Louisiana hires controversial law firm to block fix for racist judicial elections
(UPDATE: Matthew Block, executive counsel for the office of Gov. John Bel Edwards, contacted Facing South after publication of this story with the following statement: "First, please note that the Governor's office was not involved with the hiring of the Holtzman Vogel Josefiak Torchinsky firm by the Attorney General's office, and this firm will not be representing the Governor in this matter. Further, Governor Edwards has informed the Attorney General's office that he will be enrolling his own counsel into the case.")
Back in August, a federal judge ruled in a lawsuit brought by the NAACP that the at-large voting system for judges in Louisiana's Terrebonne Parish southwest of New Orleans makes it difficult for black voters to elect candidates of their choice and thus violates the U.S. Constitution and Section 2 of the Voting Rights Act, which bars discrimination in voting because of race, color or language minority status.
But rather than stand aside and let the legislature fix the districts when it convenes next year, since elections are not imminent, the defendants in the lawsuit — Louisiana Gov. John Bel Edwards (D) and Attorney General Jeff Landry (R) — are appealing early to block the remedial process.
And to represent them, Landry's office has hired an attorney with a Virginia law firm that is currently being sued by a voting rights group in North Carolina for making false and defamatory claims of voter fraud and that was the target of a related complaint of unprofessional conduct filed earlier this year with the N.C. State Bar.
The notice of appeal submitted to the court last month in the Louisiana case was signed by Jason Torchinsky, a partner with Holtzman Vogel Josefiak Torchinsky (HVJT), a prominent Republican firm that specializes in election law. Torchinsky formerly served as counsel to the assistant attorney general for the U.S. Justice Department's Civil Rights Division and as deputy general counsel to the 2004 Bush-Cheney campaign. The firm's managing partner is Jill Vogel, a Virginia state senator and the Republican candidate for lieutenant governor of her state.
Torchinsky's name began appearing on filings in the case last month. Since then, the firm and several of its individual attorneys (but not Torchinsky) were added to a defamation lawsuit filed in North Carolina earlier this year by the Southern Coalition for Social Justice (SCSJ), a voting rights advocacy group, on behalf of people who were falsely accused of felony voter fraud following the 2016 gubernatorial election in which former Attorney General Roy Cooper, a Democrat, narrowly defeated incumbent Gov. Pat McCrory, a Republican.
"Defendants' false accusations against Plaintiffs subjected them to adverse publicity locally, state-wide, and even nationally, as various media reported the allegations and then elaborated on them," SCSJ's amended complaint states. "This embarrassment and harm to their reputations was compounded by the fact that public hearings were noticed and held to consider Defendants' accusations, which was further reported in the media."
As was detailed in a report released earlier this year by elections watchdog Democracy North Carolina, a team involving representatives of the McCrory campaign, N.C. Republican Party and HVJT filed legal paperwork charging about 600 North Carolinians with committing voter fraud or casting suspect absentee ballots — and persisted even after elections officials informed them that they were using bad data. Nearly all of the accusations proved false. Voting rights advocates have called on state and federal officials to look into whether the protest filings violated state and federal laws against harassing and intimidating innocent voters, corrupting the election process and obstructing an election canvass.
Facing South sent public records requests to both Edwards' and Landry's offices for details on the HVJT hiring and terms of the contract. Edwards' office said it "does not have any records relating to the hiring of Holtzman Vogel Josefiak Torchinsky by the Louisiana Attorney General's office." Landry's office said that filling the request "may take some time" and that it would respond within 30 days about whether it's located relevant records. Louisiana reporters who have tried to get details on the hiring have also come up empty-handed.
"Public money is going to a private law firm to stop the remedial process and defend discrimination," said Leah Aden, senior counsel for the NAACP Legal Defense Fund. She noted that this is happening even as Louisiana — which has long had a justice system rife with racial inequality — faces a billion-dollar budget deficit.
Fighting racial progress in Louisiana
The NAACP filed the federal lawsuit over judicial voting districts in Louisiana — Terrebonne Parish Branch NAACP et al. vs. Jindal et al. — in 2014. It sought to change the parish's existing at-large voting system for its five judges to a district system in order to create a district with a majority of non-white voters. There have been similar racial discrimination lawsuits over at-large judicial voting districts in other states including Alabama and Texas.
According to the latest U.S. Census Bureau estimates, Terrebonne Parish is 71 percent white, 19 percent black, 5.9 percent American Indian and 5 percent Hispanic. In that majority-white jurisdiction, a black candidate with opposition has never been elected as a judge on the parish's courts. (A black judge who was elected in 2014 ran unopposed.) Yet a white sitting judge who had been suspended from the bench for attending a Halloween party wearing blackface, an orange prison jumpsuit, handcuffs and an Afro wig was subsequently re-elected under the at-large voting system.
However, Louisiana voters have elected black judges to other state courts — including the Louisiana Supreme Court — in district-based races.
In his August ruling in the NAACP's lawsuit, U.S. District Judge James Brady reviewed the history of legislative efforts to create a black judicial district in Terrebonne Parish, noting that the effort failed at least six times between 1997 and 2011.
"Taken as a whole, this timeline shows discriminatory intent," said Brady, who pointed out that local white officials "originally wanted an additional judgeship, but when black advocates requested that the new judgeship be elected from a sub-district, this request was withdrawn."
Terrebonne Parish voters won't be electing judges again until 2020. In a case like this with no election looming, it's typically left to the legislature to address the problematic districts, Aden said. Following the court's issuance of the liability decision, state lawmakers come up with a remedy and then the court orders the parties to implement it. It's at that point where any appeal usually comes in.
But here the defendants represented by HVJT are seeking to appeal following the liability decision and block the remedial process from proceeding. As John DeSantis wrote in an opinion piece for the Houma Times, the defendants are essentially saying that "the judge's request for solutions to the problem amounts to an order that requires an emergency intervention by the Fifth Circuit U.S. Court of Appeals."
That Landry would take such an action isn't altogether surprising to voting rights advocates. The former U.S. representative for Louisiana's 3rd Congressional District was an activist in the conservative Tea Party movement, whose leadership has supported limiting voting rights. But they're taken aback that Edwards — who's had a contentious political relationship with Landry over various matters including the power to hire private law firms — hasn't distanced himself from an appeal that shows hostility to expanding voting rights.
"It was on the votes of black people in this state that the governor got elected," Aden said. "But so far in this litigation, [Landry and Edwards] have moved together."
Defaming voters in North Carolina
Since Louisiana began working with HVJT, the firm has become embroiled in fresh controversy in North Carolina.
When SCSJ initially filed the defamation lawsuit in February on behalf of voters wrongly accused of fraud, it named as the sole defendant William Clark Porter IV, a committee chair for the Republican Party in Guilford County, North Carolina. The suit accused Porter of filing post-election protests with his county elections board that contained inaccurate and defamatory statements about four voters, none of whom had done anything improper.
In June the court denied Porter's motion to dismiss the complaint, and the plaintiffs proceeded with discovery, deposing Porter in July. As a result of information it got from Porter, SCSJ filed a motion earlier this month seeking to add HVJT to its lawsuit along with four HVJT attorneys whose names appeared on the questionable voter protests: Erin Clark, Gabriella Fallon, Steven Roberts and Steven Saxe.
SCSJ is also seeking to add to the lawsuit the Pat McCrory Committee Legal Defense Fund, which paid HVJT almost $87,000 in the two months following the election. In addition, SCSJ wants to turn the lawsuit into a class action on behalf of all North Carolina voters falsely accused by the defendants of committing voter fraud in the 2016 election.
"Based on information obtained through discovery, Plaintiffs believe that these entities and individuals were responsible for facilitating a statewide scheme to invalidate the results of the 2016 Gubernatorial Election and maliciously or recklessly defamed voters across the state to achieve that end," SCSJ's motion states.
While no hearing has been scheduled yet, SCSJ spokesperson Dustin Chicurel-Bayard said one could take place as soon as next month.
In Louisiana, meanwhile, the NAACP has filed a motion with the 5th U.S. Circuit Court of Appeals to dismiss HVJT's appeal, arguing that it's not the right time for an appeal. The group plans to oppose any attempts by the defendants to halt the remedial proceedings.
And in Virginia, voters will head to the polls on Nov. 7 to choose between HVJT's managing partner and Democratic attorney Justin Fairfax for lieutenant governor. A recent poll had Vogel — who's been accused of a racially tinged attack on Fairfax, who if elected would be only the second African-American lieutenant governor in the state's history — trailing by a 46-42 margin.