Further legal action unlikely to stop fall legislative elections

The citizenry and Gov. Bobby Jindal can breathe a sigh of relief, as the U.S. Justice Department did the expected in approving reapportionment plans of both chambers. Now if other forces wish to waste their own resources on prolonging the inevitable, so be it.

Given the jurisprudence, even with political motivations to decrease Republican and conservative voting strength from the Democrat administration of Pres. Barack Obama, the odds were long that the federal government would step in and try to alter the outcome.
Not only does this save the state money by not having to have a special session to address any forced changes, but also it discourages any potential overrides of vetoes on other legislation by Jindal, which would seem far likelier to happen if legislators found themselves forced into the second special session of the year.

Opponents, essentially black Democrat legislators and their interest group allies, murmur they may seek to stop the approved plans, which increase by two the number in the House seats to 29 and by one in the Senate to 11 of majority-minority districts, utilizing a Section 2 challenge to the Voting Rights Act. Their biggest gripe is that an additional M/M seat would have been created in Caddo Parish, and failure to do so ineluctably has discriminatory impact. But this would be difficult to prove, given the jurisprudence.

In dealing with single-member districts, legal standards both in statute and through court decisions must show districting prohibits protected classes an equal chance to participate in the political process. It does not mean that as many M/M districts as statistically possible must be drawn nor that, looking at the whole area, protected class members must have as many officials elected as their proportion in the population.

In particular, if a plan creates “effective” districts, or ones where protected members wield enough influence that they help determine who gets elected, discriminatory impact (intent need not be established in Section 2 challenges, which may be brought by the federal government or any aggrieved party) legally does not exist. Further, a plan cannot go too far in the opposite direction, creating such slender M/M majorities across a wider number of districts that the effect could result in far fewer minority candidates winning these districts than their actual total. Most crucially, in determining the presence of effectiveness or dilution, and if a minority group succeeds in showing it is large and compact, votes as a politically cohesive bloc, and its preferred candidate usually loses through white bloc voting, the totality of historical circumstances must come into play in determining whether discrimination exists, using not total population as the baseline for this, but voting age population.

Understanding this shows the tremendous uphill battle a Section 2 challenge would face for success. Focusing on the issue of the “extra” seat in Caddo Parish, reviewing Caddo and Bossier Parishes and the eight House districts spread across them (Caddo makes up a large minority of 7, and a small portion of Bossier goes into 10, which together closely the numbers moved out approximate the overall racial split), given the population racial splits (61 percent white, 37 percent black) across them you would expect to have five majority-white districts and three majority black districts, and under the adopted plan that is the case. The extra seat would have produced a 4-4 split, which makes it difficult to argue that absence of that district minority vote dilution occurs. And, keep in mind the VAP totals would shift the split closer to 66-32 or thereabouts.

Further, as a result of carving out the extra M/M district, it creates statewide another marginal such district. Typically, when the proportion of blacks of a district’s VAP falls below 60 percent, this casts doubt on whether a black can get elected because of the history of lower proportional black registration and turnout. The district in question, 5, would have been almost 58 percent black VAP, and factoring in the registration and turnout differentials, it puts black/white actual turnout at about parity. So that tactic may not even succeed if the goal is to elect as many black representatives as possible.

Finally, for a Section 2 suit to have any chance of success, in essence white bloc voting must be demonstrated to occur in the area under scrutiny. Recent election results show clearly this is not the case. For example, in the 2010 Shreveport mayor’s contest, in the new District 5 black Democrat, and successfully reelected, Mayor Cedric Glover got 43 percent of the vote against his white opponent – hardly a sign of white bloc voting in a district that at the beginning of the year would have had whites comprise 72 percent of the VAP, for even if Glover got every single minority vote, this means 21 percent of whites (assuming each group turned out at the same rate) voted for him.

So, in favor of the adopted plan, one could argue it fits better the demographics of its area. In favor of the other, one could assert it has a better chance, but not a large chance, of producing an arrangement that fits better the demographics of the state. But as far as the former having a discriminatory impact as compared to the latter, that seems flimsy especially when remembering the goal of the process is not to elect minority legislators, but to make sure minority voters are not discriminated against. Thus, it’s not arguing that one plan is “better,” but that the adopted one is insufficient and violates the law.

Therefore, if anybody wants to go to the time and use the resources to file a challenge, they can. Whether they did so in a fashion to get it in front of a judge prior to elections and whether any judge would find their argument of discrimination convincing is very questionable.