After travelling a convoluted path, bills to redistrict the Louisiana House and Senate pretty much ended up where they started, while some less-than-honest legislators continued the spadework to throw a spanner into the process to satisfy their political agenda.
HB 1 and SB 1, the chambers’ plans, passed by large margins in the other chamber and now go for promised signature into law by Gov. Bobby Jindal. Neither is much different from their versions originally introduced, making necessary boundary shifts due to population and increasing the number of minority-majority seats that gets the overall proportion of such districts closer to, but not equivalent to and still below, the proportion of the state’s black population. Besides that goal, chamber leaders said the plans also focused on incumbent protection.
These outcomes are perfectly consistent with jurisprudence regarding redistricting and as such the plans suffer no constitutional deficiencies. Yet some black Democrat legislators, until the very end, either ignorant or disingenuous about the law, kept insisting otherwise. Understanding their political motives explains why.
Democrats in Louisiana are experiencing a historical moment, their party having reached a tipping point where it is becoming a majority-black institution, both in terms of the party in state elective offices and the party in the electorate (while the party organization still is controlled by whites, it is the least relevant of these and that will change within the next couple of years). As such, they wish to flex political muscles to satisfy their agenda, one item of which is to grab as many M/M seats as possible by going around majoritarian institutions in government through use of other means regardless of the turmoil it may cause.
One path might be through Section 5 of the Voting Rights Act, which mandates that Louisiana must submit these kinds of plans to the U.S. Department of Justice for preclearance. With the department already showing signs of politicization by its failure to prosecute and subsequent whitewash of the reasons for rejection of the New Black Panther voter intimidation case, they might think DOJ willing to buck clear U.S. Supreme Court principles that demonstrate the satisfactory nature of the passed plans and reject them.
However, this might be too blatantly political. Rejection rates by DOJ for the past two decades are close to zero so to reject these plans – especially when the reason on which it would do so would so clearly violate the Court’s Hays v. U.S. standard that makes unconstitutional drawing lines primarily on the basis of race – might be too risky. Louisiana then could take the other preclearance option in the VRA, through the U.S. District Court of the District of Columbia, and other states, warned by this, could do the same. This would make impotent any DOJ influence on these kinds of matters.
More likely would be a challenge under Section 2, a suit. Black Democrats already have as much as admitted they are trying to set things up for this, although then it is a race against time. Whereas failure to get DOJ approval would be known by the middle of June (60 days permitted by law to review), whether they could entice a favorable ruling out of a district court before elections is uncertain. Further, they would have to wait on DOJ before seeing if they had to file suit.
But even if they find a way to derail elections, they can’t win. It will take time and effort in getting to the Court, but, absent a major, unexpected shift in jurisprudence, they will lose, so it might seem tremendous commitment and disruption is not worth any propaganda points they might win along the way. That might be, if it weren’t for the peculiarities presented by Louisiana Revised Statutes 18:1942 and related jurisprudence
This law states that if preclearance is not obtained in a timely fashion, elections are postponed, with the implication that currently-elected legislators continue in office. While explicitly not addressed in the LRS, a court order stopping elections would do the same. Thus, there’s no penalty for being obstructionist no matter how frivolous the reason and how much aggravation it causes for the state – an especial boon for those black Democrats term-limited or threatened to be thrown into districts together. This tactic extends their terms, if nothing else.
So these legislators have every incentive to push their spurious case as far as possible, with no real penalty to pay in order to demonstrate their power and possibly to extend their stays in Baton Rouge. Even if it’s a longshot, the costs to them are none so they can only win by playing. Never mind, of course to them, that Louisiana’s citizens would pay immensely for these politicians’ pleasure by enduring the conflict and uncertainty all of this would bring.
Posted by Jeff Sadow at 08:35