.
V. CONCLUSION
The district court did not abuse its discretion in denying the
dissolution motion, as the State has failed to meet its evidentiary burdens
under both the first and third clauses of Rule 60(b)(5). We therefore
_____________________
93
The dissent’s summary of Section C of the Consent Judgment fails to
acknowledge that paragraph 8 expressly requires future Supreme Court elections “to take
place in the newly reapportioned districts.”
35
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AFFIRM the district court’s order denying the State’s motion to dissolve
the Consent Judgment.
36
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Kurt D. Engelhardt, Circuit Judge, dissenting:
Democracy can sometimes challenge the faint-hearted. Although the
enduring constraints of the Constitution and federal laws such as the Voting
Rights Act (“VRA”) provide invaluable guiderails, we can only entrust our
governance to a democratically-elected legislature with the expectation that
it operates within those guiderails. Our nation has made the considered judg-
ment to place power in the hands of the people. Today’s majority decision
rejects both this cherished principle and controlling jurisprudence in favor of
nearly unchecked judicial authority over fundamentally political activity. So,
I respectfully must dissent.
I. Standard of Review and Federalism Concerns
Federal “consent decrees are ‘not intended to operate in
perpetuity.’” Guajardo v. Texas Dep’t of Crim. Just., 363 F.3d 392, 394 (5th
Cir. 2004) (quoting Bd. of Educ. v. Dowell, 498 U.S. 237, 248 (1991)). “The
federal court must exercise its equitable powers to ensure that when the
objects of the decree have been attained, responsibility for discharging the
State’s obligations is returned promptly to the State and its officials.” Frew
ex rel. Frew v. Hawkins, 540 U.S. 431, 442 (2004). “In general, . . .
institutional reform injunctions are disfavored, as they ‘often raise sensitive
federalism concerns.’” M. D. by Stukenberg v. Abbott, 907 F.3d 237, 271 (5th
Cir. 2018) (quoting Horne v. Flores, 557 U.S. 433, 448 (2009)).
Appellees advocate for a heightened standard of deference to the
district court’s decision on the basis of Cooper v. Noble, in which this Court
held that “our deference to the magistrate judge’s exercise of his discretion
37
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is heightened in cases such as the one before us, which involve consent
decrees directed at institutional reform” on the grounds that “[w]e owe
substantial deference to the magistrate judge’s many years of experience with
this matter.” 33 F.3d 540, 543 (5th Cir. 1994). However, Supreme Court
precedent instructs not only that heightened deference is unwarranted in
cases like this but, if anything, that deference should be lessened relative to
an ordinary case. In Horne v. Flores, the Supreme Court critiqued the Ninth
Circuit’s application of a heightened standard: “Rather than applying a
flexible standard that seeks to return control to state and local officials as soon
as a violation of federal law has been remedied, the Court of Appeals used a
heightened standard that paid insufficient attention to federalism concerns.”
557 U.S. at 450–51. 1 The Supreme Court held that institutional reform
consent decrees require a “flexible approach” that “allows courts to ensure
that ‘responsibility for discharging the State’s obligations is returned
promptly to the State and its officials’ when the circumstances warrant.”
Horne, 557 U.S. at 450 (quoting Frew ex rel. Frew, 540 U.S. at 442). Thus, the
Supreme Court held, “a critical question in this Rule 60(b)(5) inquiry is
whether the objective of the . . . order . . . has been achieved. If a durable
remedy has been implemented, continued enforcement of the order is not
only unnecessary, but improper.” Horne, 557 U.S. at 450 (citations omitted).
_____________________
1
Appellees seem to dispute that Horne overruled Cooper but neglect to address this
language, which directly rejects a “heightened standard” such as the one applied in Cooper.
Indeed, the Supreme Court said bluntly that the Ninth Circuit applied “a Rule 60(b)(5)
standard that was too strict.” Horne, 557 U.S. at 452.
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Moreover, Horne raises concerns about the arrangement of power in
consent decrees. “[R]eview of the denial of Rule 60(b)(5) relief should
generally be somewhat closer in the context of institutional injunctions
against states due to federalism concerns.” Id. at 451 (internal quotation
marks and citation omitted). Consent decrees like the Chisom decree “often
raise sensitive federalism concerns” because “[s]uch litigation commonly
involves areas of core state responsibility.” Id. at 448. Like this case, Horne
involved competing positions from different state authorities. 2 “Precisely
because different state actors have taken contrary positions in this litigation,
federalism concerns are elevated.” Id. at 452. The Chisom decree involves
fundamental political elements of Louisiana state governance—elections and
redistricting—that have been conditionally submitted to the discretion of an
unelected federal judge. Undoubtedly, this raises significant federalism
concerns. Thus, a decision to keep the decree in place requires close review.
In sum, in light of Horne’s admonition not to use a heightened
standard, as well as the significant federalism concerns raised by consent
decrees like the one at issue here, I believe that the “heightened deference”
standard of review is inconsistent with Supreme Court precedent.
The majority does not explicitly employ a “heightened” level of
deference to the district court’s decision, but it purports to use Horne’s
_____________________
2
Here, the Governor’s amicus brief is directly opposed to the position of the
appellant, the Attorney General of Louisiana. The Governor recognized that “[t]he
disagreement between the Governor and the Attorney General presents its own set of
federalism concerns.” Amicus Br. at 5.
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“flexible approach” in a manner that is, by all accounts, highly deferential to
the district court’s assessment of the State’s compliance with the Consent
Judgment. The majority asserts that “[g]iven its three decades of experience
with the Consent Judgment, the district court is in the best position to
determine whether the totality of the circumstances point toward
dissolution” and that “the federalism concerns set forth by the State are
exaggerated.” However, under any level of review, and considering the
totality of the circumstances, it is clear that the district court abused its
discretion in denying the State relief from the Consent Judgment.
II. Federal Rule of Civil Procedure 60(b)(5)
The majority holds that the State cannot meet its evidentiary burden
under either the first or third clause of Rule 60(b)(5) allowing for the
dissolution or modification of final judgments. 3 However, even under the
majority’s chosen evidentiary standards, the State has met its burden, and
thus, the district court should have dissolved the Consent Judgment.
As to the first clause, the parties dispute whether a “substantial
compliance” standard or the Dowell standard should apply. The majority
ultimately follows Dowell, joining the Sixth and Ninth Circuits in applying
this standard to cases involving Rule 60(b)(5)’s first clause. The Dowell test
requires proof that (1) the State has complied in “good faith” with the
Consent Judgment since its entry and (2) “the vestiges of past discrimination
_____________________
3
Rule 60(b)(5) states that a court may relieve a party from a final judgment where
“the judgment has been satisfied, released, or discharged” (clause one) or “applying it
prospectively is no longer equitable” (clause three). Fed. R. Civ. P. 60(b)(5).
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[have] been eliminated to the extent practicable.” Dowell, 498 U.S. at 250.
The majority’s detailed analysis of these competing standards is, ultimately,
of no moment here: under either Dowell or the “substantial compliance”
standard, the State clears its evidentiary hurdle.
As to the third clause, all parties agree that the Supreme Court’s two-
prong test in Rufo v. Inmates of Suffolk Cnty. Jail applies. 502 U.S. 367 (1992).
Under this test, the State must show that (1) “a significant change in
circumstances warrants revision of the decree” and (2) “the proposed
modification is suitably tailored to the changed circumstance.” Id. at 383.
The State argues that it satisfied both prongs of Rufo because it demonstrated
that (1) significant changes in both factual and legal circumstances have
occurred and (2) termination of the Consent Judgment best serves the public
interest.
Because the State has shown entitlement to dissolution of the Consent
Judgment under both the first and third clauses of Rule 60(b)(5), I would
reverse the judgment of the district court finding otherwise.
III. The Consent Judgment’s “Final Remedy” 4
The evidentiary burdens discussed above are considered in light of the
terms of the specific Consent Judgment here. The majority recognized as
much, noting that “a clarification of the Consent Judgment’s ‘final remedy’
under Louisiana’s contract law” is necessary to determine the Consent
_____________________
4
Consistent with the vagaries of its discernment of the Consent Judgment’s end,
the majority also refers to this as the “ultimate remedy.”
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Judgment’s “proper scope.” Thus, an analysis of what constitutes the “final
remedy” of the Consent Judgment is a necessary prerequisite to a
determination of the State’s compliance.
Consent decrees, as the majority rightly points out, are interpreted
according to the general principles of contract law. See Frew v. Janek, 780
F.3d 320, 327 (5th Cir. 2015). Under Louisiana law, courts seek the parties’
common intent starting with the contract’s words, which control if they are
clear and lead to no absurdities. See La. Civ. Code arts. 2045, 2046.
“Furthermore, a contract is to be construed as a whole and each provision in
the contract must be interpreted in light of the other provisions.” Baldwin v.
Bd. of Supervisors for Univ. of La. Sys., 2014-0827 (La. 10/15/14), 156 So. 3d
33, 38 (citing La. Civ. Code art. 2050).
In the words of the Consent Judgment, “[t]he Court shall retain
jurisdiction over this case until the complete implementation of the final
remedy has been accomplished”—and, by implication and indisputably, no
later. The undisputed factual history here is set forth in the majority opinion,
and the plain language of the Consent Judgment is clear: the “final remedy”
contemplated therein is the implementation of the action items contained in
Section C of the Consent Judgment. Because the “final remedy” has been
implemented, the State’s Rule 60(b)(5) motion for relief on the grounds that
“the judgment has been satisfied” should have been granted by the district
court. 5
_____________________
5
This Court suggested as much in dicta in Allen v. Louisiana in addressing whether
the Eastern District had exclusive jurisdiction over the election issues contemplated by the
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Here, the purpose or goal of the Consent Judgment, as stated by the
majority and the district court, is to “ensure that the system for electing the
Louisiana Supreme Court is in compliance with Section 2 of the Voting
Rights Act.” However, the “purpose” of the Consent Judgment, by
definition, cannot be its remedy. A “remedy” is the means by which a purpose
is achieved. A remedy cannot be an end. Both the legal definition of a remedy—
that is, “the legal means to recover a right or to prevent or obtain redress for
a wrong,” Booth v. Churner, 532 U.S. 731, 737 (2001) (emphasis added)
(citation omitted) 6—and the plain English definition of a remedy—that is,
“something that corrects or counteracts” 7—demonstrate this plain
principle. As a matter of clear, incontrovertible language, the “final remedy”
of the Consent Judgment cannot be “the State’s continued compliance with
Section 2 of the VRA.” It must instead be a course of action, a means of
redress, or a corrective for the harm (i.e., existing non-compliance with the
_____________________
Chisom decree. 14 F.4th 366, 374 (5th Cir. 2021). Recognizing that Justice Bernette J.
Johnson (a party to this case) had become Chief Justice and later retired, this Court stated:
“In light of those developments, one might think the decree’s final remedy has been
implemented. But Louisiana has evidently never asked the Eastern District to vacate the
decree.” Id.6
Black’s Law Dictionary similarly defines “remedy” as “[t]he means of enforcing
a right or preventing or redressing a wrong.” Remedy, Black’s Law Dictionary (11th ed.
2019).
7
Merriam Webster’s second definition. https://www.merriam-
webster.com/dictionary/remedy. The first definition is “a medicine, application, or
treatment that relieves or cures a disease,” which, though clearly not the intended meaning
here, likewise refers to a means of correction rather than an end in itself.
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VRA at the time the Consent Judgment was entered into) that it seeks to
remediate.
What, then, is the remedy prescribed in the Consent Judgment to
achieve the purpose of the decree? 8 Simple: the Consent Judgment itself
explicitly identifies “remedial” actions and lists them in Section C. The plain
language of the Consent Judgment makes this clear, providing that “the
defendants shall take the following actions”: eight specific and discrete items
designed to remedy the identified wrong in furtherance of the purpose of
compliance with the VRA. 9 The parties agreed these were “remedial”; and
not surprisingly, the final one would be the last to be accomplished.
While the majority states that “some of these action items have already
_____________________
8
Notably, it is unclear whether the district court identified anything as the “final
remedy.”
9
In short, the Consent Judgment required the State to (1) create a new Louisiana
Supreme Court district comprised solely of Orleans Parish and (2) a new Fourth Circuit
Court of Appeal position. Requirement (2) also required the La. Supreme Court to assign
the new Fourth Circuit judge to the Supreme Court. The La. Supreme Court was also (3)
mandated to give that judge the same benefits, emoluments, etc. as any other La. Supreme
Court Justice, including (4) the same equal rights to participate in La. Supreme Court cases.
The Fourth Circuit position was (5) to expire once an election for the district described in
requirement (1) took place, but should the Fourth Circuit position become vacant before
expiration, (6) the Governor was to call an election to fill the position. If (7) a vacancy were
to have opened up in the then-First Supreme Court District prior to January 1, 2000, it was
to be filled by an election in the district described in requirement (1). Finally, the Consent
Judgment required (8) the enactment of legislation in the 1998 regular session of the
Louisiana Legislature providing for reapportionment of the seven Supreme Court electoral
districts in keeping with the VRA and the Consent Judgment. It appears that requirement
(3) was the last outstanding remedial action item (thus, the “final remedy”), and with the
retirement of Chief Justice Johnson, it too has been fulfilled. See Allen, 14 F.4th at 374.
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been fulfilled,” there is no actual dispute that the State has enacted all eight
remedies. 10 And whichever of them was the eighth or final remedy to be fully
implemented should have been the cue for the district court to recognize the
end of its jurisdiction. 11 That the district court held otherwise is an abuse of
discretion. See Frew ex rel. Frew, 540 U.S. at 442 (“The federal court must
exercise its equitable powers to ensure that when the objects of the decree
have been attained, responsibility for discharging the State’s obligations is
returned promptly to the State and its officials.”) (emphasis added).
The majority suggests that limiting the remedy to the State’s
_____________________
10
Appellees conceded, both in briefing and at oral argument, that the State had in
fact completed all eight action items. See, for e.g., Pl.-Appellee’s Br. at 25 (asserting that
the State must “do more than simply accomplish the checklist” contained in the Consent
Judgment) (emphasis added). The district court also admitted as much, stating that “the
State has complied with the terms of the Consent Judgment by enacting Act 512 to create
the temporary Chisom seat and Act 776 to create the current District Seven.” Chisom v.
Edwards, 342 F.R.D. 1, 12 (E.D. La. 2022). After so acknowledging the State’s completion
of its assigned remedial tasks, the district court and appellees pointed generally towards
some “durable ongoing institutional reform” the State needed to implement, above and
beyond the enumerated action items. Pl.-Appellee’s Br. at 29.
11
This is entirely consistent with Judge Morgan’s decision in 2012, in which she
then correctly wrote: “Because . . . the Consent Judgment calls for Justice Johnson’s tenure
. . . to be credited to her for all purposes under Louisiana law, the Court finds that the ‘final
remedy’ in the Consent Judgment has not yet been implemented. By law and by the terms
of the Consent Judgment, this Court expressly retains jurisdiction over this case until that
final remedy is implemented.” Chisom v. Jindal, 890 F. Supp. 2d 696, 711 (E.D. La. 2012).
This requirement is found in Section C, Item 3 of the Consent Judgment. Thus, as of 2012,
the “final remedy” had not yet been fully implemented. But ten years later, Judge
Morgan’s 2022 decision identifies no such remedial action item undone or lacking, nor do
any of the parties to this case, nor does the majority opinion.
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complete compliance with the eight remedial action items “would produce
absurd results in the context of the Consent Judgment.” Instead, the majority
now proposes that the newly-discovered “final remedy” is “the State’s
prospective compliance with Section 2 of the VRA” (emphasis added). But
where the State has fully complied with the remedial action items—and
neither the courts nor the parties can identify a single, concrete step left to be
taken—it is instead absurd to require the State to remedy some undefined
future imaginary breach, policed by a federal judge. See Janek, 780 F.3d at
328 (“The whole point of negotiating and agreeing on a plethora of specific,
highly detailed action plans was to establish a clearly defined roadmap for
attempting to achieve the Decree’s purpose.”); Trahan v. Coca Cola Bottling
Co. United, Inc., 2004-0100 (La. 3/2/05), 894 So. 2d 1096, 1107 (“[A]
compromise extends only to those matters the parties intended to settle and
the scope of the transaction cannot be extended by implication.”). Even the
majority admits that its gain-of-function Consent Judgment needs to end at
some point and that we must “avoid overreading consent decrees.” Yet the
majority does just that, reaching broadly into the future with no feasible end
to judicial control in sight.
The majority also makes much of Dowell’s requirement that “the
vestiges of past discrimination [have] been eliminated to the extent
practicable.” 498 U.S. at 250. But throughout its opinion, the majority fails
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to identify 12 what might constitute “practicable” efforts by the State to
eliminate the alleged discrimination, save the eight remedial actions already
completed. The majority asserts that “the election of a member of the
minority group is one factor to consider” in fulfilling the Dowell standard.
What are the other factors? By failing to explain the limits of the Consent
Judgment’s requirements with any specificity, or when termination will be
warranted, the majority seems to say, “We’ll know it when we feel it.” This
not only shows an unwarranted and extraordinary mistrust of the State and
its duly elected officials, but further perpetuates a scenario in which these
parties will never agree—and, under the majority’s holding, this
disagreement will prevent the Consent Judgment from ever being satisfied.
See Janek, 780 F.3d at 329 (emphasizing that where “Plaintiffs have not
pointed to any discrete endpoint . . ., they may never be satisfied with
Defendants’ . . . efforts”) (emphasis in original). The goal of prospective
compliance with the VRA is unquantifiable and unworkable, and therefore, it
constitutes no “remedy” at all.
IV. The State’s “Good Faith” Compliance
To extend the imposition of the federal judiciary’s hands-on role in
the State’s future compliance with the VRA, the majority and the appellees
assert that the State has failed to show evidence of its “good faith” in
_____________________
12
For that matter, the majority also fails to identify the particular “vestiges” for
which the State will be held responsible.
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complying with the Consent Judgment thus far. 13 When asked at oral
argument what kind of evidence would demonstrate good faith, the appellees
ultimately suggested that the State should have presented new electoral maps
to the federal district judge for approval. But there is no judicial preclearance
requirement 14 for future district maps in the Consent Judgment, and the
State was correct to assume that this was simply unnecessary both under the
terms of its Consent Judgment and under the VRA itself. To require the State
to seek court approval of each subsequent redistricting map now and forever,
when the Consent Judgment contains no such language, would expand and
perpetuate the Consent Judgment in a manner entirely inconsistent with the
parties’ agreement as well as this Court’s precedent. See Guajardo, 363 F.3d
at 394; Janek, 780 F.3d at 328–29 (noting that inserting additional
assessments by the court into a decree “would introduce a new requirement
to which the parties never agreed”); Mots. Hr’g Tr. at 13:24–25 (“To do
something more in the Consent Decree would require a new agreement.”).
Appellees also ignore the plethora of evidence indicating that the State
has indeed followed the Chisom decree in good faith for the past thirty years.
It is undisputed that the State has fully complied with all eight remedial action
_____________________
13
Notably, the Dowell opinion cited by the majority does not articulate any clear
standard or definition as to what may constitute “good faith.” See 498 U.S. at 249–50. Nor
do appellees or the majority define “bad faith” with any clarity, or cite to evidence of such.
14
The only mention of a “preclearance” requirement in the Consent Judgment
appears in Section D (and later referred to in Section I), requiring the State “to seek
preclearance from the Attorney General” for the changes made in compliance with the
Consent Judgment. Undisputedly, the State did so.
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items in the Consent Judgment, and the majority opinion concedes that “a
history of compliance is evidence of good faith.” 15 In fact, even after Justice
Bernette Johnson retired, Justice Piper Griffin was elected in her place,
cementing the presence of a minority member of the Louisiana Supreme
Court for another ten years and evincing the effectiveness of the State’s
fulfillment of the “final remedy.”
To its credit, the State has also articulated specific concerns about
malapportionment and the obstacles that the Consent Judgment imposes to
solving that problem. These arguments are backed by concrete evidence. 16
The malapportionment in the election districts, the State argues, constitutes
a significant change in circumstances that alone warrants dissolution of the
Consent Judgment. Finally, and perhaps most telling, the State has watched
the population of District Seven shrink over time and has seen those voters
_____________________
15
The majority takes issue with the fact that the State’s evidence of good faith
“focuses only on past compliance with the Consent Judgment.” But this follows logically
from the nature of the Consent Judgment—it was a deal, entered into by the parties, and
when the obligations contained therein were fulfilled, the deal was completed. See, for e.g.,
Janek, 780 F.3d at 328 (“In other words, the parties already agreed that substantial
compliance with the roadmap would achieve their common goal.”) (emphasis in original).
The State’s comparison of the Consent Judgment to a resolutory contract is a compelling
one.
16
The district court noted that “the districts were malapportioned by
approximately 18% after the 2000 census, approximately 54.5% after the 2010 census, and
approximately 54.4% after the 2020 census.” Chisom v. Edwards, 342 F.R.D. 1, 15 (E.D. La.
2022).
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thus gain “extra” power compared to those in the other six districts17—yet
despite this disparity, the State made no effort to engage in redistricting to
maintain the minority population’s previous (lesser) voting strength. The
State asked the district court to take judicial notice of the absence of any
proposed legislation to reverse the effects of the Consent Judgment and to
note the clear lack of effort to undermine minority voting power. This is
hardly a “threadbare evidentiary record.” The State has met its Rule
60(b)(5) evidentiary burden, even under the majority’s demanding
standards, through its clear showing of good faith compliance with the
Consent Judgment’s terms.
Further, where is the evidence of bad faith? The majority stresses that
there must be “relatively little or no likelihood that the original…violation
will promptly be repeated when the decree is lifted.” Inmates of Suffolk Cnty.
Jail v. Rufo, 12 F.3d 286, 292 (1st Cir. 1993) (citing Dowell, 498 U.S. at 247).
No evidence has been presented showing a “likelihood” of the State’s future
violation of the VRA, and general conjecture regarding the State’s motives
does not suffice. This Court’s vague suspicions are insufficient to overcome
the clear language of the Consent Judgment and the State’s strong track
record of compliance.
_____________________
17
The State, using U.S. census data, calculated that the majority-minority District
Seven was 28.28% less populated than it should be. Appellant’s Br. at 41. The result of such
population shrinkage is that individuals in that district have much weightier votes—nearly
double the weight of votes in other districts. Id.
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Let us not forget that the Voting Rights Act remains in full force.
Should the State of Louisiana perchance violate the VRA after the Consent
Judgment is dissolved—as the majority, the district court, and the appellees
imagine—the parties will have a well-known remedy. See Jackson v. Los
Lunas Cmty. Program, 880 F.3d 1176, 1204 (10th Cir. 2018) (“If the state
again violates federal law, victims may file a new lawsuit to bring the state
back into compliance.”). The majority views with suspicion the State’s
concession as to its liability under the VRA should a violation occur in the
future, but recognition of the controlling effect of the law is not bad faith—it
is quite the opposite. This also demonstrates a fundamental difficulty with
the position of the majority and the district court: under the theory that the
“final remedy” of the Consent Judgment is merely “prospective compliance
with the VRA,” the Consent Judgment (1) adds nothing to the State’s legal
obligations and (2) represents a potentially endless 18 subordination of the
State’s political power to a single unelected federal judge. The majority and
the district court both expect the State to guarantee future compliance with
the VRA, but, as the Governor’s amicus brief makes clear, “the State” is not
a unified or unitary body that can make straightforward guarantees at will but
is instead a political creature subject to frequent elections, legislative
_____________________
18
“[T]his circuit…does not favor perpetual contracts. As we stated in Besco, ‘the
construction of a contract conferring indefinite duration is to be avoided unless compelled by
the unequivocal language of the contract.’” Delta Servs. & Equip., Inc. v. Ryko Mfg. Co., 908
F.2d 7, 9 (5th Cir. 1990) (emphasis in original) (quoting Besco, Inc. v. Alpha Portland Cement
Co., 619 F.2d 447, 449 (5th Cir. 1980)).
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sessions, and political divisions. But the VRA itself is enduring, and as strong
a prospective relief possible if that political creature violates the law in the
future. See Horne, 557 U.S. at 450 (“If a federal consent decree is not limited
to reasonable and necessary implementations of federal law, it may
improperly deprive future officials of their designated legislative and
executive powers.”) (internal quotation marks and citation omitted).
The Chisom decree is not an injunction, issued by the district court to
enjoin the State from ever violating the law again. Not only would this be an
invalid and overbroad form of injunctive relief, 19 it simply is not what the
Consent Judgment itself says. The Consent Judgment clearly provides that
the court will have jurisdiction “until the complete implementation of the
final remedy has been accomplished.” Every remedial action item agreed to
by all parties and listed in the Consent Judgment has been completely
implemented. The district court therefore should have dissolved the Consent
Judgment upon request of the State.
_____________________
19
Injunctions that require litigants to generally follow the law are consistently held
to be overbroad. See, for e.g., Waite v. Macy, 246 U.S. 606, 609 (1918) (“Courts will not
issue injunctions against administrative officers on the mere apprehension that they will
not do their duty or will not follow the law.”); N.L.R.B. v. Express Pub. Co., 312 U.S. 426,
435 (1941) (“But the mere fact that a court has found that a defendant has committed an
act in violation of a statute does not justify an injunction broadly to obey the statute.”); Int'l
Rectifier Corp. v. IXYS Corp., 383 F.3d 1312, 1316 (Fed. Cir. 2004) (noting that “the
Supreme Court has denounced broad injunctions that merely instruct the enjoined party
not to violate a statute”); Parsons v. Ryan, 754 F.3d 657, 689 n.35 (9th Cir. 2014) (requiring
relief “that is more specific than a bare injunction to follow the law”).
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V. Conclusion
The majority opinion searches diligently for what it calls both the
“final remedy” and “ultimate remedy,” but fails to establish anything more
than an illusory, unquantifiable aspiration that “the vestiges of past
discrimination [be] eliminated to the extent practicable” at some
undetermined time in the future. Although the State of Louisiana entered
into the Consent Judgment in good faith, and by all accounts has performed
each and every task set forth therein, this Court now not only moves the
proverbial goal posts, it places them beyond sight. But the Voting Rights Act
is truly “the law of the land.” It can and will be invoked by anyone aggrieved
by a perceived violation, and enforced by the Court.
Though the people of Louisiana, through their state Constitution,
have placed authority in their elected representatives to draw up lawful and
compliant Supreme Court election districts, they have been deprived of that
governance for over thirty years—again, with no end in sight. Now, the
people of Louisiana can only wait for a day in the future when the federal
judiciary will relinquish its continued usurpation of their Constitution. To
perpetuate this Consent Judgment prospectively, void of any demonstrable
VRA violation, is an unwarranted affront to self-governance. Federalism
demands a different result. Accordingly, I respectfully dissent.
53