Why the Voting Rights Act Likely Won’t Survive Supreme Court Review

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While the United States was grappling with whether or not to re-elect its first African-American president, Louisiana was wrestling over whether to appoint its first African-American Chief Justice for its State Supreme Court. Bernette Johnson’s destiny was temporarily deferred when some of her fellow Supreme Court Justices and Gov. Bobby Jindal challenged her right to succeed retiring Chief Justice Catherine Kimball. Louisiana law dictates that the justice who’s served the longest on the bench takes over as chief when the sitting one leaves. Johnson, the court’s only black judge, took the bench in October of 1994, while Justice Jeffrey Victory came on in January 1995.

But Victory declared he had seniority, arguing Johnson’s first few years on the bench didn’t count because it was a special appointment made by a federal consent decree. Indeed, Johnson’s Supreme Court seat was made available because the electoral districts at the time were drawn so that no black Louisianians would ever have the kind of plurality needed to elect a candidate who represented their interests. When you’re black and live in a Southern state that venerates its Confederate heritage while leading the world in locking people up, voting for a judge kinda matters to you.

The consent decree carved out a special district where African Americans could elect a judge of their choice, which turned out to be Johnson who was granted all of the powers of a state Supreme Court justice, despite the unique appointment. Civil rights lawyers, including current Urban League president Marc Morial, pushed for that decree by way of the Voting Rights Act, which is violated when “it is shown that the political processes leading to nomination or election … are not equally open to participation by members of a protected class … 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.”

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