Weeks after Mississippi Attorney General Lynn Fitch’s reelection, the Republican is working to undermine federal court voter protections. Fitch joined Texas GOP Attorney General Ken Paxton, who recently survived an impeachment and now facing litigation for corruption, in an amicus brief to remove court oversight of states with a history of racism.
Fitch and the other GOP AGs are asking the 5th Circuit to rehear a case that preserves a 1992 consent decree requiring Louisiana to have a majority-Black district in Orleans Parish for state Supreme Court elections. But the potential risk of a majority Black judicial district and Louisiana’s first Black Supreme Court justice (in a state that is 12 percent Black and nearly 20 percent Hispanic) is not the biggest case issue. If Fitch’s amicus brief gets its way it will nullify the federal court’s ability to uphold consent decrees like the one forcing white Louisiana legislators to adhere to the Voting Rights Act.
Fitch, Paxton and Louisiana Gov. Jeff Landry are targeting a court decision preventing the white majority from sprinkling Black voters from New Orleans’ Orleans Parish into white suburbs and diluting their vote. But that is only a Trojan horse for much greater damage. A 1992 consent decree currently prevents washing Black city voters out into majority white suburbs and reducing Black judges, however Fitch, Paxton and Landry, want the 5th Circuit to pull the consent decree entirely and allow all the “packing and cracking” Southern legislators can manage.
Landry demanded the court dissolve the consent decree in 2021, but a three-judge panel of the 5th Circuit refused that request this year after white legislators provided no assurance they would not undermine Black voting power.
“[...] The state has not presented evidence demonstrating that the vestiges of past discrimination have been eliminated to the extent possible or that continued enforcement of the consent judgment is detrimental to the public interest,” the appeals court declared. “The record is thus inadequate to support dissolution (under the Federal Rules of Civil Procedure).”
The NAACP’s Legal Defense Fund cheered that decision.
“With so much at stake, and with states like Louisiana continuing to pass hostile legislation surrounding reproductive rights, LGBTQ+ rights, education, and more, it is crucial that Louisiana adhere to court orders that require them to ensure that Black voters have representation on the state’s highest court,” said LDF Senior Counsel Leah Aden in a statement.
However, Landry has appealed that request up to the full 5th circuit, and likely hopes the overwhelmingly white court will agree to dispel federal protections on the basis that the 5th Circuit panel “put a thumb on the scale to favor keeping the decades-old consent decree,” which “entrenches harms to the State and indefinitely forces decades-old political choices upon it,” apparently because racism has a short lifespan.
Consent decrees, the AGs argue, are cold, aloof acts of enforcement that “lack core hallmarks of judicial decision-making.” They “often do not involve an adjudication of liability,” and they “often never require a court to ‘determine whether the plaintiff established his factual claims and legal theories.’”
The brief claims “the sound resolution of this case is important to ... the States of Mississippi and Texas,” which makes us wonder what Fitch has planned for Mississippi in the absence of federal protections. The state’s slim white majority has already managed to gerrymander Mississippi’s democracy into a farce, and they restrict Black legislators to chair only two out of more than 40 House committees—eradicating Black input from the state’s bill-making process.
We’re just not sure how much more abuse the Mississippi AG could envision, although Fitch’s appeal to the greater 5th Circuit is a mirror image of what she did after a 5th Circuit panel shot down Mississippi’s Jim Crow-era law disenfranchising people convicted of felonies such as writing bad checks and timber larceny.
This year the court panel ruled that Mississippi’s lifetime ban on voting was a violation of the Eighth Amendment’s prohibition against cruel and unusual punishment. Mississippi was one of 11 states with a lifetime voting ban for crimes that have nothing to do with elections or politics. Prior to the panel jettisoning the holdover from the state’s racist 1890 constitution, the ban intentionally excluded one in every six Black Mississippi adults from democracy.
Fitch and many Mississippi Republicans would likely prefer to keep that ban intact along with onerous vote restrictions and other undemocratic behaviors. Perhaps they hope the new 5th Circuit, freshly infested with Trump judges, will make that possible.