Remedies scholars Doug Laycock, Doug Rendleman, Caprice Roberts and I have filed this amicus brief in the Fifth Circuit, which is considering en banc Louisiana’s challenge to the consent decree in the Chisom case. It was written by a great team at O’Melveny featuring Kevin Kraft, Daniel Mateer, Stuart Sarnoff, and David Kelley.

From the Introduction:

The district court did not abuse its discretion in refusing to terminate—but offering to consider modification of—the Consent Decree requiring the State of Louisiana (the “State”) to continue to comply with Section 2 of the Voting Rights Act (“Section 2”) in an Orleans Parish-based district elections for the Louisiana Supreme Court. By its plain language, the Consent Decree is intended to apply prospectively to “ensure” the State’s continued compliance with Section 2 in the Orleans Parish-based district, ROA.98–99, until the State has made a sufficient evidentiary showing that relief from the terms of the Decree is warranted under Rule 60(b)(5). 

As the State has failed to offer any evidence of future compliance with Section 2, and given recent judicial findings that it continues to violate Section 2 as to other elections, it has not met its burden, rendering its present motion to terminate the Consent Decree inadequate as a matter of law. 

The Supreme Court has required that courts take federalism concerns seriously when a state asks to modify or terminate a consent decree imposed by a federal court. But invoking the term “federalism” does not allow the state to evade having to make its required evidentiary showing. In this case, the district court properly indicated it would consider modifying the Consent Decree in a flexible way in light of federalism principles if and when the State comes forward with actual evidence justifying modification. That day, however, has not yet arrived.