Louisiana Attorney General Jeff Landry has appealed a federal judge’s 2017 ruling that at-large court districts in Terrebonne Parish have been maintained to intentionally discriminate against black voters. His hiring of an outside law firm with connections to the Koch Brothers to handle the appeal highlights the degree to which the Republican Landry has politicized the operation of his office.
This latest skirmish between Landry and Democratic Gov. John Bel Edwards has Edwards paying a political price. Landry, without consulting his client and co-defendant Edwards, retained a partisan election law specialist from Virginia to fight the decision in Terrebonne Parish Branch of NAACP v. Piyush Jindal et al. NAACP leaders believe Landry is needlessly politicizing a fight to end racial discrimination in the 32nd Judicial District Court that has now stretched over three decades.
The Terrebonne Parish NAACP originally filed the lawsuit in 2014, in the U.S. District Court for the Middle District of Louisiana in Baton Rouge. The suit charged that a succession of white political leaders in the 32nd Judicial District of Louisiana, which encompasses all of Terrebonne Parish, had resisted persistent attempts by black citizens to create a majority-minority court sub-district that would provide them the opportunity to elect a judge to the 32nd District bench.
That resistance predated the 2000 Census, the suit said, and included local opposition to no fewer than six bills in the Louisiana Legislature that would have created a majority-minority district for the court. The Terrebonne Parish Council and the parish school board each have nine seats, two of which are in majority-minority districts.
All judges in the history of the 32nd District were white until 2014, when a black judge was elected without opposition. That election was held after the lawsuit was filed. Some observers suspect this was an obvious attempt to undermine the lawsuit. Court testimony showed that the judge who won the uncontested election was not favored by members of the Terrebonne Parish NAACP, a fact that defendants used to question the legitimacy of their lawsuit.
On August 17, 2017, U.S. District Judge James Brady held that racial discrimination was behind the effort to maintain at-large voting, and that this violated the federal Voting Rights Act. Judge Brady reached this conclusion after an 11-day trial that included testimony from 27 witnesses and more than 350 exhibits admitted into evidence.
Gov. Jindal, Attorney General Buddy Caldwell, and Secretary of State Tom Schedler were the original defendants in the suit in their official capacities as officeholders. Jindal was term-limited and left office in January 2016. Landry defeated Caldwell in 2015 statewide elections and took office with Gov. Edwards. Schedler won re-election in 2015, but was later dismissed from the suit.
Edwards and Landry inherited their roles in the suit by virtue of their respective offices. Landry assumed handling of the case for both his office and the governor’s Office. In light of the number and intensity of the legal and political skirmishes between Landry and Edwards since they took office, leaving the case in Landry’s control looks like an error on the governor’s part.
The hired gun
The price of Edwards’ mistake became clear when, on September 18 — a month after Judge Brady’s ruling — Landry served notice to the court that his office planned to appeal the decision to the Fifth Circuit Court of Appeals in New Orleans. The appeal notice, which sought to halt any remedies prescribed by Judge Brady, was filed by elections attorney Jason Torchinsky.
Torchinsky is a partner at Holtzman Vogel Josefiak Torchinsky, a firm the Washington Post described in a 2017 story as representing “some of the nation’s largest super PACs and their related nonprofits, which are often called ‘dark-money’ groups because they are not legally required to disclose the names of their donors.” These groups include the Koch Brothers’ Americans For Prosperity and Karl Rove’s super PAC American Crossroads.
Torchinsky is also a senior adviser to the newly formed National Republican Redistricting Trust, which hopes to raise $35 million to fight lawsuits by groups such as the League of Women Voters and Common Cause, seeking to overturn what the groups maintain are gerrymandered congressional district maps.
The Terrebonne Branch NAACP, through NAACP Legal Defense Fund attorney Leah Aden, moved to dismiss the appeal as premature, since no remedy had been prescribed by Judge Brady in his decision. The Fifth Circuit agreed and dismissed the appeal.
The rush to appeal angered the NAACP. An article in the New Orleans black newspaper Louisiana Weekly, highlighting Torchinsky’s role in attempting to overturn the results of the 2016 North Carolina governor’s race, raised concerns about Edwards’ commitment to black voting rights in Terrebonne. The article constituted the first public mention of Torchinsky’s background and the work of HVJT and raised questions for the Terrebonne Branch NAACP about Edwards’ level of cooperation with Landry.
“It was vicious when they filed this ridiculous appeal and it was premature on Landry’s part,” NAACP Terrebonne Branch President Jerome Boykin told 50 States. “He hired a right-wing law firm out of Virginia that has a history of trying to make it hard for African-Americans to vote.”
“As far as I’m concerned, the jury’s still out on Governor Edwards in this case,” Boykin told 50 States. “He would not be governor without the support of black voters. Matthew Block is on the case now. Block said the governor didn’t want to go the route that Landry was taking on the case. I guess we’ll wait and see.”
Landry’s press secretary did not respond to questions regarding Landry’s choice of Torchinsky to handle the appeal.
Edwards ditches Torchinsky
Boykin said he was shocked to learn that Edwards was a party to the appeal. His dismay was tempered somewhat when Edwards filed to remove Torchinsky as his attorney on the case and replaced him with Executive Counsel Matthew Block.
“The governor’s office was not consulted about the decision to hire HVJT, nor has anyone in our office had any communications with any of the HVJT lawyers,” Block wrote to 50 States in an email Friday.
“The governor believes that there needs to be a more direct participation in this case by our office at this time, which resulted in my enrolling in the case,” Block added. Block has served as Edwards’ executive counsel since the start of his term.
Block did not respond to questions about whether HVJT and Torchinsky’s deeply partisan record affected Edwards’ decision to cut ties with the firm, but the circumstantial evidence suggests that it did. Block, acting on Edwards’ behalf, filed a notice with the court agreeing with the point originally made by Landry’s team that neither the governor nor the attorney general controls the redistricting process. Landry had argued that redistricting falls under the purview of the Legislature, and that neither he nor the governor can force passage of a bill by that branch of government.
NAACP LDF attorney Aden told 50 States by phone on Thursday that she had recommended to Judge Brady on behalf of the Terrebonne Branch NAACP that the Legislature be given one more opportunity to create a majority-minority sub-district in the 32nd Judicial District.
“He had indicated the role of the Legislature in the remedy and we had agreed,” Aden said. “We believe the Legislature should have a chance to respond.”
Brady died unexpectedly on December 9, 2017, at the age of 73. On January 5, the case was reassigned to Judge Shelley D. Dick.
The next opportunity for the Legislature to respond will be during the 2018 Regular Session that begins on March 12. Aden said an author will be found to prepare legislation, although she is not certain a Terrebonne-area legislator will agree to handle the still-to-be-written bill.
“Discussions are happening,” Aden said. “We’re not going to sit idly by during the legislative process. We will be advocating our perspective. We can go to court after the session to make out position clear. There will be many opportunities to have a voice in this process.”
Landry’s unique political role
Aden said the attorney general’s decision to pursue an appeal using a private sector attorney — particularly one as overtly partisan as Torchinsky — raised questions about Landry’s priorities.
“He was elected to represent the people of the state,” Aden told 50 States. “We hope all parties will think about the time and resources already invested by the state in this suit to defend racial discrimination. Surely, this should not be a partisan political issue. What we’ve been asking for is a matter of simple fairness and inclusion — that is not partisan.”
That might be the rule for attorneys general in other states, but Landry has a unique political stake thanks to another post-2015 state election transfer of power.
Following his defeat by Edwards in the 2015 race for governor, Sen. David Vitter handed Landry control of the Louisiana Committee for a Republican Majority (LCRM), an organization Vitter and his wife Wendy founded in late 2005. While the rest of south Louisiana was digging itself out from the muck and mire left in the wake of hurricanes Katrina and Rita, the Vitters were concentrating on seizing the political opportunity created by the destruction. Wendy Vitter has been nominated by President Trump for a seat on the U.S. District Court for the Eastern District of Louisiana.
The LCRM seeks to achieve Republican majorities in the Louisiana House and Senate. Initially, 25 people each pledged $100,000 per year in the two-year run-up to the 2007 elections, to recruit Republican candidates, provide them campaign tools and training, and give them access to consultants ranging from media companies to pollsters.
The organization achieved some of its objectives following a string of retirements by Democrats in Jindal’s 2012 term, with Republicans then winning special elections to fill those seats.
Landry is well positioned to rebuild the LCRM’s finances, thanks to his ties to the Koch Brothers’ funding network. Landry worked for the Kochs’ Americans For Prosperity, in Louisiana and across the country, after Charles Boustany defeated Landry in his 2012 re-election bid. If Landry can rebuild a war chest for the LCRM, he will have an independent power base outside the Republican establishment and inside the Legislature.
Landry believes, with good reason, that he was gerrymandered out of his congressional seat by that Republican establishment in 2011. In the special session on redistricting, Jindal sided with the other five Republican members of the then-seven-member delegation, recommending redrawing congressional district lines to favor Boustany at Landry’s expense.
The LCRM was dormant in the 2015 state election cycle, according to documents filed with the state Ethics Administration. However, the organization showed signs of life under Landry’s control in 2017, when it was active in a number of special elections in the Louisiana House. The organization ended the year with $128,467.89 in the bank, a pittance compared to its peak years under the Vitters.
The LCRM’s updated website makes no mention of its new political boss, but it does give the impression of continuity between Landry and the Vitters’ regime, citing older political victories as well as a special election win in 2017. The site proclaims that the organization will “hold conservatives accountable.” Could voting on redistricting plans favored by Landry be one of the LCRM’s litmus tests?
Landry’s dual roles as the state’s top attorney and the leader of a political organization focused on electing conservative legislators creates potential ethical conflicts, both as an officeholder and as an attorney under the Louisiana Rules of Professional Conduct. The ethical issues arise from the question of who Landry’s clients are and whose interests his actions serve.
Ideological interests aside, Landry’s hiring of Torchinsky for the NAACP case can be viewed as legitimate based on Landry’s role in the case. But what if hiring Torchinsky for the NAACP case is a way of tying him to Landry’s LCRM? Is Torchinsky’s work for Landry the prelude to the LCRM retaining him to work on redistricting in 2021?
The next round of Louisiana state elections is in 2019; Edwards, Landry, and all 144 seats in the Louisiana Legislature will be on the ballot. Control of the 2021 redistricting process is the grand prize in legislative elections that year. The House and Senate will redistrict themselves and the state’s federal congressional districts at that time.
The Legislature has tended to defer to the wishes of the state’s congressional delegation when redrawing the U.S. House districts map. The delegation has had significant turnover since the 2011 redistricting that squeezed out Landry, and it’s not clear how active an interest Landry might take in that process. Legislators might also move to redistrict the state Supreme Court districts in 2021.
A rejuvenated LCRM could give Landry considerable influence over that process, regardless of which office he holds. There is speculation that Landry intends to challenge Edwards’ re-election bid in 2019.
The cost of smash mouth politics
Torchinsky has defended dark-money groups involved in ballot initiative fights in California and an Ohio group opposing former Consumer Financial Protection Bureau head Richard Cordray, who is viewed as a likely Democratic candidate for governor. The Liberty Institute, which has been training conservatives since 1979, lists Torchinsky as a member of its volunteer faculty.
Torchinsky is in demand, but on something of a losing streak. After a razor-thin victory by Democrat Roy Cooper over incumbent Republican Gov. Pat McCrory in North Carolina’s 2016 governor’s race, Torchinsky led the effort to overturn the election results. Hundreds of ballots were challenged in an effort organized by Torchinsky and carried out by other members of the HVJT firm, according to an investigation of the post-election effort by Democracy North Carolina. Some members of HVJT were charged with defamation by voters who were erroneously labeled as felons not eligible to vote by the McCrory Legal Defense Fund, which was led by Torchinsky.
Torchinsky was also lead defense counsel in lawsuits brought against the Commonwealth of Pennsylvania over gerrymandering of congressional districts. The suits were brought by the League of Women Voters and 18 Democratic voters. On January 22, the Pennsylvania Supreme Court declared the districts to be unconstitutional because partisanship figured overtly in the redistricting process.
Republicans have historically been several moves ahead of Democrats on redistricting matters, particularly in Louisiana. Landry’s hiring of Torchinsky is an indication that the pattern persists.
Landry’s ties to the Koch Brothers, his willingness to join lawsuits with other members of the Republican Attorneys General Association, and his ongoing political work in the state make him the most partisan attorney general in modern Louisiana politics. Landry often plays to his white conservative base, but his 2015 victory coalition also included black voters who felt Landry’s predecessor Buddy Caldwell was indifferent to their interests. Landry’s apparent hostility to black voters in the NAACP case shows a willingness to walk away from that constituency.
If, as some observers expect, Landry wants to use the NAACP case to launch a challenge to what remains of the Voting Rights Act, the attorney general could find himself with a shrinking support base heading into what promises to be a bruising 2019 state election cycle.