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Rubbish court ruling ignores good jurisprudence

If you ever want to see an example of judicial activism that subverts the rule of law, look no further than a recent decision concerning judicial districting in Louisiana.

A few years ago, the local National Association for the Advancement of Colored People’s chapter for Terrebone Parish sued state officials over the at-large districting system for elections in the state’s 32nd Judicial District. Although black population comes in at about two-ninths of the parish’s total, until recently elections had produced only white judges as winners. In this system, candidates run concurrently, choosing one of five slots, but the entire parish electorate votes for each.

Doing the math, that would mean, all things equal, a minority candidate would win one district. But that didn’t happen until 2014, after the suit’s filing. This history the NAACP alleged constituted deliberate discrimination – but not actually by those in the district. Instead, they had to claim the state’s officials conspired to keep black folk down, because the state’s majoritarian institutions and executive branch officials created and administer the current election system.

Note the racist assumptions behind the claim: under this system, a minority has no chance of election because whites won’t vote for a minority candidate because of race. Evidence, some presented at the trial, does suggest that not a lot of crossover voting between blacks and whites occur – but there’s no evidence that racism drives in the main, or even significantly, that kind of voting. Instead, policy differences, as represented by candidate’s decisions to adopt party labels that voters use as a shorthand for issue preferences and general candidate ideology, for the typical voter have far greater influence. Just because most whites don’t vote for black candidates when running against white candidates doesn’t mean they do it to discriminate, nor that the system is rigged against non-whites.

Further, there must exist a conspiracy among state legislators and even the governor to perpetuate a discriminatory regime by refusing to change the districting law. Of course, many reasons explain why they would not interfere with the existing system, including local preference, causing additional costs and disruption to make the change, and belief that the system does not institutionalize discrimination so it needs no fixing. Just because legislative majorities refused to change it doesn’t mean they had it in for blacks.

Finally, judicial elections tend to have the most latitude awarded in districting decisions because judges do not make policy. (Of course courts do in the decisions they make about interpretation of statutes or constitutions, but technically the American system vests that power solely in the hands of the majoritarian branches.) And because courts typically hear cases in the entire district, it’s only appropriate that voters district-wide have a say in election of all. Thus, to detect alleged discrimination in these cases requires much more compelling proof that for elections for legislatures and multiple executives.

But last week in his opinion Judge James Brady, a former head of the state’s Democrats before appointment to the bench, ignored all of that. Essentially, he wrote he agreed with expert opinion for the plaintiffs, rather than that for the defense, even though the evidence presented was quite mixed. Reading through the opinion, it becomes clear that Brady substituted his own personal ideology as a lens by which to interpret the evidence, presenting a string of assertions that, to varying degrees, defy logic, if not facts, sometimes almost laughably.

For a specific example, in dismissing opponents’ argumentation, he noted that “that non-racial factors explain the election outcomes, is not credible because [the expert witness] failed to recognize that race is inextricably intertwined with these non-racial factors, especially the ability to raise money.” I see; American society is irredeemably racist, so even if somebody makes decisions about campaigning – such as who to donate to, volunteer for, vote for – without giving race a second thought, racism is so into our DNA that we can’t shake it? Even though black former Democrat Pres. Barack Obama busted all fundraising records?

Thus, Brady writes ridiculously biased statements such as for blacks “Their loss cannot be explained by non-racial factors like time, money, or people. Additionally, their losses cannot be explained by partisanship as black candidates consistently lose to white candidates of the same party,” clearly discounting the role that perception of general overall political orientations of voters and that which they see in candidates as an explanation. (Plus, the footnotes he uses to make these claims live in the past, coming from roughly a quarter century ago.)

And this is just one example of the shoddy reasoning throughout, perhaps best on display through the gymnastics Brady performs to try to discredit the implications of the election of the black 2014 winner, implying that the candidate did not actually represent black people’s interests because he ran as a Republican. Yet perhaps the single most absurd implication he makes comes from the reelection of a white district judge who appeared in blackface at a party, which he takes to mean an electorate allowing him back into office shows just how racist is the bulk of the district’s voters.

As a more general case of insipidness, Brady gives a legislative history about efforts to change the districting in the legislature. Those passages are chock full of what Brady considers “odd” actions by local officials to discourage district and selection alterations, but nowhere, from what was said in committee or floor debates or even in off-the-record communications, was there any indication of racist motives by legislators who has power over these aspects. He simply imputes that, because his ideology tells him so.

Republican Atty. Gen. Jeff Landry minced no words in criticizing this mess, saying it contradicted much recent jurisprudence, and hopefully he will appeal it. It’s precisely what happens when activist judges insert their own beliefs into the law, rather than adhering to statute and constitutions, by letting bias triumph over fact and logic.

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