Terrebonne Parish Branch Naacp v. Jindal (274 F. Supp. 3d 395, 2017)

RULING

JUDGE JAMES J. BRADY, UNITED STATES DISTRICT COURT

This matter is before the Court pursuant. to Section 2 of the Voting Rights Act of 1966 (“Section 2”), 52 U.S.C. § 10301 (previously codified at 42 U.S.C. § 1973), and the Fourteenth and. Fifteenth Amendments to the United States Constitution. A bench trial was held on March 13-20 and April 26-28, 2017. The Court heard from 27 witnesses, and over 350 exhibits were admitted into evidence. - .

I. Brief Overview / Introduction

The individual Plaintiffs in this case are all black registered voters and residents of Terrebonne Parish. Terrebonne Branch NAACP (“Terrebonne NAACP”) is also a Plaintiff in this case. The Defendants in this case are the Governor of Louisiana and the Attorney General of Louisiana, both of whom are sued in their official capacities.'

The Plaintiffs challenge Louisiana’s use of an at-large voting system for the 32nd Judicial District Court (“32nd JDC”), a state court that exercises jurisdiction over Terrebonne Parish (“Terrebonne”). They claim that the use of at-large voting for election to the 32nd JDC effectively affords black minority voters of Terrebonne less opportunity to elect judicial candidates of their choice. Additionally, they claim that a discriminatory purpose has been a motivating factor in the maintenance of at-large voting for the 32nd JDC.

For the reasons explained more fully herein, the Court finds that at-large voting for the 32nd JDC deprives black voters of the equal opportunity to elect candidates of their choice in violation of Section 2, and it has been maintained for that purpose, in violation of Section 2 and the United States Constitution. The Court, having considered all of the testimony, evidence, and arguments presented by the parties, hereby enters the following findings of fact and conclusions of law pursuant to Federal Rule of Civil Procedure 52(a).

II. Jurisdictional Issues

The Defendants, once again, urge this Court to find that' it lacks jhrisdiction to hear this case. First, they claim' that they are entitled to immunity undér the Eleventh Amendment. Second, they argue that the Plaintiffs lack standing to challenge at-large voting for the 32nd JDC. The Court finds these arguments unpersuasive.

First, while Defendants re-urge their argument that sovereign immunity under the Eleventh Amendment deprives the Court •of subject matter jurisdiction, they provide no basis for this Court to depart-from its prior ruling in this case. Accordingly, the Eleventh Amendment does not bar any of Plaintiffs’ claims in this case.

Second, the Court finds that Plaintiffs have standing to bring this .case. To establish Article. Ill standing, a plaintiff must show that he has suffered an injury-in-fact caused by the defendant’s challenged conduct and that a favorable decision will likely redress the plaintiffs injury. The Defendants make three arguments to support dismissal on standing grounds: (1)- there is no evidence of injury because Plaintiffs were able to elect a black individual (Judge Juan Pickett) to the 32nd. JDC and white candidates to other parish-wide offices: (2) the Attorney General and the Governor are neither-, the proper parties as they cannot properly change the election method for the 32nd JDC nor has any evidence been presented that they discriminated against Plaintiffs: and (3) other officials, like the Secretary of State, play a role in the maintenance of the 32nd JDC, which means that causation and redressability, are lacking as to the two Defendants.

The Plaintiffs have stated a cognizable injury. The dilution of an individual’s right to vote is a cognizable injury for Article III standing purposes. Neither Judge Pickett’s election nor those of the white candidates definitively show the absence of vote dilution under at-large voting for the 32nd JDC.

The Attorney General and Governor are proper defendants in this case. Contrary to Defendants’ assertions, they are not “impotent,” and they do play a role in the 32nd JDC elections. Defendants’ argument is at odds with many voting rights cases arising in Louisiana (including some that have reached the United States Supreme Court) in which the Attorney General and the Governor were named as defendants. Furthermore, Louisiana law requires the Attorney General and the Governor to play several important roles with respect to the electoral process for the Judicial District Courts which renders them proper defendants in this case. The Defendants also assert that a claim of discriminatory purpose against them is inappropriate as no evidence has been introduced that the Governor or the Attorney General discriminated against the Plaintiffs. This does not undermine Plaintiffs’ intent claim because the inquiry into intent focuses on the motivations of the legislative body at issue, not of any single official or named defendant.

Finally, the fact that the Secretary of State plays a role in maintaining and overseeing the electoral method of the 32nd JDC does not mean that causation and redressability are absent with respect to Defendants. Accordingly, the Court shall proceed to analyze the merits of this case.

III. Overview of the Law Governing the Court’s Inquiry

The Plaintiffs effectively have two claims in this case. First, they bring a claim under Section 2, which requires them to show that at-large voting for the 32nd JDC has a discriminatory or dilutive effect. Second, they bring a claim under Section 2, the Fourteenth Amendment, and the Fifteenth Amendment, asserting that at-large voting for the 32nd JDC has been maintained for a discriminatory purpose.

A. Section 2 of the Voting Rights Act (Discriminatory Effect)

The Voting Rights Act (“VRA”) was enacted to “give those who had been disenfranchised on account of their race the opportunity to participate in the political process.” “Section 2 proscribes practices that, while permitting a mechanical exercise of the right to vote, operate to cancel out or minimize [i.e. dilute] the voting strength of racial groups such that members of the racial minority have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.” Section 2 is not meant to guarantee electoral success for. minority-preferred candidates, but rather, the goal of Section 2 is to prohibit certain electoral practices or structures that interact with “social and historical conditions to cause an inequality in the opportunities enjoyed by black and white voters to elect their preferred representatives.” In addition to covering elections for many types of executive and legislative positions, Section 2 also applies to judicial elections.

When a plaintiff challenges an at-large voting system, such as the system that exists in this case, “[t]he theoretical basis for this type of impairment is that where minority and majority voters consistently prefer different candidates, the majority, by .virtue of its numerical superiority, will regularly defeat the choices of minority voters.” “[AJt-large ■ election schemes.■■. .are. not per se violative of minority, voters’ rights.” A plaintiff can show that an at-large election scheme violates Section 2 by showing that it has a “discriminatory effect alone.”

A successful Section 2 vote dilution claim has two components. First, a plaintiff must satisfy the three Gingles preconditions by showing: (1) that the minority group is.“sufficiently large and geographically compact to constitute a majority in a single-member district” (“Gingles one”): (2) that the minority group is “politically cohesive” (“Gingles two”): and (3) that bloc voting by other members of the electorate usually defeats black-preferred candidates (“Gingles three”). Satisfaction of these three preconditions is necessary but not sufficient to establish liability.

Second, “[i]f these three preconditions are met, the district court must then examine a variety of other factors to determine whether, under the totality of the circumstances, the challenged practice impairs the ability of the minority voters to participate equally in the political process and to elect a representative of their choice.” “It'will be only the very unusual casé in which the plaintiffs can establish the existence of the three Gingles factors but still have failed to establish a violation of § 2 under the totality of- circumstances;” "

Courts should consider the following non-exhaustive factors in determining whether minority plaintiffs do not possess the same' opportunities to participate- in the political process and elect representatives of their choice enjoyed by other voters:

(1) the history of official voting-related discrimination in the state or political subdivision;

(2) the extent to which voting in the elections of the state or political subdivision is racially, polarized;

(3) the extent to which the state or political subdivision has used voting practices or procedures that may enhance the opportunity for discrimination against the minority group, such as unusually large election districts,’ majority-vote requirements, and prohibitions against bullet voting;

(4) the exclusion of members of the minority group from candidate slating processes;

(5) the extent to which minority group members bear’ the effects of discrimination in areas such as education, employment, and health, which hinder their ability to participate effectively in the political process;

(6) the ■ use of overt or subtle racial appeals in political campaigns;

(7) the extent to which members of the minority group have been elected to public office in the jurisdiction;

(8) whether there is a lack of responsiveness on the part of the elected officials to the particularized needs of minority group members: and

(9) where the policy underlying the state or political- subdivision’s use of the challenged standard, practice, or procedure is tenuous.

Plaintiffs do not need to meet a majority of these factors or evén a set number of these, factors to prove á vote dilution claim. Rather, these factors helpfully guide the court in reaching a conclusion about whether or not a certain electoral scheme dilutes the minority vote. Of these factors, the two most important factors are “the existence of racially polarized voting and the extent to which minorities are elected to public office.”

In addition to examining these factors, a court must keep in mind that the totality of circumstances inquiry is “peculiarly dependent upon the facts of each case.. .and requires an intensely local appraisal of the design and impact of the contested electoral mechanisms.” The court must conduct “a searching practical evaluation of the past and present reality [to determine] whether the political process is equally open to- minority voters.” Due to the fact that “the resolution of a vot[e] dilution claim requires [a] close analysis of unusually, complex factual patterns, and because the decision has the potential for serious interference -with state functions ... district courts [must] explain with particularity their reasoning and the subsidiary factual conclusions underlying their reasoning.”

B. Constitutional and Section 2 Claims (Discriminatory Purpose)

In addition to their discriminatory impact claim, the Plaintiffs also claim that the at-large system in the 32nd JDC has been maintained with a racially discriminatory purpose in violation of Section 2, the Fourteenth Amendment, and the Fifteenth Amendment. To prevail on a vote dilution claim under either the Fourteenth or Fifteenth Amendment, a plaintiff must show that an electoral system has a “discriminatory or dilutive effect and a discriminatory purpose.” At-large districts violate the Constitution if they are “conceived or operated as purposeful devices to further racial discrimination by minimizing, cancelling out or diluting the voting strength of racial elements in the voting population.”

A state violates the Constitution and Section 2 if it maintains an at-large voting system “for the invidious purpose of diluting the voting strength of the black population.” In order to prove that an electoral system is being maintained for discriminatory purposes, a plaintiff only needs to show that “a discriminatory purpose [was] a motivating factor” in the challenged. decision, “Racial discrimination need only be one purpose, and not even a primary purpose, [to establish] a violation of the Fourteenth and Fifteenth Amendments.”

To prove discriminatory intent, a plaintiff may rely upon direct or circumstantial evidence. A plaintiff is not required to bring forward direct evidence because “[i]n this day and age we rarely have legislators announcing an intent to discriminate based upon race.. .To require direct evidence of intent would essentially give legislatures free rein to racially discriminate so long as they do not overtly state discrimination as their purpose and so long as they proffer a seemingly neutral reason for their actions. This approach would ignore the reality that neutral reasons can and do mask racial intent, a fact we have recognized in other contexts that allow for circumstantial evidence.”

In Arlington Heights, the Supreme Court identified five non-exhaustive factors that guide the circumstantial evidence inquiry: (1) the historical background of the challenged decision: (2) the sequence of events leading up to the challenged decision: (3) departures from the normal procedural sequence: (4) substantive departures: and (5) legislative history, especially where there are contemporary statements by decision-makers. Once a plaintiff shows that race was a motivating factor, the “burden [then] shifts to the law’s defenders to demonstrate that the law would have been [maintained] without this factor.”

IV. Findings of Fact and Conclusions of Law

A. Terrebonne: Demographics, Advocacy, Courts, and the Local Government

For nearly 50 years, between 1968 when the 32nd JDC was created and the filing of this lawsuit in February 2014, no black candidate had ever been elected to the 32nd JDC. In fact, no black candidate has ever been elected to any other parish-wide, atJarge elected position in Terrebonne (ie., Parish President, District Attorney, Sherriff, Coroner, Clerk of Court, Tax Assessor, City Marshal, and Houma City Court Judge). For the last twenty years, the Terrebonne NAACP and black voters have advocated for a majority-black sub-district for the 32nd JDC, without success. In 1997, black residents of Terrebonne began advocating for an opportunity sub-district to be created by the Louisiana Legislature. Over the course of the next fifteen years, black residents of Terre-bonne and the Terrebonne NAACP continued to advocate for the subdistrict. Countless bills were introduced, but none passed. The Plaintiffs brought this suit because they felt they had “exhausted all of [their] avenues.”

Terrebonne is located in Southern Louisiana. Houma, with a population of roughly 30,000, is the parish seat, the largest community in Terrebonne, and the only incorporated municipality. The United States Census identifies nine other communities as Census-designated places (“CDPs”) in Terrebonne, including Gray and Schriever which are both located in the north part of the parish. Between 1980 and 2010, the single-race black population of Terrebonne has grown significantly from 14,598 people to 21,139 people. In 1980, this population constituted 15.47% of the total population in Terrebonne, and now it constitutes 18.9% of the total population. By contrast, the non-Hispanic white proportion of the total population fell by more than 10 percentage points. In 1980, 74,811 non-Hispanic whites lived in Terrebonne, and in 2010, 76,789 non-Hispanic whites lived in Terrebonne. While they used to constitute 79.25% of the population in 1980, they now only constitute 68.65% of the population.

Louisiana established the 32nd JDC with territorial jurisdiction over Terre-bonne in 1968. The 32nd JDC was retained under the Louisiana Constitution of 1974. The 32nd JDC has five judges who are elected concurrently and serve non-staggered terms of six years. Since the establishment of the 32nd JDC, all elections have been conducted at-large. For the sole purpose of nominating and electing judges, the 32nd JDC is divided into five divisions (A through E) with one judge elected to each. When a candidate for the 32nd JDC decides to run, he or she must designate one division to run in.

A voter in a primary or general election may vote for only one candidate for each division of the 32nd JDC. Additionally, all qualified voters may vote in the primary and general elections without regard to their party affiliation, and all candidates who qualify for a primary or general election may be voted on without regard to their party affiliation. A candidate for a division of the 32nd JDC who receives a majority of the votes cast in the primary election is elected. If no candidate receives a majority, then the top two finishers move on to the general election. The candidate who receives the most votes cast in the general election is elected to that division. In addition to the 32nd JDC, Terrebonne is also served by the Houma City Court, which has one judge and, like the 32nd JDC, exercises parish-wide jurisdiction.

Since 1997, the Terrebonne NAACP and black Terrebonne voters have advocated for a majority-black subdistrict. This advocacy has spanned six different legislative proposals. The Court discusses this advocacy in much greater detail infra in the discriminatory purpose section, but provides a brief synopsis here.

In 1997, after learning about House Bill (“HB”) 1399, a bill to create a sixth 32nd JDC judgeship elected at-large, Jerome Boykin, the president of the Terrebonne NAACP, traveled to Baton Rouge with a few Terrebonne black attorneys to advocate for a subdistrict. They urged Representative Hunt Downer, who was then Speaker of the Louisiana House of Representatives, to introduce an amendment that would have created the sixth judgeship to be elected from a majority-black subdistrict. After legislative staff attempted to draw the subdistrict, Representative Downer chose to table the bill, noting that such a subdistrict would likely be objected to by the Department of Justice. Representative Downer sent a letter to various individuals, including Jerome Boy-kin:'

[The proposed subdistrict] appears to fly in the face of recent court cases dealing with “gerrymandering” and..-.it would be subject to the “strictness of scrutiny” by the Justice Department and clearly subject to attack.. .[I]t does no one any good to address this matter in any fashion which would encourage a lawsuit (by any party) for then the election would be held up and we would be no closer to resolving the issue and getting a judgeship. Until this matter is resolved among the parties involved, on the local level, the bill will remain on the calendar and not taken up. I do not wish to put the House in a posture where an issue would be divisive, particularly a local matter.

In 1998, Senator John Siracusa introduced Senate Bill (“SB”) 166 which would have created a sixth judgeship to be elected at-large for the 32nd JDC. Jerome Boykin and other black residents of Terre-bonne opposed the bill because instead of creating a subdistrict it would have further perpetuated a system that they thought diluted the black vote. Despite their opposition to the bill, SB 166 passed the Senate, but it did not come up for a vote-in the House.

In April 1999, Senator Michael Robi-chaux, introduced SB 1062 to create a sixth judgeship for the 32nd JDC to be elected from a majority-black subdistrict. In response, in May 1999, one of the sitting 32nd JDC Judges, Judge Timothy Ellender, wrote to the chairman of the Senate Judiciary Committee to which SB 1062 had been referred. He copied all of the other -32nd JDC judges, and urged that the chairman vote against the bill as “[i]t would be a waste of taxpayer’s money •to create a new district where it is not needed.” SB 1062 died in committee.

The fourth piece of legislation for a sub-district was introduced in March 2001-. Senator Butch Gautreaux introduced SB 968 to add a new judge to the 32nd JDC to be elected from a majority-black subdis-trict.. The bill died in committee, and Senator Gautreaux later explained that the committee always goes along with -the Judicial Council. Although the Judicial Council had recommended that the 32nd JDC receive an additional judgeship in 1997, the Council withdrew that recommendation by. 1999 after sitting, judges on the 32nd JDC withdrew their request for an additional judgeship in 1998.

On the same day that Senator Gau-treaux introduced his bill, Representative Carla Dartez introduced a similar bill, HB 1723, in the Louisiana House. Just like SB 968, HB 1723 was introduced to add a new judge to the 32nd JDC to be elected from a'majority-black subdistrict. One of the sitting judges of the 32nd JDC, Judge Edward Gaidry, wrote a letter to Representative Dartez requesting that she withdraw the bill to “avoid unnecessary consumption of time of the Legislature.” He stated that “oúr case load does not justify the creation of an additional judgeship, whether that be at large or through a special district.” HB 1723 died in- committee.

In April 2011, HB 682 was introduced to create a majority-black subdistrict to elect the Division C seat which was to be vacated by Judge Ellender in 2014. This bill was different than the previous bills in that it did not add a sixth-judgeship, but reorganized the method for election for the existing five seats. Specifically, this bill would create two election sections. One judge would be elected from section one which would be a majority-black subdis-trict, and the remaining four judges would be elected at-large from section two. From April 2011 to June 2011, many individuals opposed this bill by sending letters and testifying against it. The House Committee on House and Governmental Affairs approved HB 682 on June 1, 2011 , but, on June 7, 2011, the full House voted against the bill by a vote of 61 to 41 with every black legislator voting for it. A few days after this defeat—another unsuccessful attempt to create a majority-black sub-district for the 32nd JDC—the Terrebonne NAACP began to publicize its intent to file a lawsüit challenging at-large voting for the 32nd JDC. This suit was filed in February 2Ó14.

During the pendency of this lawsuit, in November 2014, Juan Pickett, a first-time judicial candidate who is black, was elected without opposition to an open seat on the 32nd JDC. For the first time in the history of the 32nd JDC, no white attorney competed for a seat on the 32nd JDC.

Over the past twenty years, two members of the 32nd JDC—Judge Paul Wiin-bish and Judge Ellender—have bgen dispi-plined by the Louisiana Supreme Court. Judge Wimbish was disciplined in 1999 for, among other things, failing to decide cases in a timely manner.

Judge Ellender was first disciplined in 2004 after private citizens and his fellow judges of the 32nd JDC filed complaints against him. In October 2003, Judge El-lender and his wife attended a Halloween party at a restaurant in Terrebonne. Judge Ellender was dressed as a prisoner, wearing an orange jumpsuit, handcuffs, a black afro wig, and black makeup on his face, which he decided to apply after his costume did not “generate the laughs [he] had expected.” The Louisiana Supreme Court suspended Judge Ellender for one year and one day without pay, with six months deferred, for this misconduct. The Supreme Court found that while the Judge “did not intend to offer an affront to the African-American community... [nonetheless, his behavior exhibited] his failure to appreciate the effects of his actions on the community as a whole.” Judge Ellender was reelected without opposition in 2008 to a six year term on the 32nd JDC.

While the 32nd JDC continues to remain an at-large system, other Terrebonne bodies are elected from districts. Since the late 1970s, the Terrebonne Parish Council has had a district electoral plan, which includes two majority black-subdistricts. The School Board also has a nine-district electoral plan which includes two majority-black subdistricts. The majority-black subdistricts are identical in both plans. One of those districts encompasses parts of Houma and rural areas to the south of Houma. The other district includes a small portion of Houma and extends north through Bayou Cane and into Gray and Schriever. The Parish Council plan is reproduced below.

Terrebonne Parish Council Plan

Tmebontte Parish Council Districts

B. Discriminatory Effect Claim

a) Gingles One

Based on the Illustrative plan presented by the Plaintiffs, the Court finds that the black population is sufficiently numerous and geographically compact to comprise a majority of the voting age population in one single member district in a five-district plan for the 32nd JDC. Below, the Court discusses (1) the two proposed plans introduced by the Plaintiffs: (2) the parties’ disagreements about numerosity: (3) the parties’ disagreements about whether the black population is compact: (4) whether the Court must undertake an effectiveness inquiry at this stage of the litigation: and (5) whether the Illustrative Plan is a racial gerrymander.

Plaintiffs’ primary Gingles One expert is William S. Cooper. He is qualified to serve as an expert witness in redistricting and demographics. Since 1986, Mr. Cooper has prepared redistricting maps for approximately 700 jurisdictions for Section 2 litigation and other efforts to comply with the VRA.

Defendants called two experts who opined on Gingles One—Mr. Michael Hefner and Dr. Ronald Weber. Mr. Hefner is qualified to serve as an expert witness in demographics and redistricting. Mr. Hefner has served as an expert witness in various school desegregation cases and two other Section 2 cases. Dr. Weber has testified in approximately 60 cases as an expert witness on political science and demographic issues.

(1) The Proposed Plans

Satisfying the Gingles One preconditions—numerosity and compactness—“requires submitting as evidence hypothetical redistricting schemes in the form of illustrative plans.” In proving Gingles One, Plaintiffs’ expert, Mr. Cooper, developed two plans—the Illustrative Plan and the Alternative Plan. At trial, and in their post-trial briefs, the Plaintiffs make clear that the Illustrative Plan is the primary demonstrative plan they submit to prove Gingles One. The Alternative Plan was introduced by the Plaintiffs to demonstrate that it was possible to create a plan out of whole precincts that existed during the November 2014 election. Accordingly, the Court focuses most of its discussion on the Illustrative Plan, and only addresses the Alternative Plan in the precinct section.

Consistent with his standard practice working on local-level redistricting plans, Mr. Cooper developed the Illustrative Plan at the census block level, which is the smallest geographic tabulation area from the decennial Census. A census block may be as small as a regular city block or as large as several square miles: it is usually bounded on all sides by visible features such as roads or rivers. The Illustrative Plan divides Terrebonne into five districts for the 32nd JDC. District 1 is the majority-black subdistrict.

Plaintiffs' Ilhistvath i' plan

(2) Numerosity

Mr. Cooper, Mr. Hefner, and Dr. Weber all agreed that the black population in Terrebonne is sufficiently numerous such that District 1 has a greater than 50% voting-age black population. While they agreed that the black voting age population is over 50% in District 1, they disagreed about the extent to which the black voting population rises above that threshold. Their disagreement stems from the fact that they all have different understandings of who should count as “black” for purposes of Gingles One.

The Census provides several different categories of race, three of which are relevant here: (1) non-Hispanic single-race black, which is the narrowest category of black: (2) non-Hispanic Department of Justice (“DOJ”) black, which counts as black those who identify as black alone or as black and white: and (3) Any-Part black, which counts as black any person who self-identifies as black alone or black in combination with any other race or ethnicity, including those who self-identify as Hispanic, In other words, Any-Part black and non-Hispanic DOJ black differ in that Any-Part black includes black Hispanics and multiracial individuals that are part black.

Mr. Cooper testified that District 1 has an Any-Part black voting age population of 50.81% based on the 2010 Census and a non-Hispanic black citizen voting age population of 53.33% based on the 2010-2014 American Community Survey (“ACS”) estimates. While Mr. Hefner does not dispute that the black population in Terre-bonne is sufficiently numerous, to evaluate numerosity, he used the non-Hispanic DOJ black category rather than the Any-Part black category, which led him to conclude that the black population of District 1 is 50.22%.

The parties appear to have two disputes regarding numerosity—whether it is proper to use the Any-Part category and whether it is proper to use ACS data. The Defendants assert that Mr. Cooper is using Any-Part black and ACS estimates (rather than decennial Census data), to attempt to arrive at a more favorable percentage for the Plaintiffs, that is, one that is a few percentage points above the necessary 50%, rather than right at the edge of 50%. While this may be the case, it is undisputed that, based on the 2010 Census data, the Plaintiffs have met the numerosity element of Gingles One. Therefore, the Court finds that the voting-age black population (as defined by the non-Hispanic DOJ black category and the Any-Part black category) in District 1 is greater than 50%. Accordingly, the Court is not required to address whether the proper percentage is 50.22%, 50.81%, or 53.33%, because under any reading of the Census data, the nu-merosity requirement is satisfied.

(3) Compactness of the Black Population in Terrebonne

To satisfy the compactness requirement, a plaintiff must show that the minority community is geographically concentrated. “The first Gingles condition refers to the compactness of the minority population, not to the compactness of the contested district.” “The compactness requirement is necessary to show that the challenged electoral practice, rather than the dispersion of the minority community, prevents the affected minority group from electing the candidates of their choice.. .A district is sufficiently compact if it allows for representation. A district would not be sufficiently compact if it was so convoluted that there was no sense of community, that is, if its members and its representative could not easily tell who actually lived in the district.”

While there is no bright-line rule governing a Section 2 compactness determination, a court should take into account the shape of the proposed majority subdistrict, and it should also determine the degree to which the proposed district complies with “traditional districting principles such as maintaining communities of interest and traditional boundaries.” In making a compactness determination, the Court is mindful that “districting is hardly a science” and that there will often be “more than one way to draw a district so that it can reasonably be described as meaningfully adhering to traditional principles.” For the reasons explained below, the Court finds that the black population in Terrebonne is compact.

(a) Shape

The shape of a proposed district is not significant for its own sake. Rather, it is important because it serves values relating to representation. “[G]eo-graphical compactness serves independent values: it facilitates political organization, electoral campaigning, and constituent representation.” There are many methods a court can use to assess the shape of a district. One recognized, although crude, measure is the “eyeball” test—a court can simply “examine the physical boundaries of the maps and the proposed districts and, based on that visual examination, determine if the district is strangely shaped.” Gingles One does not require that a “proposed district must meet, or attempt to achieve, some aesthetic absolute, such as symmetry or attractiveness. An aesthetic norm.. .would be an unworkable concept.” Another, more objective, way to measure physical compactness is to use mathematical compactness scores, such as the Reock score or the Polsby-Popper score.

The Court finds that the districts, including District 1, in the Illustrative Plan are geographically compact and regular in shape, based primarily on the testimony of Mr. Cooper. In terms of a visual examination, Mr. Cooper testified that a visual comparison of Illustrative District 1 to other electoral districts in Louisiana, such as State House Districts 51 and 52 (which are both partially located in Terrebonne), Congressional Districts 2 and 6, Judicial Sub-district E for the 23rd JDC, as well as the Parish Council districts in West Feliciana and St. Martin parishes, confirms that the shape and geographical compactness of District 1 falls into the norm.

Both Mr. Hefner and Dr. Weber testified that the general shape of District 1 was unusual. However, the Court disagrees, with their visual observations, because they failed to provide any objective benchmarks for their visual assessments. Mr. Hefner testified that District 1 is “unusual and irregular.” Dr. Weber opined that the shape of District 1 is “odd.” Both Dr. Weber and Mr. Hefner concluded that the shape was odd (in their initial reports) without comparing District 1 to any other electoral districts in Louisiana. The Court finds that the “C” shape of District 1 is not odd or unusual when compared to other electoral districts in Louisiana, such as Louisiana House District 51 which also has a “C” shape and, like District 1, extends from the south in Houma to the west and then curves back north to Schriever.

Terrebonne Parish Sections of House Districts 51 and 52

Both Dr. Weber and Mr. Hefner took issue with the fact that Illustrative District 1 runs from Schriever and Gray in the north to the western part of Terrebonne before entering Houma in the .south. However, the evidence shows that it is not odd to include Houma, the western part of Terrebonne, and the Schriever area in one electoral district. In.fact, Dr, Weber admitted that parts of House District 51, and Districts 2 of both the Terrebonne Parish Council and the School Board extend from Houma in the south to Gray and Schriever in the north. Additionally, Senate District 21 also combines parts of Houma with Gray and Schriever.

Mr. Cooper also testified that District 1 is compact based on both the Reock and Polsby-Popper scores. No single statistical measure of compactness is disposi-tive. Quantitative scores are helpful as measures of comparison, but there is no predetermined level a district must meet to be considered compact.

The Court finds that Illustrative District 1 has a Reock score of .39 and a Polsby-Popper score of .13. In terms of its Reock-score, it compares favorably to the mean Reock scores of current State House districts (.38) and current Louisiana Congressional districts (.36). Additionally, while a Polsby-Popper score of .13 is a little bit low from an absolute perspective, this score compares favorably with the mean Polsby-Popper scores of current State House districts (.26) and current Louisiana Congressional districts (.15). District l’s scores show that it is compact when compared to other electoral districts in Louisiana.

Mr. Hefner and Dr. Weber did not dispute the scores calculated by Mr. Cooper but they both criticized the scores on the grounds that they are low as an absolute matter, and that it is inappropriate to compare Illustrative District 1 to other electoral districts in Louisiana which were drawn when Louisiana still needed to seek pre-clearance from the DOJ. Prior to the 2013 Shelby County decision, no change in voting procedures could take effect in Louisiana until federal authorities approved (i.e. precleared) new voting plans to confirm that the new plans had neither the purpose nor the effect of diluting minority voting strength. After Shelby County, changes to voting procedures in Louisiana and its subdivisions do not have to be precleared;

Mr. Hefner opined that comparing Illustrative District' 1 to those pr e-Shelby districts was essentially comparing apples to oranges because the pre-Shelby districts necessarily were less compact because they had to avoid retrogression of the existing minority voting strength. Mr, Hefner testified that pr e-Shelby drawers were constrained by the retrogression concerns while Mr. Cooper was not constrained by 'these same concerns when drawing his Illustrative Plan. Dr. Weber expressed the same opinion in his reports.

The Court finds that these pr e-Shelby districts are adequate comparators because both before and after Shelby County, a. plan drawer must adhere to traditional redistricting principles such as geographical compactness and non-dilution of minority voting strength. Accordingly, the Court finds that it is appropriate to compare these pr e-Shelby districts to District 1 in assessing whether District 1' is compact.

Relatedly, Defendants’ experts testified that Terrebonne’s population is diversifying and that black residents are too spread out to create a majority-black single member district. Notwithstanding this argument, the Court finds that the black population in District 1 is sufficiently concentrated to constitute a single member district in the five member plan because, as explained above, District 1 compares favorably both in terms of its shape and its geographical compactness to other surrounding electoral districts.

(b)Contiguity

Contiguity as a traditional redistricting principle does not mean that the concentrations of black voters in the proposed district must be contiguous. Rather, it means that the illustrative district itself must be contiguous—it simply has to be connected in one piece. All of the Gingles One experts agreed that District 1 is contiguous. Accordingly, the Court finds that District 1 is in compliance with this principle.

(c)Population Equality

Judicial districts, as opposed to legislative districts, are not required, to comply with the principle of one person, one vote as a matter of constitutional law. However, population equality is an equitable consideration: “A subdistrict which allows a much smaller number of people to elect one or more judges whose jurisdiction extends throughout the judicial district, including those who reside in the district but cannot vote for or against that judge or judges, raises rather perplexing questions... [E]quity demands that all such subdistricts—for whatever purpose created—must contain substantially equal populations.” The Supreme Court’s “decisions have established, as a general matter, that an apportionment plan with a maximum population deviation under 10%” is consistent with the principle of one person, one vote. The Illustrative Plan has an overall deviation from population equality of 5.2% and complies with the one person, one vote principle. Both Mr. Hefner and Dr. Weber agreed that the Illustrative Plan complies with this principle. The Court finds that the Plan respects the one person, one vote requirement.

(d)Communities of Interest

In assessing whether a district complies with traditional districting principles, a court should also determine whether the hypothetical district respects “communities defined by actual shared interests.” If race is the only “common thread” that binds certain areas together, the district cannot be said to respect communities of interest. However, a district that has a particular racial makeup can still satisfy this principle as long as the individuals inside that district share “some common thread of relevant interests.”

The Court finds that the Illustrative Plan respects communities of interest for three main reasons. First, the testimony at trial, especially from the Plaintiffs themselves, showed that the areas that constitute District 1 share a common bond. Second, the residents share common socioeconomic characteristics. Third, other electoral districts combine parts of Houma, Gray, and Schriever which demonstrates that these areas form a unified community.

Black residents in Houma, Gray, and Schriever interact with each other frequently through the use of shared spaces. Residents from Houma, Gray, and Schriever (1) share places of worship, libraries, and recreation; (2) belong to the same civic organizations such as the NAACP and the Southern Christian Leadership Conference; (3) shop together; and (4) have access to the same television channels and newspapers. Moreover, black residents in Gray and Schriever consider themselves to be part of the Terre-bonne community.

Additionally, black residents in Illustrative District 1 share similar socioeconomic characteristics as compared to non-Hispanic whites in those same areas. For example, black residents in Houma, Gray, and Schriever (1) live below poverty at a rate at least three times that of non-Hispanic white residents, (2) have an average per capita income that is no more than two-thirds of their non-Hispanic white peers, and (3) rely on food stamps at a rate that is at least double that of non-Hispanic white residents.

Current electoral districts (Parish Council District 2, School Board District 2, House District 51, State Senate District 21), which combine parts of Houma, Gray, and Schriever, also demonstrate that these three areas share common bonds. In fact, District 1 is very similar to Parish Council and School Board Districts 1 and 2. Approximately 84% of the total population (18,239) currently residing in Parish Council and School Board Districts 1 and 2 reside in Illustrative District 1, and approximately 94% of the black population (11,718) in those Parish Districts reside in Illustrative District l. This shows that Houma, Gray, and Schriever share similar interests, at least enough of a bond that local authorities thought it appropriate to combine them together.

Mr. Hefner opined that the Illustrative Plan does not maintain communities of interest because it is inappropriate to combine Houma, Gray, and Schriever. As support for his opinion, he pointed to various districts that separate Gray and Schriever, on the one hand, from Houma, on the other. While there may be some districts that separate these areas, there are numerous districts that combine them, which is evidence that they form a singular community.

Based on the foregoing facts, the Court finds that the Illustrative Plan maintains communities of interest.

(e) Precinct Splits

In making a compactness determination, a court should also undertake to determine whether an illustrative -plan respects political subdivisions. “[W]hile respect for existing political boundaries is also a valued traditional districting method. . .election -precincts are not such important.-political boundaries that they should negate a districting proposal, particularly where... other key districting principles are obeyed.” For example, a district drawer may sometimes split a precinct to ensure that a district is - more compact and looks more normal.

The Court finds that the Illustrative’ Plan adequately minimizes precinct splits. The Illustrative Plan split 12 of the 86 precincts that were in place for the November 2014 elections in Terrebonne: 11 of those splits occurred in District l. The Defendants assert that this is,an excessive number of splits which should cause the Court to find that the Illustrative Plan does not comply with traditional districting principles. The . Court disagrees as the number of precincts in Terrebonne has changed quite a bit in the last 20 years. Accordingly, these boundaries, while they should be adhered to if possible, are not set in stone. Moreover, it appears to the' Court that many of these precincts were split to make the shape of District 1 more regular. Furthermore, the Court finds that these split precincts can be adequately accommodated by using lockouts , which1 are inexpensive and easily administered.

Because the court finds that the Illustrative Plan adequately minimizes precinct splits,-it need not review the Alternative Plan, a plan which Mr. Cooper introduced to show that a majority-black subdistrict could be drawn using the whole precincts that were' in place for the November 2014 election.

(f) Incumbent Protection

Incumbent protection is another traditional districting principle. Louisi: ana law “does not require a candidate for a division of a district court to be domiciled within -the precinct boundaries or any other geographic boundaries of, that division.”

The five current 32nd'JDC judges live close to one another, and'some of them live in the same Illustrative Districts. Two of those judges are required to retire in 2020 because of age restrictions. Due to the fact there is no requirement that an incumbent needs to run in the subdistrict in which he or she resides, the'Illustrative Plan does not violate this principle. In other words, this Illustrative Plan will not require current incumbents to run against each other. Neither Mr. Hefner nor Dr. Weber dispute that the Illustrative Plan complies with this principle. Accordingly, the Court finds that the Illustrative Plan protects incumbent judges.

(g) Preserving Minority Voting Strength

A plan drawer is allowed to “subrogate one or more of the traditional redistricting criteria in order to maintain minority voting strength.”

Defendants assert that' District 1 will effectively disenfranchise black voters who live outside of District 1. Mr. Hefner testified that if the proposed Illustrative Plan were to go into effect the remainder of the Parish outside of District 1 would only have a 9.8% black population, and this small group would have “absolutely no voice in the election of their judges.” Mr. Hefner explained that with the current at-large system, any candidate must at least appeal to the minority population because minorities represent a core that can swing an election, whereas if the sub-district gets created, it is possible that the minority community outside of District 1 may not get any consideration.

The Court finds Defendants’ argument unpersuasive insofar as Defendants are using it in an attempt to argue that the Illustrative Plan does not preserve minority voting strength. As the Fifth Circuit has stated, “[w]henever .a majority-black district is created to remedy a Section 2 violation, the number of black voters in the other districts must necessarily be reduced. Indeed, without this phenomenon, no majority-black districts would ever be created.” Accordingly, “[the] suggestion that the formation of plaintiffs’ proposed district would dilute the voting strength of black citizens in the remaining districts does not support [the] conclusion that the black population.. .is not sufficiently geographically compact” for purposes of Gin-gles One.

(h) Overall Conclusion on Compactness

For all of the reasons stated above, the Court finds the black population in District 1 is sufficiently concentrated and compact, and the District itself adheres to traditional districting principles.

(Jp) Effectiveness

While Mr. Hefner agreed that the black population is sufficiently numerous to constitute a single member district because the black population constitutes over 50% of the voting age population of District 1, he testified that it will be very difficult to create an effective remedy in this case. Essentially, he opined that the Plaintiffs are going to great lengths just to get over the 50% threshold (by excessively splitting precincts, utilizing more favorable racial categories, and working at the block level), and that by barely getting over this threshold, it is evident that any remedy ordered by the Court in this case will be ineffective. Mr. Hefner testified that in the cases that he has worked on, a majority-minority district will not be effective unless the black population is at least 56% of the voting age population of the proposed district.

At the Gingles One stage, the Supreme Court “requires only a simple majority of eligible voters in the single-member district. The court may consider, at the remedial stage, what type of remedy is possible.. .But this difficulty should not impede the judge at the liability stage of the proceedings.”

(5) Racial Gerrymander

Mr. Hefner and Dr. Weber contend that the Illustrative Plan is a racial gerrymander which is demonstrated by (1) Mr. Cooper’s choice to work at the census block level, (2) the “odd” shape of District 1, (3) the inclusion of parts of Houma, Gray, and Schriever into District 1, and (4) the excessive splitting of precincts. Mr. Hefner and Dr. Weber’s concerns about whether the plan is a racial gerrymander raise fundamental issues about the proper balance to be struck between the mandate of Section 2 and the equally strict commands of the Equal Protection Clause.

The Court finds that Defendants’ argument—that the Plaintiffs cannot satisfy Gingles One because the Illustrative District is a racial gerrymander—is meritless for two main reasons. First, the Court need not undertake an equal protection analysis. Second, even if this analysis were required, the Court finds that the plan is not invalid under the Equal Protection Clause. Accordingly, this racial gerrymander argument does not defeat Plaintiffs’ vote dilution case.

First, various courts, including the Fifth Circuit, have held that Section 2 plaintiffs in vote dilution cases are not required to show that their proposed plans comply with Miller v. Johnson to satisfy Gin- gles One. This is the case because Miller and Gingles present analytically distinct legal issues. In Miller the “ultimate question [was] whether race was the predominant factor motivating the drawing-of particular district lines.” In that case, the “Supreme Court confronted the constitutionality of Georgia’s Eleventh Congressional District, one of three majority-minority districts in the State... [that was] [d]rawn in response to the Justice Department’s refusal to preclear earlier reapportionment plans pursuant to Section 5 of the 1965 Voting Rights Act.”

In contrast to “Miller’s focus on motivation.. .the first Gingles factor is an inquiry into causation that necessarily classifies voters by their race.” In undertaking a “causation” inquiry, a court is tasked with determining whether it is the current at-large system and not, for example, geographic dispersal that is the cause of the black populations’ disproportionately weak political strength. If a plaintiff can show that the minority population has the potential to elect a representative of its choice in some single-member district which adheres to traditional redistricting principles, then the plaintiff has necessarily- shown that the current; at-large system is the cause of the minority population’s political weakness. Accordingly, the Court need not undertake a Miller equal protection inquiry with regards to the Illustrative District, which is only being presented as an example to prove that a solution is possible, not that it is necessarily the final plan.

However, even if the Court were to apply Miller and its progeny, the Court finds that the Illustrative Plan is nqt a racial gerrymander. While Mr. Cooper surely considered race as a factor in drawing the district, the Court finds that race was not the predominant factor in the creation of the Plan. Mr. Cooper testified that while race was a consideration—as it always is in any vote-dilution case—it was not the predominant or sole consideration. The Court finds this testimony credible.

In contrast, Mr. Hefner and Dr. Weber both opined, that race was the primary factor that Mr. Cooper used in creating the Illustrative Plan. These experts asserted that this is demonstrated by (1) Mr. Cooper’s choice to work' at the census block level; (2) the “odd” shape of District 1, (3) the inclusion of parts of Houma, Gray, and Schriever into District 1, and (4) the splitting of precincts even in Gray and Schriever. However,' the Court does hot find these opinions credible.

First, it is not inappropriate for a demographer to work at the census block level to develop an electoral plan. Mr. Cooper testified that it is his normal practice to use census-blocks to develop local, as opposed to state-level, plans. Additionally, Mr. Hefner conceded that he also used census blocks in his own work. As evidence that Mr. Cooper was “cherry-picking” census blocks to maximize the black population in District 1, Mr. Hefner presented Defendants’ Exhibit 11.17. This map shows Illustrative District 1 overlaid on top of the census blocks that have majority black populations. While this map shows that Mr. Cooper surely considered race in drawing his district, it does not show that.he used race as. the sole factor. He did not include every conceivable census block that had a majority black population in Illustrative District 1. For example, he left out certain black majority census blocks in the northwest part of the parish, in Schriever, and in Houma, presumably to - comply with other important principles such as population equality and shape regularity. Additionally, as Mr.Cooper explained, he included a majority-white area in District 1 to make District 1 “more regularly shaped,”

Second, as discussed above, the shap'e of District 1 is not odd. It has a compactness score that falls within the norm when compared to nearby districts and it has a crescent shape that is similar to those same districts, like State House District 51, which has a crescent shape inside Ter-rebonne. Moreover, in regards to whether this crescent shape is evidence of a racial gerrymander, District 1 is much more normal looking than the districts found invalid under the Equal Protection Clause for using race as the predominant factor

Third, as previously discussed, it is not odd to include parts of Houma with Gray and Schriever as they constitute a unified coinmunity. Combining these areas does not servé as proof that race served as the predominant criterion in drawing the plan.

Finally, the existence of precinct splits, even those splits in Gray and Schriever, does not demonstrate that race predominated in the drawing of the plan. Many of these precincts were split to address various principles like population equality and geographical compactness as explained above.

Even assuming this Plan were a racial gerrymander, that does not mean that Pláintiffs’ vote dilution claim would necessarily fail. A plan is subject to strict scrutiny when it is shown that race was the predominant factor motivating the creation of a plan. To' satisfy strict scrutiny, the defender of the plan, usually the state, must demonstrate that its districting decision is narrowly tailored to achieve a compelling government purpose. The Fifth Circuit has recognized that “compliance with Section 2 of the Voting Rights Act constitutes a compelling governmental interest.”

As described m/ra, there is clearly a Section 2 violation in this case. Nevertheless, even if the Illustrative Plan were a racial gerrymander, it would survive strict scrutiny because the plan is narrowly tailored to remedy that wrong. In other words, the Court finds that the plan does not use “race substantially more than is reasonably necessary” to remedy the Section 2 violation, The Defendants have not offered any argument in opposition to the claim that the plan is narrowly tailored to remedy the vote dilution.

(6) Overall Gingles One Conclusion

The Court finds that the Plaintiffs have satisfied the first Gingles precondition. The black population in Illustrative. District 1 is sufficiently numerous and geographically compact to constitute a single-member district in a five district plan for the 32nd JDC. The Court concludes that the Plan is not a racial gerrymander, but, even it were, it would survive strict scrutiny because it is narrowly tailored to remedy a significant Section 2 violation,

b) Gingles Two and Three

In order to make out a vote dilution claim, a plaintiff must also show that the minority group is politically cohesive (Gingles Two) and that the majority group usually votes-as a bloc to defeat the minority-preferred candidate (Gingles Three). In order to prove Gingles Two, a plaintiff must show that “a significant number of minority group members usually vote for the same candidates.” In order to prove Gingles Three and show that there is legally significant white bloc voting, a plaintiff must show that whites vote in such a way that they will “normally. . .defeat the combined strength of minority support plus white ‘crossover’ votes.” By proving these two preconditions, a plaintiff shows that elections in a given area are characterized by racially polarized voting (“RPV”).

In presenting statistical evidence that these two preconditions are met, a presumption is created in favor of the plaintiff that “racial bias [is] operating in the electoral system.” In other words, a plaintiff does not need to bring forward “conclusive proof that a minority group’s failure to elect representatives of its choice is caused by racial animus.” By introducing sufficient statistical evidence of RPV, the plaintiff effectively shows that race played a role at the polls. Once this showing is made, the burden then shifts to a defendant to show that race did not play a role in these elections and that other race-neutral factors explain the voting outcomes.

A few other points of law are relevant to the Court’s RPV discussion in this case. First, endogenous elections are elections for the office at issue, here the 32nd JDC, while exogenous • elections are elections held for other offices. Although exogenous elections tend to be less probative of RPV than endogenous elections, they may not be excluded from the analysis completely, especially where there are very few relevant endogenous elections. Second, the Fifth Circuit has explicitly rejected the argument that “plaintiffs may never make out a vote dilution claim where there is no evidence from ‘[endogenous]’ elections.” “[Plaintiffs may not be denied relief simply because the absence of black candidates has created a sparsity of data on [RPV] in purely [endogenous] elections. . .To hold otherwise would allow voting rights cases to be defeated at the outset by the very barriers to political participation that Congress sought to remove.” Third, the Fifth Circuit has consistently held that biracial elections are the most probative of whether RPV is occurring. Fourth, while surely “a pattern of [RPV] that extends over a period of time is more probative.. .than are the results of a single election,” there is no minimum number of elections that must be analyzed. Fifth, in order to find RPV, a court need not find that bloc voting is “absolute.”A plaintiff proves RPV where he shows that whites vote sufficiently as a bloc to “usually” defeat the minority population’s preferred candidate.

With these points of law in mind, the Court turns to the evidence presented on RPV. Two experts opined on whether RPV is occurring in Terrebonne—Dr. Richard Engstrom for the Plaintiffs and the previously discussed Dr. Weber for the Defendants. For the most part, they had nearly identical statistical findings, although they disagreed about the conclusions to draw from those findings. Two experts testified for the Defendants on the issue of whether factors other than race explain the electoral defeat of various black candidates—Ms. Angele Romig and Mr. Michael Bey-chock. Dr. Lichtman, an expert in political history, political analys