Earlier this month, former
executive director of state Democrats Chris Whittington filed
a suit on behalf of some citizens claiming the six districts created in the
state in 2011 are unconstitutional, on the basis of racial gerrymandering,
meaning they were drawn in order to prevent of blacks to Congress from the
state. Currently, in a state where about a third of the population is black,
five representatives are white Republicans, and the remaining one is a black
Democrat. Without explanation, the suit was withdrawn yesterday.
This briefly saw the light of day despite the fact that,
as the law then read, the U.S. Department of Justice engaged in preclearance of
the boundaries that created only one of six majority-black districts, meaning
that it saw no legal problems with the plan that varied in population by fewer
than 162 people among all and created the sprawling, spill-shaped Fifth
District in the northeast and central part of the state and the streaky Second
District sprinting from parts of Baton Rouge to parts of New Orleans. But the
suit argues that the situation has changed because of this summer’s ruling in Shelby
County v. Holder that said preclearance no longer could be required because
the method by which would determine whether preclearance was judged was no
longer valid, meaning the state could not claim that not having the proportion
of minority-majority districts roughly similar to the proportion of minorities
in the population was justified by avoidance of retrogression, or that minority
representation could be reduced, in explicitly drawing districts that focused
on race.
While some of the suit was irrelevant to the federal question at hand (that part insisting that the
state Legislature did not follow its own principles in reapportionment), in
essence it claims that race was unduly used as a criterion, “the predominant
factor” and “not narrowly tailored to serve a compelling state interest”
(especially in the absence of preclearance) in violation of the equal protection
clause of the 14th Amendment. It asked that a three-judge panel to
convene to figure out new boundaries on the basis of a declaration this is an
unconstitutional racial gerrymander, halting elections completion of this.
The hope, of course, was to
accomplish by judicial fiat what elections deny Democrats: gaining power. As in
recent years electorates at the sub-state level and, with the exception of the
U.S. Senate but that likely to change in a year, state level have elected
substantially more Republicans than Democrats, and those in state government
controlled in almost all states the redistricting process, with Louisiana being
one of them. By engineering a way to increase the chances of Democrat wins for
Congress by hoping for a Democrat-friendly map created by three unelected
judges, that certainly would boost the party’s electoral position in the state,
and every bit helps at the national level as well (perhaps because its elites
actually believe the discredited
notion that the GOP gerrymandered its way to recent House majorities.)
As part of its evidence, the suit
notes the low degree of compactness, or the ratio of circumference to diameter
of the largest circle able to be drawn in it, as an indicator of whether its
shape was motivated by drawing it in a way to include voters of certain
characteristics and exclude those of others. But as experts
have recognized, in states that have unusual boundary features such as the
Mississippi River, compactness becomes a very impure measure to empirically demonstrate
illegal discriminatory intent. It also compared past districts to those
of the present to show retrogression seems to have occurred – but that is an
apples to oranges red herring because there is one fewer district now.
But where the suit really fails is
in assigning so much of the end districting product to racial considerations. Importantly,
jurisprudence is that a jurisdiction need not produce compactness of districts
beyond a low degree, nor try to maximize the number of M/M districts, nor is
making race an important part of districting automatically unconstitutional. That’s
because courts
recognize plenty of mitigating factors in mapping, all of which tend to
work at cross-purposes with each other.
For example, the district in question
can be claimed not to have an entirely absurd shape as face evidence of
discriminatory intent; the courts have upheld shapes of much less compactness.
It also can be demonstrated to represent a common community of interest, even
with its meandering shape: those of metropolitan areas whose communities are
shaped by their placements near the Mississippi River, with the distance
between the farthest reaches of the district smaller than any of the other five.
Most crucially, the state can argue that political considerations were at least
as important as race: drawing to maximize the chances of electing Republicans,
where partisan gerrymandering is completely constitutional. Finally,
alternatives, unless they were drawn
specifically with race in mind that would produce much less compact shapes,
would not substantively increase black representation in Congress.
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