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."
Johnson was ultimately granted her chief justice seat just a month ago, but the Voting Rights Act that served as her scaffold is insecure. A few days after President Obama was re-elected, the U.S. Supreme Court decided to take up Shelby County, Ala. v Eric Holder, a challenge to VRA's Section 5, which Holder himself calls "our nation's most important civil rights statute."
What Shelby disagrees with is Section 5's "pre-clearance" power, which makes certain states and counties with histories of racial discrimination prove that no disenfranchisement will result from election policy changes. As I wrote earlier this year, Section 5 is a precautionary principle agent that forces election law-changers to prove a change isn't harmful before implementation, as opposed to letting the change happen unvetted and then dealing with any harm later.
Shelby is also arguing that the Section 5 formula they're subjected to is obsolete, given that it's mostly based off data from the 1960s. They believe they are being held to a stricter legal scrutiny than other counties and states that have worse voting problems, namely non-Section 5 covered jurisdictions. The Voting Rights Act was passed in 1965, and it was extended four more times, the latest in 2006 when Congress extended it for 25 years. But Congress failed to update the Section 5 covered jurisdiction formula in that last extension, and hence the law in its current version is unconstitutional, argues Shelby, for impeding on states' rights. (For more on "states' rights" listen to this audio file of Republican "Southern Strategy" architect Lee Atwater.)