Controversy surrounds HB
1151 by state Rep. Erich Ponti,
which would replace the current districting system of the City Court of Baton Rouge
from single-member districts, presently constituted with three majority-white
and two majority-black subdistricts, to five at-large elected members. The
imperative behind this bill stems from the threat of a federal court order to
dismantle the system – the power of it do so not entirely clear itself.
Until the early 1990s, in fact
the city did have an at-large system. But as a result of court decisions, the
at-large districting system for judicial elections was decided to be
potentially discriminatory, depending upon certain factors that could have come
into play, and so the Legislature changed the law to create the five subdistricts
(and also did so to several other judicial districts in the state). After 2000,
as the city was nearing a black majority, it drew these extant subdistricts. However,
since then, confirmed by the 2010 census, the city now has a black majority population
even as by the numbers three of these remain majority white and two majority
black in population composition.
Whether that creates an
imperative to change them potentially to three majority-black and two
majority-white subdistricts was made murky last summer when the U.S. Supreme
Court in Shelby
Co. v. Holder essentially said jurisdictions no longer needed U.S.
Department of Justice review of districting plans on the basis of
circumstantial evidence as written into law. Louisiana had been considered one
of those jurisdictions. Now some kind of intent in redistricting or in any
other election administration aspect as to discrimination against a minority
population must be demonstrated for these arrangements to be declared illegal.
One tactic by those wishing
change from the present alignment was to sue the state, in it arguing that the
very process of redistricting by the state, which legally does not require
municipal court systems to investigate reapportionment after a census, is
discriminatory. In 2012, federal District Judge Brian Jackson noted
the demographic changes as troubling, and prompted last October the action
by the plaintiffs.
But it’s questionable just how
much traction such as suit has with the Supreme Court’s decision modifying
understanding of Section 5 of the Voting Rights Act from last summer. This
means just because Baton Rouge has a 55 percent black population with only two
of five minority-majority districts that does not mean this is evidence of
illegal discrimination. Thus, the idea is to use Section 3 of the Act to
demonstrate that by its past actions the state’s majoritarian branches do
intend to discriminate – for example, by failing to redistrict such as in 2004,
2006,
and 2013
by not passing bills for that purpose – that the state is a backslider still in
need of federal government supervision.
Yet last fall Jackson refused to
rule as such while maintaining he might rule against the state in the future,
and the fact that two bills were filed this year weakens the argument further,
because while HB
198 by state Rep. Alfred Williams
that follows the majority of districts being majority-minority playbook, was
defeated in a House committee, HB 1151 not only was passed along by the same committee
but also subsequently breezed out of the House. Thus, even if it’s unsure
whether the federal government, whether by judicial fiat or DOJ action, could
force the state to change, the suit may have leveraged the action even as the
subsequent action has diminished the value of its claim.
However, HB 1151 has come under
criticism from both supporters and opponents of change. The bill would send
Baton Rouge back to the at-large system, which while two decades was seen as a
mechanism by which discrimination could occur but now very likely would not be
judged as such, for the simple reason that with whites as a voting minority,
relying upon solid racial voting where the top five candidates run together and
each voter cast one vote, given equal turnout by the population subgroups,
mathematically white candidates could not win more than two seats. Hence, that
method of election cannot be used as a tool to dilute political power of blacks,
especially given they are not a targeted minority to be suppressed, but instead
the actual majority.
Of course, two assumptions must
hold for this to work out, and one, that of mono-racial voting, long has been
given a special emphasis in this area of jurisprudence. Along with considerable
evidence that it exists in practice, this has special status because a majority
can use appeals to this kind of voting to dilute minority political power by
blocking them with their numerical majorities from winning elections. This is
why the typical solution so often has used where a majority presumably
suppresses a minority is single-member districting where some districts have a
majority of minorities.
The other assumption has sensitized
interests favoring a single member district system because while only 41.7
percent of the most recent registered voters in Baton Rouge were white, in
the 2012 mayor-president race 53 percent of the voters who turned out were
white. This increases the chances that the eventual distribution of judges
might end up under this system three white, two black. This has alerted the
chairman of the Senate
and Governmental Affairs Committee Sen. Jody Amedee to express
skepticism about the bill, chiefly that it may not pass federal muster because
of this possibility.
He should note that the argument
against an at-large system on this basis in declaring adopting it as a form of
discrimination rests on very shaky legal ground. A single member district
system sets up a system that attempts to channel votes to encourage or
discourage dilution of minority political power. But if there are no votes to
channel, where people voluntarily decide, without any impediments to vote
legally or otherwise are imposed into the minority by the majority, whether to
participate by voting, it’s difficult to claim discrimination occurs because members
of the minority disproportionately are uninterested in participating. It’s a
tough argument to make that in order for one group to use an alleged
discriminatory tactic successfully it must rely upon the very object group of
that discrimination to cooperate voluntarily to make this work – and especially
when it is the numerical minority supposedly taking advantage of that tactic
against the numerical majority.
However, what also may be driving
resistance to HB 1151 comes from interests drawing lessons in reverse from over
two decades. The at-large system still may be used in a discriminatory way,
only now in suppressing, whether
intentionally and/or maliciously, white representation among judges. Whether
Amedee is shilling for one or both of those against HB 1151 who want to see
more black than non-black judges and/or who think the bill might reduce that
possibility, or those who worry that the system might produce one or even no
white judges, he and others must understand that at-large judicial systems
exist in plentitude without valid constitutional challenges; for example, in
the state’s 32nd Judicial District (Terrebone Parish; most judicial
districts in the state work this way) where by the numbers a majority-black
subdistrict could be carved out. This is because jurisprudence considers
mitigating factors in establishing these, such as in that at-large
districting can produce greater accountability and responsiveness among elected
representatives than with single member districts, since people from all parts
of the jurisdiction must be considered by the representative (keep in mind that
cases are assigned to any court, not pinned to specific subdistricts), and courts
have ruled consistently against the notion that jurisdictions by definition designed
at-large judicial election systems in order to prevent judges from being more
responsive to particular constituents.
For this reason, Amedee’s
Solomonic idea of have two single member majority-white districts, two single
member majority-black districts, and an at-large position makes for theoretical
mishmash. If a major reason for preferring the at-large system is enhanced accountability
and responsiveness, why arrogate that only to one of five spots? And if you’re
really going to try to run with the idea that an at-large system in a
majority-minority jurisdiction is discriminatory to the majority or minority,
then why introduce any element of it, even if just one seat, at all?
For legislators dealing with this,
they should understand that (1) with last summer’s decision, there may be no
imperative at all to change the system, although that doesn’t mean legal
machinations couldn’t cause inconvenience to the state; (2) an at-large system
is entirely constitutional, especially given that (to use factor a court will
evaluate in determining discriminatory intent) the group historically in power
now in the numerical minority might actually dilute its own political power in
the implementation of such a system; and (3) this system may bring benefits
such as increased accountability and responsiveness and more openness in
competition (because there won’t be this notion that racially-drawn
subdistricts preordain certain candidates with certain characteristics as
winners or losers depending on the district). As such, if any change should be
made, the at-large system commends itself.
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