For his job, Democrat Gov. John Bel Edwards defeated Republican former Sen. David Vitter. Two years later, it appears Edwards has found a way to add insult to injury against the politician he sent into retirement.
In the Senate, Vitter railed against a practice used by President Barack Obama’s administration known as “sue-and-settle.” It allowed Obama to short-circuit the constitutional requirement that Congress makes law.
On certain issues, where Congress would not let Obama have his way, a special interest friendly to Obama’s views would sue a federal agency to get a favorable regulation, with the administration’s tacit approval. Instead of defending existing policy, the agency would capitulate, allowing the court to force Obama’s and the group’s desired end into regulatory being, ignoring Congress and its intent.
This was win-win for Obama and the group, but that made the American people losers by subverting their will and the Constitution. Fortunately, President Donald Trump’s administration has declared an end to this end-run, undoubtedly pleasing Vitter.
But Edwards has revived the practice in Louisiana with a case about judicial districting in Terrebonne Parish. Political allies of his sued the state, seeking to replace the at-large electoral system used to pick the parish’s five judges with a sub-districting system employed in a dozen areas across the state. This arrangement typically uses race to design sub-districts, where only the area’s residents may vote among a slate of candidates who qualify for that seat. Once elected, winners have jurisdiction anywhere in the larger judicial district.
As the district until 2014 — after filing of the suit — never had elected a black judge despite a black population of around 18 percent, the plaintiffs argued the system deliberately caused discrimination — but not by voters. Instead, they blamed the Legislature and state executives who created and administer the election system, saying these officials acted contrary to the law and Constitution.
The plaintiffs found a sympathetic ear in the late U.S. District Judge James Brady, who bought the absurd idea that a significant number of white voters reject black judicial candidates mainly because of race, and the ludicrous presumption that a majority of legislators and key state officials used that tendency to engage in a conspiracy to prevent electing black candidates. Further, election jurisprudence doesn’t demand that elected judges represent constituencies.
An appeal to the U.S. Fifth Circuit, as envisioned by GOP Attorney General Jeff Landry, would see Brady’s decision laughed out of court. But last month Edwards stepped in for reasons not made public; until then, only Landry’s office had litigated for the state’s defense of the existing system.
In contrast to the attorney general’s office that argued Brady erred in perceiving a legal violation, the Edwards administration asserts the Legislature could fix the problem, in essence admitting the state breached the law and Constitution. That view runs interference for the plaintiffs, creating division that increases the probability that whichever judge takes over from Brady might declare an impasse in the dispute — or, decide to adopt the judicial solution the plaintiffs prefer, that then only an appeal could overturn.
Thus, Edwards engages in his own version of sue-and-settle that makes more difficult and costly the process of overturning a bad ruling. He and the plaintiffs could prevail if the subsequent dissension and delay, along with his lobbying, pressure the Legislature to adopt unilaterally the plaintiffs’ desired solution.
A Gov. Vitter never would have pursued the variant of sue-and-settle as Edwards has on this matter. Edwards’ use of it must have Vitter spinning in his political grave.
Jeff Sadow is an associate professor of political science at Louisiana State University-Shreveport, where he teaches Louisiana government. He is author of a blog about Louisiana politics, www.between-lines.com, where links to information in this column may be found. When the Louisiana Legislature is in session, he writes about legislation in it at www.laleglog.com. Follow him on Twitter, @jsadowadvocate or email firstname.lastname@example.org. His views do not necessarily express those of his employer.