Let it never be said that the Pres. Barack Obama
Administration’s Department of Justice won’t go all out for its allies and
fellow travelers, wherever they may be regardless of the issue of controversy.
Nationally, for political gain we’ve seen it for
no valid constitutional reason attempt to prevent efforts at reducing voting fraud
and abjure
from prosecuting those who attempt to intimidate voters. In Louisiana, in
order to intimidate those not considered on its side to help those it considers
friends we’ve seen threats
against those unwilling to increase the possibilities for voter fraud and
now is trying to push around the state’s Supreme Court.
It’s trying to bolster the possibility that black Democrat Associate
Justice Bernette Johnson,
whose surrogates
have claimed contrary efforts denote racist sentiments, will get appointed
as the Court’s chief justice upon the retirement of Chief Justice Kitty Kimball at the end of
the year, by intervening in a suit brought by Johnson in federal court to
prevent Kimball from convening the Court to decide who her successor will be. In
the federal court where the suit rests, DOJ
filed a brief arguing Johnson should inherit this role, whereas Kimball’s
approach would acknowledge the juridical ambiguity involved and have the Court
clarify, which means Johnson may not be eligible to assume the spot at this
time.
Essentially, Johnson began serving on the Court in late 1994, but not
as a member of the Court. This was because of a consent decree the state made in
the early 1990s with the federal government, specifically overseen by the
Eastern District Court of Louisiana, that would allow her position elected as a
state appellate court judge to participate in the decision-making of the state’s
Supreme Court, as a solution to what the state agreed was racially-gerrymandered
judicial districting. She was first elected to the Court only in 2000, after
two other justices presently serving with her.
The problem is the state Constitution does not define specifically who
is most senior in this case, and nor do the state’s Revised Statutes. There is
the uncodified Section 2 of Act 776 in
1997 that does imply that the holder of this position, since it says she
has seniority vested from her time spent with the Court, would be most senior
in this situation. This is pointed out in the brief by DOJ which notes an amendment
signed by all relevant officials in 2000 to the 1992 original agreement was
to include Act 776.
But the further problem is that the original consent decree itself
violated the Louisiana Constitution. Rather than amending the state’s highest
document and waiting to have an election specifically to the Court until after
that, or waiting until after the next round of redistricting, certain state
officials allowed an end-run around the Constitution for reasons of political
expediency (for a fascinating look into the background of this, see here).
If Louisiana was wrong to create districts that had the effect of diluting
minority voting rights even if that was not the intent, committing another
wrong of subverting the Constitution to attempt a kind of correction does not
make for a right. Therefore, anything attendant to an unconstitutional
assertion of power itself is unconstitutional and violates the rule of law.
Thus this situation makes Kimball’s approach reasonable, given all of the
questions involved. However, DOJ inappropriately goes all in with Johnson’s
position by ignoring the unconstitutionality of the state’s previous action.
While there’s nothing legally or constitutionally that requires quality and
non-politicized briefs emanating from DOJ, nor that a court follows what DOJ
wants (although the judge assigned the case is former lobbyist and
brand-spanking-new Obama appointee Susie Morgan), the real political import of
the DOJ’s unusual intervention with a matter that has nothing to do with voting
rights (perhaps justified under the controversial theory of “third
generation” voting rights discrimination) is, if all else fails, sway the
views of the Kimball panel.
So while with this brief DOJ hopes it can prod the federal judiciary
into cutting off free inquiry (with the court somehow having to overcome her
problem of standing since the panel’s convening does not deprive Johnson of
anything; that could happen only after it decides against her view), its larger
goal is to pressure the Kimball panel, made up of other sitting justices plus
some one-off appellate court members, into deciding in favor of Johnson’s
interpretation. By this action, it sends a signal that it will use federal government
taxpayer resources to back Johnson all the way, dragging the state’s highest
court into a protracted and expensive legal fight. Johnson wouldn’t even have
to lift a finger to help herself should she lose – by this act, DOJ indicates
it would sue the Court on some presumed violation of the Voter Rights Act.
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