IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 19-30665

VINCENT FUSILIER, SR., Reverend; LIONEL MYERS;

WENDELL DESMOND SHELBY, JR.; DANIEL TURNER, JR.;

TERREBONNE PARISH BRANCH NAACP,

Plaintiffs - Appellees

v.

JEFFREY MARTIN LANDRY, Esq., 

Attorney General for the State of Louisiana, in his official capacity,

Defendant - Appellant

Appeal from the United States District Court 

for the Middle District of Louisiana

Before HIGGINBOTHAM, JONES, and DUNCAN, Circuit Judges.

EDITH H. JONES, Circuit Judge:

African-American voters and the Terrebonne Parish NAACP filed suit in 

2014 to challenge the electoral method for Louisiana’s 32nd Judicial District 

Court (“32nd JDC”). They asserted that at-large elections for the judges 

produce discriminatory results, violating Section 2 of the Voting Rights Act,

and have been maintained for a discriminatory purpose in violation of that

statute and the Fourteenth and Fifteenth Amendments. After trial, the 

district court upheld both claims. Eventually, it ordered a remedial plan

breaking the 32nd JDC into five single-member electoral subdistricts. 

Louisiana’s Attorney General appealed.

United States Court of Appeals

Fifth Circuit

FILED

June 29, 2020

Lyle W. Cayce

Clerk

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Careful review persuades us that the district court erred legally and 

factually. Specifically, the court erred in holding that weak evidence of vote 

dilution could overcome the state’s substantial interest in linking judicial 

positions to the judges’ parish-wide jurisdiction, and it erroneously equated

failed legislative attempts to create subdistricts for the 32nd JDC with a 

racially discriminatory intent. We REVERSE.1

BACKGROUND

The 32nd JDC encompasses Terrebonne Parish. Terrebonne Parish 

begins south of New Orleans and covers territory extending well into the 

bayous and ultimately to the Gulf of Mexico. Formerly the site of sugar 

plantations, the parish became a hub for the offshore oil and gas industry 

seventy years ago. The Parish seat is located in Houma, population over 

30,000, with a few smaller towns and Cajun residents still living among the 

bayous. Of the parish’s population, about ten percent of the residents still 

spoke French at home according to the 2010 Census; slightly less than 19% of 

the residents were black.

Since its creation in 1968, elections for the five judicial seats in the 32nd 

JDC have been conducted on an at-large basis. The plaintiffs’ lawsuit took

issue with this electoral method, asserting claims under Section 2 of the Voting 

Rights Act (“VRA”) and unconstitutional racial discrimination. They initially

named as defendants then-Louisiana Governor Piyush “Bobby” Jindal, 

Attorney General James “Buddy” Caldwell, and Secretary of State Tom

Schedler. During discovery, the plaintiffs, without explanation, moved to 

dismiss the Secretary of State with prejudice. The district court granted that 

motion.

1 The issuance of this opinion renders moot the state’s motion to stay the district 

court’s final judgment and injunction pending appeal.

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After an eight-day bench trial, the district court held in 2017 that 

Louisiana’s use of an at-large voting system for the 32nd JDC “deprives black 

voters of the equal opportunity to elect candidates of their choice in violation 

of Section 2” of the VRA, and that the voting system “ha[d] been maintained 

for that [discriminatory] purpose, in violation of Section 2 and the United 

States Constitution.” The court reached these conclusions after rejecting the 

defendants’ standing argument and their claim of Eleventh Amendment 

immunity.

The district court invited the parties to submit proposals “regarding the 

appropriate remedy for the court and legislature to take.” Neither the 

defendants nor the Louisiana legislature, for two legislative sessions, offered a 

plan conforming to the judgment. A new judge was substituted after the trial 

judge passed away, and in early 2019 the court determined that it “would be 

aided by the technical expertise of a Special Master” in reviewing the plaintiffs’ 

proposed districting plans. The Special Master endorsed, and the district court 

adopted, a plan to divide the 32nd JDC into five single-member subdistricts, 

one of which was created as a likely majority-black district. The district court 

then enjoined the Governor and Attorney General “from administering, 

implementing, or conducting any future elections for the 32nd JDC in which 

[judges] are elected on an at-large basis;” commanded them to “ensure that all 

elections for the 32nd JDC . . . be conducted using the remedial redistricting 

[p]lan;” and ordered them to “take all steps necessary to implement the five 

single-member district plan . . . in order to allow district-based elections to 

proceed.” Only the Attorney General has appealed from this adverse 

judgment.

STANDARD OF REVIEW

This court reviews questions of subject matter jurisdiction, including 

standing, de novo. Ctr. for Individual Freedom v. Carmouche, 449 F.3d 655, 

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659 (5th Cir. 2006). We likewise review de novo “the legal standards the 

district court applied to determine whether Section 2 has been violated,” but

“we review the district court’s findings on the Gingles threshold requirements 

and its ultimate findings on vote dilution for clear error.” Sensley v. Albritton, 

385 F.3d 591, 595 (5th Cir. 2004). A factfinding of intentional discrimination 

in a voting rights case is also reviewed for clear error. United States v. Brown, 

561 F.3d 420, 432 (5th Cir. 2009). “The clear error standard precludes reversal 

of a district court’s findings unless we are ‘left with the definite and firm 

conviction that a mistake has been committed.’” Rodriguez v. Bexar County, 

385 F.3d 853, 860 (5th Cir. 2004) (quoting Anderson v. City of Bessemer City, 

470 U.S. 564, 573, 105 S. Ct. 1504, 1511 (1985)).

DISCUSSION

The Attorney General challenges the plaintiffs’ standing to assert their 

claims and raises an Eleventh Amendment sovereign immunity defense. He 

contends that the plaintiffs’ vote dilution claim fails the preconditions 

established in Thornburg v. Gingles, 478 U.S. 30, 106 S. Ct. 2752 (1986). In

particular, he asserts that the court discounted this court’s en banc decision in 

League of United Latin Am. Citizens, Council No. 4434 v. Clements, 999 F.2d 

831, 868 (5th Cir. 1993) (“LULAC”), which holds, as a matter of law, that a 

state’s “substantial” “linkage interest” in at-large judicial elections “may be 

overcome only by evidence that amounts to substantial proof of racial dilution. 

Otherwise, the at-large election of district court judges does not violate 

Section 2.” Finally, he argues that the district court erred in finding 

intentional discrimination. We are persuaded by the last two of these 

contentions and reverse on that basis.

I

Taking a novel position in voting rights litigation, the Attorney General

argues that the plaintiffs lack Article III standing to sue after they dismissed

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the Secretary of State and, alternatively, the Eleventh Amendment bars this 

suit. Neither argument works. In order to have constitutional standing, a 

plaintiff must establish (1) an injury in fact that is (2) fairly traceable to the 

challenged action of the defendant and (3) redressable by a favorable ruling. 

Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61, 112 S. Ct. 2130, 2136 (1992).

Although the Governor has not appealed, the district court must have had 

jurisdiction to find liability and fashion a remedial order against the Governor. 

Further, standing must exist at all stages of the litigation. Fontenot v. 

McCraw, 777 F.3d 741, 747 (5th Cir. 2015). The plaintiffs plainly had standing 

to maintain suit against Louisiana’s Governor. Without raising any complaint 

in the past about his standing, the Governor has been a party defendant in 

nearly all of Louisiana’s voting rights cases challenging judicial districts2, and 

as chief executive, he plays a pivotal role in the enactment of legislation that 

could address any adverse federal judgment. Cf. Allstate Ins. Co. v. Abbott, 

495 F.3d 151, 159 (5th Cir. 2007) (“A case brought against a state officer in his 

official capacity is essentially a suit against the state. . . . Because the state 

itself is a party, causation and redressability are easily satisfied in this 

case. . . . A declaration of unconstitutionality directed against the state would 

redress [the plaintiff’s] injury . . . .”).3 In contrast, the Secretary of State, 

although an elected official4, is responsible for conducting elections only after 

the districts have been changed, whether by law or by court order. The 

2 See, e.g., Chisom v. Roemer, 501 U.S. 380, 384, 111 S. Ct. 2354, 2358 (1991); Prejean 

v. Foster, 83 Fed. App’x 5 (5th Cir. 2003); Hall v. Louisiana, 983 F. Supp. 2d 820, 824 (M.D. 

La. 2013).

3 The plaintiffs sought, among other remedies, a declaration that the challenged 

electoral scheme was unconstitutional. Such a declaration would be sufficient to redress the 

plaintiffs’ injuries insofar as it would force the state—who the Governor, in his official 

capacity, represents—to prescribe another plan before proceeding with elections.

4 In Texas, by contrast, the Secretary of State holds a gubernatorial appointment.

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Attorney General’s implicit argument that only the Secretary of State should 

have been sued is wrong.5

The Attorney General’s other jurisdictional argument is that the 

Eleventh Amendment shields him and the Governor from suit. The parties 

spar over the prerequisites of Ex parte Young’s exception to Eleventh 

Amendment immunity. See Ex parte Young, 209 U.S. 123, 28 S. Ct. 441 (1908); 

Okpalobi v. Foster, 244 F.3d 405, 414–15 (5th Cir. 2001) (en banc). Both 

parties miss the mark. “The VRA, which Congress passed pursuant to its 

Fifteenth Amendment enforcement power, validly abrogated state sovereign 

immunity.” OCA-Greater Houston v. Texas, 867 F.3d 604, 614 (5th Cir. 2017). 

Thus, the immunity from suit these officials might otherwise enjoy offers no

protection from VRA suits, whether premised on dilution or intentional 

discrimination.

II

Addressing the merits of the appeal, the Attorney General initially 

challenges the district court’s finding of vote dilution, followed by its finding of 

intentional racial discrimination in the legislature’s failure to voluntarily 

adopt single-member districts for judicial elections in the 32nd JDC.

A

Section 2 of the VRA prohibits states from imposing or applying any

“standard, practice, or procedure . . . which results in a denial or abridgement 

5 This conclusion is a unique product of the VRA, enacted under the Fifteenth 

Amendment to protect the voting rights of African-Americans from state interference. See 

United States v. Mississippi, 380 U.S. 128, 136–38, 85 S. Ct. 808, 812–13 (1965) (state can be 

directly sued pursuant to VRA implementing the Fifteenth Amendment). This decision, 

accordingly, does not authorize parties to sue the Governor (or other state officer) whenever 

a party challenges duly enacted laws. See, e.g., Okpalobi v. Foster, 244 F.3d 405 (5th Cir. 

2001) (en banc). Further, we take no position on whether, had the court’s remedial order 

here been upheld, standing would exist and the court could have enforced its remedy without 

the continued presence of the Secretary of State, who is Louisiana’s chief elections officer.

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of the right of any citizen of the United States to vote on account of race or 

color.” 52 U.S.C. § 10301(a). A violation of Section 2

is established if, based on the totality of 

circumstances, it is shown that the political processes 

leading to nomination or election in the State or 

political subdivision are not equally open to 

participation by members of a [racial] class of citizens 

. . . in that its members have less opportunity than 

other members of the electorate to participate in the 

political process and to elect representatives of their 

choice.

Id. § 10301(b).

Section 2 claims brought against multimember electoral districts are 

governed by the framework established in Thornburg v. Gingles. “Under 

Gingles, plaintiffs challenging an at-large system on behalf of a protected class 

of citizens must demonstrate that (1) the group is sufficiently large and 

geographically compact to constitute a majority in a single-member district; 

(2) it is politically cohesive; and (3) the white majority votes sufficiently as a 

bloc to enable it usually to defeat the minority’s preferred candidate.” LULAC, 

999 F.2d at 849. Satisfaction of these three “preconditions” is necessary, but 

not sufficient, to establish liability. Id. “Plaintiffs must also show that, under 

the ‘totality of circumstances,’ they do not possess the same opportunities to 

participate in the political process and elect representatives of their choice 

enjoyed by other voters.” Id. The so-called “Zimmer factors” guide this second 

inquiry. Id.6

6 These factors include:

1. the extent of any history of official discrimination in the state or political 

subdivision that touched the right of the members of the minority group to register, to vote, 

or otherwise to participate in the democratic process;

2. the extent to which voting in the elections of the state or political subdivision is 

racially polarized;

3. the extent to which the state or political subdivision has used unusually large 

election districts, majority vote requirements, anti-single shot provisions, or other voting 

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The Attorney General maintains that the plaintiffs’ claim of vote dilution 

fails each of the Gingles preconditions as well as the ultimate totality of 

circumstances standard. A searching and practical review of the electoral 

conditions in Terrebonne Parish is required to evaluate the district court’s 

determinations. Gingles, 478 U.S. at 45, 106 S. Ct. at 2764.

1

The Attorney General avers that the plaintiffs’ claim fails the first 

Gingles precondition because the parish’s African-American community is 

neither sufficiently large nor geographically compact to make up a single 

member district that complies with traditional districting principles. To 

support this argument, he postulates that the 50.4% of non-Hispanic black 

voting age population in the plaintiffs’ proposed majority-minority district, 

District 1, falls short of the bare majority needed to satisfy Gingles’s

numerosity requirement.7 See Bartlett v. Strickland, 556 U.S. 1, 18, 129 S. Ct. 

practices or procedures that may enhance the opportunity for discrimination against the 

minority group;

4. if there is a candidate slating process, whether the members of the minority group 

have been denied access to that process;

5. the extent to which members of the minority group in the state or political 

subdivision bear the effects of discrimination in such areas as education, employment and 

health, which hinder their ability to participate effectively in the political process;

6. whether political campaigns have been characterized by overt or subtle racial 

appeals;

7. the extent to which members of the minority group have been elected to public office 

in the jurisdiction;

8. whether there is a significant lack of responsiveness on the part of elected officials 

to the particularized needs of the members of the minority group; and

9. whether the policy underlying the state or political subdivision’s use of such voting 

qualification, prerequisite to voting, or standard, practice or procedure is tenuous.

See LULAC, 999 F.2d at 849 n.22; S. REP. No. 97-417, at 28–29 (1982).

7 Some of the Attorney General’s complaints are mistakenly lodged against the Special 

Master’s remedial plan. At Gingles step one, our evaluation is limited to whether the 

plaintiffs offered sufficient evidence of numerosity and compactness. To do this, we consider 

the plaintiffs’ proposed districting map ruled on by the trial court, not the remedial plan 

eventually accepted.

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1231, 1245 (2009) (“[T]he majority-minority rule relies on an objective, 

numerical test: Do minorities make up more than 50 percent of the voting-age 

population in the relevant geographic area?”). He also points to the odd shape 

of the plaintiffs’ proposed remedial map, arguing that it undermines the court’s 

finding of compactness and is at odds with traditional districting principles.

Turning first to the Attorney General’s numerosity argument, the 

district court noted that both plaintiffs’ and defendants’ experts “agreed that 

the black population in Terrebonne is sufficiently numerous such that 

[proposed] District 1 has a greater than 50% voting-age black population.” The 

Attorney General’s current position is thus inconsistent with the view 

expressed by his own expert. Perhaps recognizing as much, the Attorney 

General argues that the percentages cited by the district court fail to account 

for voter turnout. Because black voter turnout is substantially lower than 

white voter turnout, the Attorney General argues there is no reasonable

opportunity for the threadbare majority of black voters in District 1 to elect a 

candidate of their choice. The first Gingles precondition, however, does not 

require a showing that a majority of the voters in a future election will be black. 

All the plaintiffs have to show is that the black minority is numerous enough 

to “constitute a majority in a single-member district.” LULAC, 999 F.2d at 

849. That is not to say that the probability of blacks electing their preferred 

candidates in future elections is irrelevant. To the contrary, this bears on the 

totality of the circumstances, which we discuss later. See Abbott v. Perez, 

138 S. Ct. 2305, 2332 (2018) (“Under Gingles, the ultimate question is whether 

a districting decision dilutes the votes of minority voters, . . . and it is hard to 

see how this standard could be met if the alternative to the districting decision 

at issue would not enhance the ability of minority voters to elect the candidates 

of their choice.”); Harding v. County of Dallas, 948 F.3d 302, 310–11 (5th Cir. 

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2020). The Attorney General’s argument is misplaced at this stage of the 

analysis.

Even so, the trial record casts doubt not only on the effectiveness of the 

proposed voting age majority, but also on the compactness of the proposed 

district. The plaintiffs’ plan constructed a horseshoe shape district around 

Houma in order to pick up minority residential areas in that town and in Gray 

and Schriever.8 The plaintiffs’ plan split fourteen of the twenty-one voting 

precincts affected by the proposed majority-minority district. Cf. Bush v. Vera, 

517 U.S. 952, 974, 116 S. Ct. 1941, 1959 (1996) (criticizing redistricting plan 

for splitting “local election precincts”). The majority-minority district also

suffered from very low compactness scores on both mathematical matrices 

cited by the parties. And its odd shape suggests that race served as the sine 

qua non for selecting which blocks to include in the proposed district, all in an 

effort to achieve the necessary demographic of 50% plus one black voting age 

population. See Sensley v. Albritton, 385 F.3d 591, 596 (5th Cir. 2004) (“As the 

geographical shape of any proposed district necessarily directly relates to the 

geographical compactness and population dispersal of the minority community 

in question, it is clear that shape is a significant factor that courts can and 

must consider in a Gingles compactness inquiry.”).

Appellees respond that neither the district’s contorted horseshoe shape 

nor its compactness scores count against a finding of vote dilution because 

other political districts in this area, e.g. for the state legislature and the parish 

council and school board, “resemble” its shape. See Houston v. Lafayette 

County, 56 F.3d 606, 611 (5th Cir. 1995). Nonetheless, this comparison with 

8 Compactness may often be in the eye of the judicial beholder, but plaintiffs’ proposed 

district is not far off from those condemned by the courts in Bush v. Vera, 517 U.S. 952, 

116 S. Ct. 1941 (1996); Shaw v. Reno, 509 U.S. 630, 113 S. Ct. 2816 (1993); and Gomillion v. 

Lightfoot, 364 U.S. 339, 81 S. Ct. 125 (1960).

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other misshapen districts does not make a strong case for the first Gingles 

factor.

Moreover, given several facts noted by the district court, satisfying this 

factor was inherently challenging for plaintiffs. African-Americans comprised

barely 19% of the 112,000 residents of Terrebonne Parish according to the 2010 

Census (or 20% if counted by Any-Part Black). Nearly all of their numbers had 

to be joined to give them an “opportunity district” within a five-member judicial 

body. Additionally, the locations of small towns, interconnecting roads, and 

many bayous formed natural barriers to traditional districting. But we owe 

deference to the district court on this highly factual issue and are unable to 

conclude that the court clearly erred. In addition to analyzing compactness

scores and the number of split precincts, the court observed that the plaintiffs’ 

remedial plan maintained communities of interest, contained contiguous 

districts, protected incumbents, and respected the principle of one person, one 

vote. In sum, while the district court’s compactness analysis is far from

ironclad, it is not so erroneous as to alone warrant reversal.

2

The second and third Gingles preconditions pose the same question, but 

for different demographic groups: Is there significant racial bloc voting (or

racially polarized voting)? See Gingles, 478 U.S. at 56, 106 S. Ct. at 2769;

Teague v. Attala County, 92 F.3d 283, 287–88 (5th Cir. 1996). The district court 

answered these questions in the affirmative, as it found that “a significant 

number of minority group members usually vote for the same candidates” and 

whites typically vote in such a way that they “normally will defeat the 

combined strength of minority support plus white ‘crossover’ votes.” Gingles, 

478 U.S. at 56, 106 S. Ct. at 2769.

The Attorney General has nothing to say about the proven political 

cohesiveness of the parish’s black voters. Instead, he contends that the 

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unopposed 2014 election of African-American Juan Pickett to the 32nd JDC

constituted powerful evidence that white Terrebonne parish voters do not 

typically vote in such a way as to defeat the minority’s supported candidate. 

The relevant standard for evaluating this signal victory is whether “the white 

majority votes sufficiently as a bloc to enable it—in the absence of special 

circumstances, such as the minority candidate running unopposed . . . —usually 

to defeat the minority’s preferred candidate.” Id. at 51 (emphasis added); see 

also Rollins v. Fort Bend Indep. Sch. Dist., 89 F.3d 1205, 1213 (5th Cir. 1996) 

(permitting consideration of special circumstances to “explain a single minority 

candidate’s victory” (emphasis added)). The district court makes much of the 

facts that Juan Pickett ran unopposed and his election occurred during the 

pendency of this litigation. The former consideration suggests Pickett’s 

election was a fluke, while the latter consideration has been held relevant to 

the “special circumstances” assessment. Clark v. Calhoun County, 21 F.3d 92, 

96 (5th Cir. 1994). Yet the district court, and the plaintiffs for that matter, go 

on to imply that Judge Pickett “was not clearly the Black community’s 

candidate of choice.” That the judge had been a member of the local community 

for many years, that he had served as an Assistant District Attorney for 

seventeen years and been the Terrebonne Parish bar president, and that he 

had been seeking political support long before 2014, are unmentioned in the 

district court’s findings. Judge Pickett’s admirable record would seem to have 

been a noteworthy “special circumstance” suggesting why he cleared the field 

of opponents before the election.

Significant as Judge Pickett’s election should be, contrasting with this 

single election is testimony from the plaintiffs’ expert, Dr. Engstrom, that “the 

magnitude of polarization” in this case was significant. Dr. Engstrom analyzed 

seven elections, spanning over twenty years, in which at least one black 

candidate competed against one white candidate. The candidates preferred by 

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black voters lost every time, and in each case, he found a high degree of racially 

polarized voting.

Because most of the election results Dr. Engstrom analyzed were

exogenous and decades-old, the Attorney General contends that they are not 

probative of contemporary voting patterns for the 32nd JDC. This argument 

has some force, but it is insufficient to establish clear error for two reasons. 

First, Dr. Engstrom was forced to analyze exogenous election results because 

all recent elections for the 32nd JDC have been uncontested. Reliance on 

exogenous election results in this circumstance has received this court’s 

sanction. See Westwego Citizens for Better Gov’t v. City of Westwego, 872 F.2d 

1202, 1209 (5th Cir. 1989) (approving reliance on exogenous election results 

where no statistics were available for endogenous elections involving a 

minority candidate). That being said, the lack of contested judicial elections 

can also be explained by the dearth of minority candidates qualified to run for 

the 32nd JDC. (We consider this fact among the totality of the circumstances.)

Second, the defendants’ expert, Dr. Weber, also found racially polarized voting

in five of the seven elections Dr. Engstrom analyzed. Dr. Weber criticized 

reliance on stale, exogenous elections and discounted election results for nonparish-wide positions. Such concerns are far from trivial, particularly in light 

of Judge Pickett’s success, but they do not withstand the deferential standard 

of review.

3

Even if all three Gingles preconditions are sustainable, Section 2 is not 

violated unless the totality the circumstances also “weigh[s] in favor of a 

finding that at-large voting for the 32nd JDC interacts with social and 

historical factors to cause an inequality in the political process for black 

voters.” At this level, contrasted with the relatively weak support for the 

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plaintiffs’ position on the Gingles factors, the Attorney General’s arguments

become decisive.

The district court found that seven of the nine Zimmer factors weighed 

in the plaintiffs’ favor. The Attorney General homes in on one of those 

factors—the State’s policy justification for selecting trial court judges in atlarge elections.9 Louisiana asserts a linkage interest in the use of at-large 

judicial elections, that is, an “interest in maintaining the link between a 

district judge’s jurisdiction and the area of residency of his or her voters.” 

Houston Lawyers’ Ass’n v. Attorney Gen. of Tex., 501 U.S. 419, 426, 111 S. Ct. 

2376, 2381 (1991). Following Houston Lawyers’ Association, this court 

examined the substantiality of this interest at length in the en banc LULAC

case. As Judge Higginbotham explained there, “by making coterminous the 

electoral and jurisdictional bases of trial courts,” the State “advances the 

effectiveness of its courts by balancing the virtues of accountability with the 

need for independence. . . . A broad base diminishes the semblance of bias and 

favoritism towards the parochial interests of a narrow constituency.” LULAC, 

999 F.2d at 869. In contrast, subdistricting introduces the appearance of ward 

politics, detracting from the appearance of judicial independence. Id. 

Moreover, the “inescapable truth” is that destroying linkage diminishes 

minority influence. Id. at 873. By creating a majority-minority district, many 

minority voters are “marginalized, having virtually no impact on most district 

court elections.” Id.

9 The Attorney General also correctly notes that among the Zimmer factors is the 

state’s “history” of official electoral discrimination. Two points are relevant. First, as the 

Chief Justice has observed, “our country has changed” in its treatment of minorities. Shelby 

County v. Holder, 570 U.S. 529, 557, 133 S. Ct. 2612, 2631 (2013). Second, that the state 

failed to receive preclearance from DOJ under the now-void Section 4 of the VRA does not 

prove this “historical” point, because the Section 4 test did not deal with actual 

discrimination in election practices but with the lesser charge of “backsliding.” Reno v. 

Bossier Parish School Bd., 528 U.S. 320, 335, 120 S. Ct. 866, 875 (2000).

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The district court in this case acknowledged the state’s potential linkage 

interest, but it declared the interest insubstantial for five reasons. “First, the 

Louisiana Constitution does not require that trial court judges be elected atlarge.” “Second, in the late 1980s Louisiana ‘stifled its policy arguments’ 

regarding linkage by agreeing to create judicial subdistricts to end the Clark 

litigation.” “Third, outside of litigation, Louisiana has continued to show that 

it no longer has a linkage interest as it has created subdistricts for trial courts.” 

“Fourth, subdistricts are now common in Louisiana, and a majority of the 

[judicial district court (‘JDC’)] judges in Louisiana are elected by subdistrict.” 

And fifth, “Louisiana has recognized that subdistricts are an important way of 

providing black voters an equal opportunity to elect their preferred candidates 

to trial courts.” Each of these stated reasons, however, is either legally infirm 

or factually wrong.

Before explaining why, we emphasize that the substantiality of 

Louisiana’s linkage interest is a legal question, not a factual one. LULAC, 

999 F.2d at 871. The district court’s holding consequently receives no 

deference. In addition, a state’s linkage interest, while not controlling in a vote 

dilution case, lies at the heart of representative government and thus must be 

treated with great respect. The people of Louisiana have a significant interest 

in defining the structure and qualifications of their judiciary. See Gregory v. 

Ashcroft, 501 U.S. 452, 463, 111 S. Ct. 2395, 2402 (1991). This interest could 

be gainsaid by evidence establishing that the State abandoned any interest in 

linkage. But such evidence would itself have to be substantial since our 

scrutiny is less “demanding where we deal with matters resting firmly within 

a State’s constitutional prerogatives,” including “the establishment and 

operation of . . . government, as well as the qualifications of an appropriately 

designated class of public office holders.” Sugarman v. Dougall, 413 U.S. 634, 

648, 93 S. Ct. 2842, 2850, 2851 (1973). These principles frame the analysis of 

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the district court’s tendered reasons for dismissing Louisiana’s linkage 

interest.

First, that Louisiana’s Constitution does not require the election of 

district court judges on an at-large basis is of no import. This court considered 

a similar argument in LULAC. There, the plaintiffs argued that “Texas 

abandoned its linkage interest by allowing the residents of counties to ‘opt out’ 

of the linkage structure by selecting judges from regions smaller than a 

county.” LULAC, 999 F.2d at 875. This court concluded that such an option

was irrelevant since the people of Texas had, despite the option, chosen to elect 

judges at the county level. Id. Similarly, the fact that Louisiana’s Constitution 

perhaps permits different election schemes is immaterial unless Louisiana has 

actually adopted such schemes.10

Louisiana’s purported adoption of subdistricting for some judicial 

elections leads to the second, third, and fourth reasons cited by the district 

court for questioning the state’s linkage interest. The district court stated that 

Louisiana’s decision to settle the Clark litigation in the 1980s, by creating some 

judicial subdistricts for parishes covered by that litigation, evidences an 

abandonment of its current policy arguments. Not so. Importantly, the Clark 

settlement predated LULAC, in which this court first confirmed the 

significance of a state’s linkage interest. More to the point, the settlement was 

unrelated to the 32nd JDC—or any other district not specifically mentioned in 

10 Additionally—and contrary to the district court’s conclusion—this court has read 

Louisiana’s Constitution to support the State’s asserted linkage interest. See Prejean v. 

Foster, 227 F.3d 504, 517 & n.23 (5th Cir. 2000).

Further, in Rule 28(j) letters, the parties have debated the significance of the 2020 

legislature’s approval of certain judicial subdistricts, “including a redistricting plan that 

contains a Black voter opportunity sub-district, for the 14th JDC,” as evidence that the state 

no longer maintains its linkage interests. But no new sub-districts were created; the 

legislature simply redistricted those already in existence, and the preexisting 14th JDC subdistricts were the result of the Clark litigation.

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the consent decree.11 It represented nothing more than the resolution of a longrunning and costly legal dispute over a few judicial district courts and in no 

way represented an abandonment of Louisiana’s more general interest in 

conducting at-large judicial elections.12

The district court next found that Louisiana “continue[s] to show that it 

no longer has a linkage interest as it has created subdistricts for trial courts.” 

The district court provided no further analysis on this point,13 but it seems 

related to the court’s fourth basis for labeling the State’s interest as 

insubstantial: “subdistricts are now common in Louisiana, and a majority of 

the JDC judges in Louisiana are elected by subdistrict.” This finding, 

charitably, was the product of statistical gymnastics. First, the district court

excluded Orleans Parish from its count, despite that parish both electing 

judges parish-wide and having a large number of judges. Next, the court 

measured the number of judges elected by subdistricts rather than considering 

that the majority of JDCs still use at-large elections. And even then, only by 

excluding Orleans Parish was the district court able to conclude that a majority 

of judges are elected from subdistricts. With the Orleans Parish judges 

included, the number of judges elected from subdistricts falls to fewer than 

half. The district court also failed to account for the reality that all but one of 

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

minority population in Terrebonne Parish was too small to accommodate a “minority 

opportunity” subdistrict there.

12 In LULAC, this court noted that Louisiana “abandoned the link between jurisdiction 

and electoral base” for judicial elections “to settle prolonged litigation.” LULAC, 999 F.2d at 

872, n.33; and in Prejean, the court noted “the state stifled its policy arguments to obtain 

final preclearance.” Prejean, 227 F.3d at 510–12. These statements are descriptive, however, 

not prescriptive, as the district court seemed to suggest.

13 The court may have been referring to the voluntary creation of majority-minority 

subdistricts for city and juvenile courts. These courts, however, are distinct from district 

courts, which operate at the parish level.

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the subdistricted JDCs are a result of the Clark litigation and ensuing consent 

decree. Once these considerations are taken into account, it is clear that 

Louisiana maintains an interest in conducting at-large elections for district 

court judgeships.

Finally, the district court relied on the findings of a 1996 task force 

created by the Louisiana Supreme Court, which found that the creation of “subdistricts, where appropriate, [is] the only feasible means of ensuring diversity 

and ethnic heterogeneity in our judicial system.” The task force, however, 

never represented the will of the state, nor was it authorized to bind the state 

to its positions. Its findings, moreover, are over two decades old.

In short, the district court’s stated reasons for rejecting Louisiana’s 

linkage interest are less than compelling. Our review of the record confirms 

that Louisiana has a substantial interest in retaining at-large elections. To be 

sure, this conclusion does not put an end to the plaintiffs’ claim of vote dilution. 

See Houston Lawyers’ Ass’n, 501 U.S. at 426, 111 S. Ct. at 2381. Louisiana’s

substantial linkage interest must be balanced against the evidence of vote 

dilution. Id. At this stage, the plaintiffs bear the burden of offering substantial 

proof of dilution to overcome the state’s interest in linkage. LULAC, 999 F.2d 

at 876.

The plaintiffs fail to carry that burden. At best, they have demonstrated 

a marginal case of vote dilution. The plaintiffs have presented no evidence of 

overt or subtle racial appeals in elections for the 32nd JDC. Furthermore, 

much of the evidence reflecting polarized voting derives from exogenous, 

decades-old elections. Most elections for the 32nd JDC have been uncontested. 

This is likely due to the fact that only a few members of the minority class are 

eligible to be elected to the 32nd JDC. Although this court has not precluded

vote dilution claims where few minority candidates have run for office, see 

Clark v. Calhoun County, 88 F.3d 1393, 1398 (5th Cir. 1996), the number of 

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minority candidates eligible for office certainly is relevant, LULAC, 999 F.2d 

at 865. Indeed, “we are instructed to evaluate the totality of the circumstances 

with a ‘functional view of the political process.’” Id. (quoting Gingles, 478 U.S. 

at 45, 106 S. Ct. at 2764). And a “functional analysis of the electoral system 

must recognize the impact of limited pools of eligible candidates on the number 

of minority judges that has resulted.” Id. Unlike many public offices, 

judgeships are foreclosed to most of the population, not because the majority 

defines who is qualified at the ballot box, but because those qualifications are 

set by law. The Louisiana Constitution sets the qualifications for district court 

judges, requiring domicile in the district for one year and admittance to the 

state bar for at least eight years. LA. CONST. art. V, § 24. In Terrebonne 

Parish, just a handful of minority citizens—about ten, according to the district 

court—meet these qualifications (to say nothing of the number of qualified 

minority lawyers in the plaintiffs’ proposed remedial district).

We also must consider voter turnout, an issue mentioned previously in

passing. As this court recently explained, plaintiffs need not demonstrate 

guaranteed success under a hypothetical redistricting plan to prevail on a 

claim of vote dilution. Harding, 948 F.3d at 309. Yet, at the same time, “an 

alternative map containing an additional majority-minority district does not 

necessarily establish an increased opportunity.” Id. And as Perez and Harding

remind, plaintiffs must meet the overarching demand that their new 

districting scheme enhances their ability to elect candidates of their choosing. 

Perez, 138 S. Ct. at 2332. The plaintiffs’ experts acknowledged that black voter 

turnout in Terrebonne Parish lags behind white voter turnout. Relatedly, the 

defendants’ expert attested that a 56% black voting age population was 

required to ensure blacks have the opportunity to elect their preferred 

candidates. At best, the plaintiffs’ proposed remedial district had a black 

voting age population of 53.33%. That the plaintiffs’ proposed majority-

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minority district sufficiently enhances minority voters’ ability to elect the 

candidates of their choice is not a well-supported proposition on this record.

Coupling these problems with the compactness concerns discussed above 

and the district court’s mischaracterization of Louisiana’s linkage interest, we 

are left with the firm conviction that the district court erred in finding a 

violation of the VRA.

B

The district court’s finding of discriminatory intent formed an 

independent basis for liability. McMillan v. Escambia County, 748 F.2d 1037, 

1046 (Former 5th Cir. 1984). An election practice violates Section 2 and the 

Fourteenth and Fifteenth Amendments if it is undertaken and maintained for 

a discriminatory purpose. United States v. Brown, 561 F.3d 420, 432 (5th Cir. 

2009). Under this intent-based approach, “[r]acial discrimination need only be 

one purpose, and not even a primary purpose, of an official act” for a violation 

to occur. See Velasquez v. City of Abilene, 725 F.2d 1017, 1022 (5th Cir. 1984). 

But discriminatory intent “implies more than intent as volition or intent as 

awareness of consequences. . . . It implies that the decisionmaker . . . selected 

or reaffirmed a particular course of action at least in part ‘because of,’ not 

merely ‘in spite of,’ its adverse effects upon an identifiable group.” Pers. Adm’r 

of Mass. v. Feeney, 442 U.S. 256, 279, 99 S. Ct. 2282, 2297 (1979). “To find

discriminatory intent, ‘direct or indirect circumstantial evidence, including the 

normal inferences to be drawn from the foreseeability of defendant’s actions’

may be considered.” Brown, 561 F.3d at 433 (quoting McMillan, 748 F.2d at 

1037).

Five non-exhaustive factors guide courts in determining whether a 

particular decision was made with a discriminatory intent: (1) the 

discriminatory impact of the official action; (2) the historical background of the 

decision; (3) the specific sequence of events leading up to the challenged action; 

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(4) substantive and procedural departures from the normal-decision making 

process; and (5) contemporaneous viewpoints expressed by the decisionmakers. Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 

266–68, 97 S. Ct. 555, 564–65 (1977); see also Veasey v. Abbott, 830 F.3d 216, 

231 (5th Cir. 2016) (en banc).

Applying these factors, the district court found that a discriminatory 

purpose motivated maintenance of the at-large election system for the 32nd 

JDC. This conclusion was based primarily on the discriminatory impact of atlarge voting, the sequence of events leading to the rejection of efforts to create 

a majority-minority subdistrict, and the supposedly pretextual arguments 

made by the opponents of subdistricting.14 We have already determined that, 

by inadequately substantiating plaintiffs’ vote dilution claim, the district court 

erred in its assessment of discriminatory impact. The district court’s decision 

thus stands on two findings.

Black residents in Terrebonne Parish began advocating judicial

subdistricting in the 1980s. Over the years, multiple bills proposing the 

creation of a majority-minority subdistrict were introduced in the Louisiana 

legislature, but none passed both houses. The district court was convinced that 

14 The district court also suggested that its holding was based on Louisiana’s welldocumented history of de jure discrimination. But Arlington Heights calls for an examination 

of the historical background of the challenged decision, not a probing investigation into an 

alleged pattern of statewide discrimination. See Vill. of Arlington Heights, 429 U.S. at 267, 

97 S. Ct. at 564. The plaintiffs recognize as much and suggest that the adoption of an atlarge election method for the 32nd JDC was prompted by a desire to dilute the strength of 

the black vote. Louisiana district court judges, however, have long been elected on an atlarge basis—before creation of the 32nd JDC and before passage of the VRA. Clark v. Roemer, 

751 F. Supp. 586, 588 (M.D. La. 1990), rev’d, 500 U.S. 646, 111 S. Ct. 2096 (1991). 

Louisiana’s linkage interest explains this choice. Were we to conclude otherwise—with no 

direct evidence that racial prejudice spurred the adoption of at-large elections for Louisiana’s 

JDCs—every at-large election scheme for judicial districts would be subject to judicial 

scrutiny as being formed and maintained for a discriminatory purpose. In other words, the 

State’s long-standing linkage interest would be subordinated to a pretext for discrimination.

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the failure of this legislation was driven, in part, by racial discrimination. The 

evidence, taken in context, does not support the district court’s findings.

Fundamental to this inquiry is the sensitive nature of questioning the 

intent of lawmakers. See Vill. of Arlington Heights, 429 U.S. at 266, 97 S. Ct. 

at 564. “Proving the motivation behind official action” has been described as 

“a problematic undertaking,” Hunter v. Underwood, 471 U.S. 222, 228, 

105 S. Ct. 1916, 1920 (1985), and “a hazardous matter,” United States v.

O’Brien, 391 U.S. 367, 383, 88 S. Ct. 1673, 1682 (1968). Accordingly, direct 

evidence of discriminatory intent must be prioritized over circumstantial 

evidence (though such evidence remains relevant). See Feeney, 442 U.S. at 279, 

99 S. Ct. at 2296; see also Veasey v. Abbott, 796 F.3d 487, 503 n.16 (5th Cir. 

2015), reh’g en banc granted, 830 F.3d 216 (5th Cir. 2016) (“While it is true that 

it is unlikely for a legislator to stand in the well of the state house or senate 

and articulate a racial motive, it is also unlikely that such a motive would 

permeate a legislative body and not yield any private memos or emails.”).

Similarly, state legislatures are afforded a presumption of good faith. Perez, 

138 S. Ct. at 2324. Legislative decisions are, of course, not immune from 

review. But the Supreme Court has long cautioned against the quick 

attribution of improper motives, which would interfere with the legislature’s

rightful independence and ability to function. See Flemming v. Nestor, 

363 U.S. 603, 617, 80 S. Ct. 1367, 1376 (1960) (“[O]nly the clearest proof could 

suffice to establish the unconstitutionality of a statute on [the] ground [of 

improper legislative motive].”).

The district court relied exclusively on circumstantial evidence 

surrounding the Louisiana legislature’s rejection of several proposals to create 

a new judgeship for the 32nd JDC. The first piece of legislation proposing the 

creation of an additional judgeship was introduced in 1997. As originally 

conceived, the judgeship would be elected at-large. Minority residents of 

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Terrebonne Parish proposed an alternative: the creation of a majorityminority subdistrict. Legislative staff responded that the proposed minority 

subdistrict would not be contiguous and would violate reapportionment 

jurisprudence. Upon the request of subdistricting proponents, the legislative 

staff drafted contiguous subdistrict boundaries but found that they exposed the 

district to attack as racially gerrymandered. Because it was not possible to 

draw a majority-minority district that complied with law, the bill was tabled.

The district court viewed this action as pretext for racial discrimination 

because the U.S. Department of Justice had never objected to a majority-black 

subdistrict although it had objected to the creation of additional at-large 

judgeships. However, applying the presumption of good faith, it seems 

perfectly reasonable for legislators to be concerned about traditional districting 

principles and the prejudicial effects of racial gerrymandering. This is 

especially so given that the parties to the Clark litigation agreed that creating

a majority-minority subdistrict for the 32nd JDC was not feasible because of

Terrebonne Parish’s demographics. The choice to evade claims of racial 

gerrymandering by tabling a controversial piece of legislation does not reveal 

discriminatory intent. If anything, these events suggest that the state 

legislature was cognizant of federal preclearance practices as well as the 

concerns of the subdistricting proponents.

The next bill to propose the creation of a sixth at-large judgeship was 

introduced in 1998. It passed the Senate but did not come up for a vote in the 

House. The district court made much of the bill’s success in the Senate despite 

opposition from black residents. But legislation succeeds or fails standing 

alone. It is no evidence of discriminatory intent. Furthermore, the fact that a 

proposal to create a sixth at-large judgeship failed—that is to say, the same 

election method criticized as producing discriminatory results—blunts the 

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plaintiffs’ argument that racial discrimination infected the legislature’s 

decision making.

The district court next points to a request from Judge Ellender, a judge 

on the 32nd JDC acting on behalf of the court, asking the Judicial Council in 

mid-1998 to recommend an additional judgeship. The judges of the court

revoked that request a few months later because juvenile matters, a significant 

portion of their caseload, had been transferred to the Houma City Court. The 

district court questioned the authenticity of this about-face and appeared 

incredulous that the judges would ever rescind a judgeship request. It found 

that, at the time the request was initially sent, the 32nd JDC judges were likely 

aware of advocacy from black residents calling for subdistricting. That may be 

true (though the district court cites little evidence to prove this). But it in no 

way evinces racial prejudice. The asserted basis for withdrawing the request 

for an additional judgeship was a reduced workload. The Judicial Council 

confirmed the 32nd JDC judges’ acknowledgement of a smaller docket, 

concluding in a supplemental report that an additional judgeship was not 

warranted since Houma City Court was handling juvenile matters. The 

plaintiffs provide no evidence to support the assertion that the Judicial 

Council’s otherwise laudable effort to conserve taxpayer resources was a 

coverup for racial prejudice.

The fourth piece of legislation scrutinized by the district court was 

proposed in 1999 and called for the creation of a sixth judge to be elected from 

a majority-minority subdistrict. Judge Ellender wrote to the chair of the 

Senate Judiciary Committee, recommending that the chairman vote against 

the bill because the judges had withdrawn the request for an additional 

judgeship and it would be a waste of taxpayer money to create a new judgeship

where it was not needed. The bill died in committee. The district court 

ascribed bad motive to Judge Ellender’s letter, suggesting it was against the 

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32nd JDC’s interests since they had previously requested a new judgeship. But 

Judge Ellender adequately explained why the judgeship was no longer needed. 

Without evidence proving that racial animus played some part in the Senate 

Judiciary Committee’s decision, the district court had no basis for including 

the rejection of this bill in its calculus.

In 2001, two separate bills were introduced calling for an additional 

judgeship in the 32nd JDC and the creation of a majority-minority subdistrict. 

Both bills were defeated after judges for the 32nd JDC and the Judicial Council 

opposed the legislation on the basis that an additional judgeship was not 

needed at the time. As with the other bills, the sole fact that minority 

advocates of a judicial subdistrict were defeated is alone insufficient to support 

an inference of discriminatory intent behind the legislature’s refusal to pass 

these pieces of proposed legislation.

The same goes for the other actions scrutinized by the district court—

from advocacy to expand the Houma City Court to a proposal to reorganize the 

method for the election of all five 32nd JDC judges. Each of these actions failed 

not because of any demonstrated intent to suppress black voters’ choices, but 

because new judgeships were unnecessary and therefore a waste of taxpayer 

funds. Indeed, at one point there was no courthouse space even available for 

an additional Houma City Court judge. The district court ignored obvious 

practical, non-racial concerns about the creation of new judgeships: if the 

judges haven’t enough to do, the legislature becomes reluctant to support their 

needs; and for every newly created judgeship, the available but limited public 

resources threaten to be reduced per capita. The district court also failed to

mention Louisiana’s substantial linkage interest in its analysis.

The district court’s contrary findings did not afford Louisiana’s 

legislature its entitled presumption of good faith, overemphasized speculative, 

circumstantial evidence, and minimized the testimony of those public officials 

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directly involved in opposing changes to the 32nd JDC. Cf. Price v. Austin

Indep. Sch. Dist., 945 F.2d 1307, 1318 (5th Cir. 1991) (upholding a district

court’s no-discriminatory-intent finding and noting that when decisionmakers 

testify without invoking the privilege, “the logic of Arlington Heights suggests 

that” such direct evidence is “stronger than the circumstantial evidence 

proffered by the plaintiffs”). That the court imputed racial motives to the local 

officials (without substantial basis) and then imputed the local officials’ views 

to the legislature is also of concern. There is no proof that the locals’ positions 

for or against judicial subdistricting must be imputed to the legislators or the 

legislative committees. These errors leave us with “the definite and firm 

conviction that a mistake has been committed.” Anderson v. City of Bessemer

City, 470 U.S. 564, 573, 105 S. Ct. 1504, 1511 (1985) (quoting United States v. 

U.S. Gypsum Co., 333 U.S. 364, 395, 68 S. Ct. 525, 542 (1948)).

That conviction is only strengthened when we review the district court’s 

assessment of contemporaneous viewpoints. The district court criticized those 

legislators who argued against redistricting in a piecemeal fashion. The court 

rebutted that because Louisiana had created subdistricts in piecemeal fashion 

before, it had no basis to oppose redistricting now. For reasons already 

explained, this logic is fallacious. The redistricting referenced by the district 

court resulted either from the Clark settlement or from the creation of 

subdistricts for appellate or lesser courts, none of which decisions eviscerated

the state’s continued interest in retaining at-large JDC elections.

The district court also found that certain legislators’ calls to proceed 

slowly before enacting subdistricts were pretexts for racial discrimination. 

Even if individual legislators’ statements referenced by the district court were 

as suspect as the district court perceived, they are entitled to little probative 

value. The Supreme Court has repeatedly cautioned against overemphasizing

statements from individual legislators, which are not necessarily “what 

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motivates scores of others” to act (or, in this case, not act). O’Brien, 391 U.S. 

at 384, 88 S. Ct. at 1683; see Hunter, 471 U.S. at 228, 105 S. Ct. at 1920. The 

plaintiffs offer no evidence that the pleas to proceed cautiously constituted 

procedural deviations from the normal legislative process or a cover for 

discrimination. One obvious casualty, were Louisiana to abandon linkage 

either wholesale or piecemeal, would be the creation of 26 judicial subdistricts 

for each of the JDC judges in Orleans Parish.

CONCLUSION

We conclude that the district court clearly erred in its finding of minority 

vote dilution in the election of judges for Terrebonne Parish’s 32nd JDC, 

principally, but not solely, because the district court did not adequately credit 

the state’s substantial linkage interest. Likewise, we conclude that the district 

court clearly erred in its finding of discriminatory intent. Because the state is 

not liable under either Section 2 or the United States Constitution, we 

REVERSE the district court’s judgment.

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STUART KYLE DUNCAN, Circuit Judge, dissenting in part and concurring in 

the judgment in part:

Regrettably, I am unable to join Judge Jones’s well-crafted merits 

opinion, because I am not persuaded the plaintiffs have Article III standing.

The normal standing requirements of injury-in-fact, traceability, and 

redressability apply to claims under the Voting Rights Act (“VRA”). See, e.g., 

Harding v. Cty. of Dallas, 948 F.3d 302, 307 (5th Cir. 2020); OCA-Greater 

Houston v. Texas, 867 F.3d 604, 609–14 (5th Cir. 2017); League of United Latin 

Am. Citizens, Dist. 19 v. City of Boerne, 659 F.3d 421, 430–31 (5th Cir. 2011). 

As the majority implicitly concludes, the cognizable injury here is alleged 

minority vote dilution caused by at-large judicial elections for Louisiana’s 32nd 

Judicial District Court (“JDC”). Where I part ways with the majority, however, 

is its conclusion that the plaintiffs have shown traceability and redressability 

for this injury as to the Governor of Louisiana.1

The plaintiffs have not shown that the Governor plays any role in 

administering at-large judicial elections in the 32nd JDC, or judicial elections 

anywhere else in Louisiana. Consequently, they cannot demonstrate that any 

injury stemming from this election practice is “fairly traceable” to the 

Governor, nor that the injury will “likely be redressed” by an order against 

him. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560, 561 (1992) (cleaned up).2

1 The Governor and Attorney General are the only two state officials remaining in the 

lawsuit. The majority does not find traceability or redressability as to the Attorney General, 

but only the Governor.

2 Plaintiffs point out that the Governor signs the commissions of judges elected in the 

32nd JDC, see La. Stat. Ann. § 18:513(A)(5), that he must sign legislation before it goes into 

effect, see La. Const. art. III, § 18(A), and that he is empowered to set dates for special 

elections needed to fill vacancies, see LA. CONST. art. V, § 22(B). That begs both standing 

questions—namely, whether the Governor’s exercise of any of these powers caused the 

plaintiffs’ alleged vote-dilution injury, and whether an injunction with respect to any of these 

powers would likely redress that injury. The answer to both questions is no.

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Other Louisiana officials do have legal duties in judicial elections—such as 

parish clerks of court, La. Stat. Ann. § 18:422, boards of election supervisors, 

id. § 18:243(B), or commissioners-in-charge, id. § 18:424(C). These are the 

kinds of officials typically sued in voting cases like this one.3 The plaintiffs 

could have sued them but did not. They did sue the Secretary of State, who is 

the state’s “chief election officer,” id. § 18:421, and has certain election-related 

duties, see id. §§ 18:421(B)–(D), 18:18.4 But the plaintiffs dismissed the 

Secretary, with prejudice, during district court proceedings. I have no idea why 

the plaintiffs made these litigation choices. But their effect was to dissolve any 

case or controversy that is the basic premise for federal judicial action. See

DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 (2006) (“Article III standing 

enforces the Constitution’s case-or-controversy requirement.” (cleaned up)).5

Although the majority does not address whether the plaintiffs have standing to sue 

the Attorney General, the plaintiffs’ arguments on that point are even worse. For example, 

they assert that the Attorney General is the chief legal officer of the state, La. Const. art. IV, 

§ 8, that he must give opinions on legal questions when requested by certain officials, La. 

Stat. Ann. § 49:251, and he represents state interests in election-related litigation, La. Const.

art. IV, § 8. None of those duties comes close to establishing traceability or redressability for 

injuries stemming from at-large judicial elections in the 32nd JDC.

3 See, e.g., Brief of Respondents in Opposition, Chisom v. Roemer, 501 U.S. 380 (1991), 

1990 WL 10022952 (secretary of state and commissioner of elections); Thornburg v. Gingles, 

478 U.S. 30 (1986) (state board of elections, members of the board, secretary of state, and 

others); United States v. Mississippi, 380 U.S. 128 (1965) (state, members of state board of 

elections commissioners, and county registrars of voters); Harding, 948 F.3d 302 (county 

commissioners and others); League of United Latin American Citizens, Council No. 4434 v. 

Clements, 999 F.2d 831 (5th Cir. 1993) (en banc) (secretary of state, members of the Texas 

Judicial Districts Board, and others).

4 None of these state election officials, including the Secretary of State, are subject to 

the Governor’s control.

5 Compare Jacobson v. Fla. Sec’y of State, 957 F.3d 1193, 1207–10 (11th Cir. 2020) (no 

traceability and redressability for equal protection claim because plaintiffs failed to sue 

independent officials who administered challenged ballot-ordering law), with OCA-Greater 

Houston, 867 F.3d at 613–14 (finding traceability and redressability in VRA suit because 

plaintiffs sued Texas Secretary of State, the “chief election officer of the state” who is 

responsible for maintaining uniformity in state election laws (citations omitted)). 

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Look at it this way. The district court’s injunction barred the Governor 

and Attorney General from “administering, implementing, or conducting” the 

at-large judicial elections at issue, and demanded they “ensure” future 

elections would follow the court’s remedial plan. Had the plaintiffs ultimately 

won, would that injunction have likely redressed their injuries? No, because 

neither the Governor nor the Attorney General has authority to “administer, 

implement, or conduct” those elections, or to “ensure” how future elections will 

take place. The order might as well have enjoined the Secretary of the 

Louisiana Department of Wildlife and Fisheries. “For all practical purposes,” 

that is, the injunction would be “utterly meaningless.” Okpalobi v. Foster, 244 

F.3d 405, 426 (5th Cir. 2001) (en banc). Indeed, the majority alludes to this 

problem. It “takes no position” on whether, had the plaintiffs won, “standing 

would exist and the [district] court could have enforced its remedy without the 

continued presence of the Secretary of State, who is Louisiana’s chief elections 

officer.” Maj. Op at 6 n.5. But that articulates precisely the key redressability 

question and, without answering it, the majority lacks authority to proceed to 

the merits. See Singh v. RadioShack Corp., 882 F.3d 137, 151 (5th Cir. 2018) 

(“Standing must be decided at the threshold of every federal case—before a 

determination on the merits.”).6

The majority suggests there is something “unique” about this VRA case 

when it comes to standing, Maj. Op. at 6 n.5, but cites no authority fleshing 

6 The plaintiffs cite Utah v. Evans, 536 U.S. 452 (2002), involving a challenge to the 

method of conducting the 2000 national census, but it does not help them. Utah held an 

injunction against the Secretary of Commerce satisfied redressability because “the practical 

consequence of [a favorable decision] would amount to a significant increase in the likelihood

that the plaintiff would obtain relief that directly redresses the injury suffered”—namely, a 

revised census count leading to an additional representative for Utah. Id. at 464 (emphasis

added). But the plaintiffs have not even met that mark—they point to no evidence suggesting 

that the injunction entered by the district court would “significant[ly] increase . . . the 

likelihood” that at-large elections in the 32nd JDC would be conducted differently.

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out that proposition. It does point to United States v. Mississippi, 380 U.S. 128 

(1965), but that falls short. In that case challenging discriminatory voting 

tests, the plaintiffs sued not only the State of Mississippi, but also “three 

members of the Mississippi State Board of Election Commissioners, and six 

county Registrars of Voters”—officials who administered the voting tests at 

issue. See id. at 130, 132–33. As a result, I fail to grasp how Mississippi teaches 

that the normal standing rules of traceability and redressability apply in a 

“unique” way to a VRA vote-dilution case like this one.

To be sure, Mississippi also teaches that the VRA validly abrogates state 

sovereign immunity as legislation enforcing the 15th Amendment. See id. at 

140; see also, e.g., OCA-Greater Houston, 867 F.3d at 614 (explaining “[t]he 

VRA . . . validly abrogated state sovereign immunity”) (citing Mixon v. State of 

Ohio, 193 F.3d 389, 398–99 (6th Cir. 1999)). For that reason, I have no quarrel 

with the majority’s conclusion that the Ex parte Young arguments raised by 

the Attorney General must fail. See Maj. Op. at 6. But that does not solve the 

traceability or redressability problems, because Article III standing is distinct 

from Young. See OCA-Greater Houston, 867 F.3d at 609–14 (treating standing 

and Young as separate questions in VRA case). In other words, even though 

Young might pose no independent obstacle, the plaintiffs may still lack Article 

III standing because they have “sue[d] the wrong defendant.” Jacobson v. Fla. 

Sec’y of State, 957 F.3d 1193, 1209 (11th Cir. 2020).

On this latter question, unfortunately, our precedents do not speak with 

one voice. On the one hand, we have treated Young separately from the 

traceability and redressability components of standing, most prominently in 

our en banc decision in Okpalobi v. Foster, 244 F.3d 405, 426–27 (5th Cir. 2001) 

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(en banc).7 And we have done so in the VRA context: in OCA-Greater Houston, 

we found traceability and redressability as to the Texas Secretary of State 

given that official’s “enforcement connection” to a challenged Texas election 

law. See 867 F.3d at 613–14 (quoting Okpalobi, 244 F.3d at 427). On the other 

hand, our decision in Allstate Insurance Co. v. Abbott, 495 F.3d 151 (5th Cir. 

2007), appears to elide Young and standing. In that case, involving dormant 

commerce clause and First Amendment challenges to a Texas law, state 

officials removed to federal court and thus waived sovereign immunity. See id.

at 158 n.12. The Young “fiction” was therefore irrelevant. Id. at 159. But this, 

we explained, made the suit really “against the state,” not the officials, and 

rendered causation and redressability “eas[y].” Id. The “state” obviously caused 

the plaintiffs’ injury by passing the law, and an injunction against the “state” 

would remedy it. Id. at 159–60. No inquiry was made as to the officials’ 

connection to the challenged law.

The majority alludes to Allstate, see Maj. Op. at 5, but does not squarely 

rely on it. That is wise, in my view, because extending Allstate to the VRA 

would mean that traceability and redressability would always be found 

regardless of which officials were sued. It is hard to believe that is the law, 

especially because we have recently applied traceability and redressability in 

VRA cases without mentioning Allstate. See, e.g., Harding, 948 F.3d at 307; 

OCS-Greater Houston, 867 F.3d at 609–14. Absent any other authority 

7 Compare Okpalobi, 244 F.3d at 416–19 (plurality op.) (discussing Young’s 

requirement that there be “some connection” between defendant and duty to enforce 

challenged law), with id. at 426–27 (majority op.) (addressing redressability separately and 

concluding “[t]he governor and attorney general have no power to redress the asserted 

injuries”); see also OCA-Greater Houston, 867 F.3d at 609–14 (treating questions separately).

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squarely on point, I would rely on the normal standing requirements and find 

no traceability or redressability as to the Governor.8

In sum, given the plaintiffs’ lack of Article III standing, I would vacate 

the injunction and remand with instructions to dismiss the plaintiffs’ lawsuit 

for lack of jurisdiction. See Hotze v. Burwell, 784 F.3d 984, 1000 (5th Cir. 2015). 

I therefore respectfully dissent from the portion of Part I of the majority 

opinion that concludes the plaintiffs have standing to sue the Governor.

8 The majority suggests it is relevant that “the Governor has been a party defendant 

in nearly all of Louisiana’s voting rights cases challenging judicial districts.” Maj. Op. at 5

(citing Chisom, 501 U.S. at 384; Prejean v. Foster, 83 Fed. App’x 5 (5th Cir. 2003); Hall v. 

Louisiana, 983 F. Supp. 2d 820, 824 (M.D. La. 2013)). I disagree. In each of the cited cases, 

the plaintiffs also sued the Secretary of State or the Commissioner of Elections, or both. See

Brief of Respondents in Opposition, Chisom, 501 U.S. 380, 1990 WL 10022952 (secretary of 

state and commissioner of elections); Prejean, 83 Fed. App’x 5 (commissioner of elections); 

Memorandum in Opposition to Motion for Preliminary Injunction, Hall, 983 F. Supp. 2d 820, 

2013 WL 12308255 (secretary of state). None of these cases stands for the proposition that 

plaintiffs may sue the Governor alone in VRA cases.

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