Today we’ll get a better idea whether the retreat forced upon Republican interests in the Louisiana House – apparently inspired by some misleading analysis and misinformation – turns out tactical or permanent, when the House and Governmental Affairs Committee reconvenes to consider the body’s redistricting of itself.
Yesterday, the panel narrowly voted, with the help of Republican state Reps. Brett Geymann and Greg Cromer, to have an additional minority/majority district established in Caddo Parish, bringing the total number of these under the current configuration of HB 1 that accomplishes redistricting to 30, up from 27 currently. This idea was rejected originally by its author Speaker Jim Tucker because he thought it would create M/M districts that may not elect minority members.
Testimony revealed one opinion that said this was not the case, given his best guesses about voting turnout in the 2008 presidential and 2010 Shreveport mayor’s contests. The fear was, because M/M districts of blacks typically have lower turnout and lower voting age populations as a greater proportion of the population than elsewhere is younger than 18, the voting eligible population only questionably might elect black representatives in all black M/M districts drawn in Caddo if four rather than three were present.
However, this analysis doesn’t exactly make for a valid comparison. The 2008 contest featured black turnout nationwide much higher than historical averages because of the presence of now-Pres. Barack Obama on the ballot. In addition, the mayor’s contest featured Mayor Cedric Glover, also black, heading the ballot. The best comparison would have been with the 2007 state elections that actually include the contests for legislative spots, and did not feature on the ballot any prominent black candidate for executive office.
As a case in point, in the primary election in the majority-black districts in Caddo Parish, 38.74 percent of whites voted but only 36.42 percent of blacks did, while in the 2010 primary 27.07 percent of blacks participated in these districts compared to only 22.96 percent of whites – a swing of 6.43 percent. In other words, by using results from elections that are not focused on the electoral unit of interest, this overestimates black participation, while using the more appropriate numbers lends credence to Tucker’s hypothesis (who seemed to realize this himself).
Also, other testimony may have swayed opinions. House Clerk Butch Speer stated that not drawing an available M/M district would trigger U.S. Department of Justice scrutiny, which is one of the agencies available to clear any changes in voting administration under the Voting Rights Act. State Rep. John Bel Edwards indicated that other considerations would not matter to Justice in this determination.
The problem with these statements is that they are irrelevant and misleading. In Shaw v. Hunt, the U.S. Supreme Court explicitly rejected a “Section 5 compliance” defense, referring to that portion of the VRA regarding preclearance. The Court opined that it was not enough to only to argue that there must be maximization of minority opportunity – that is, drawing as many M/M as possible – with that sole justification of trying to avoid Section 5 rejection, when other rational reasons for not maximizing were present. Legally, these other reasons had to be considered or the state was in danger of violating U.S. v. Hays and its related cases, which dictate that race cannot be the predominant factor in redistricting.
While it’s true that all indications suggest that the Obama DOJ will take a politicized and overly expansive view of Section 5, if the New Black Panther case is any evidence, that does not mean the state must make its decisions conform to that view merely to avoid inability to gain preclearance. As long as Tucker can demonstrate that other rational factors played into his line-drawing decisions, a map with 29 M/M districts will be upheld even if the Obama DOJ initially rejects preclearance because others claim 30 such districts possibly can be drawn.
Whether Tucker will do this or choose another route remains to be seen. Leaving it as is certainly would deprive Republicans of another potential seat. While it’s uncertain that having only 29 M/M districts would produce another Republican in the House, it’s almost certain that having 30 M/M districts will not. Essentially, GOP legislators have four choices regarding whether to write off the opportunity for another politically competitive seat.
First, they could just let it go in exchange for working on other plans that may benefit their positions more (do not forget that all are interrelated in terms of deal making). Principally, they could tell Democrats that they’ll acquiesce on this if Democrats will go along with 10 M/M districts in the Senate and a pair of north/south districts for Congress. But the problem with this is that it does not preclude VRA Section 5 or Section 2 (lawsuits after the fact by people with standing) challenges on the Senate or Congress maps. Regardless of what they do with any of these options such challenges, especially under Section 2 as interests outside of the Legislature are threatening to try to leverage the GOP into accepting plans it doesn’t prefer by raising this possibility, so it would be in Republicans’ best interests to go down with a fight.
Second, they could defend the original legislation on the basis of misanalysis. They could point out that, when using the most appropriate statistics, the plan for 30 M/M districts may do as Tucker argues, dilute black voting strength as compared to his plan of 29.
Third, they could defend it on basis of misinterpretation of the jurisprudence of redistricting. They could point out that their plan is legally defensible and the House should not let itself get cowed by potential Justice action, which in and of itself, if based solely on the notion of failure to maximize minority opportunity, is not clearly based on sound jurisprudence regarding redistricting.
Finally, they could adapt the opposing plan to achieve their objectives. For example, outside of Orleans Parish, where because of its heavy black concentration it is impossible not to combine black and Democrat majority districts together due to population loss, Tucker’s original idea had two sets of Democrats thrown into the same district, and one pair of Republicans. The altered plan creates another set of Republican incumbents tossed together. But Tucker simply could undo the pairing of present Districts 81 and 94 in Jefferson and Orleans to restore the original 2:1 ratio (even if the legislators in question affected change as a result) which might actually decrease white Democrat representation at the expense of black since under Tucker’s plan originally two white central Louisiana Democrats were to be put together, but this change might put a white and a black central Louisiana Democrat in the same district.
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