German Lopez, Vox, November 6, 2018

Louisiana voters during Tuesday’s midterm elections approved Amendment 2, eliminating a Jim Crow law that made Louisiana one of two states allowing non-unanimous juries in felony trials.

In the late 19th century, Louisiana was faced with a new constitutional requirement, after the passage of the US Constitution’s 14th Amendment, that forced the state to include black people in juries. Since Louisiana required juries to reach unanimous decisions, as is standard, this meant a single black person on the jury would have a lot of power — which would weaken white Louisianans’ hold over the state, its government, and its laws.

The state found a workaround. As part of a constitutional convention in 1898 meant to “perpetuate the supremacy of the Anglo-Saxon race in Louisiana,” it enacted a slew of Jim Crow measures. One of them allowed split juries for felony trials, so the few black jurors could be easily overruled by a white majority.

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Louisiana was one of two states that allow split-jury decisions in criminal cases, requiring just 10 of 12 jurors to agree to a verdict in serious felony trials. Oregon is the only other state that allows split juries, but even it requires unanimous verdicts for murder trials.

Amendment 2 requires unanimous decisions for felony trials. {snip} The state’s Democratic Party and Republican Party backed the measure, as well as organizations all over the political spectrum, from the American Civil Liberties Union to the Koch-backed Americans for Prosperity of Louisiana.

There isn’t much data on how non-unanimous juries actually work in Louisiana. But the data we do have suggests a disproportionate racial impact.

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So how did this law — a blatant leftover of the Jim Crow era — remain on the books?

For one, the US Supreme Court has allowed non-unanimous juries, most notably in 1972’s Johnson v. Louisiana and Apodaca v. Oregon. The rulings remain in place today.

The other issue is that Louisiana’s law could be spun to be not about race, but about making the court system more efficient.

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This is emblematic of how systemic racism works in America: Because policies seem racially neutral at face value, they slide under the radar even if in reality they result in racially disparate outcomes. There are all sorts of policies that we know have racially uneven outcomes — drug laws, traffic rules, voter ID requirements — but because they don’t explicitly invoke race, their supporters can argue that racism isn’t their intent.

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