The state’s NAACP is threatening
to file suit over the change
made last month that will take an arrangement of six majority-white and
five majority-black districts and make it a five majority-white and four
majority-black arrangement. This happened despite that within the district
black residents actually narrowly outnumber whites, 47.1 percent of it compared
to 46.5 percent.
While the promised suit’s
contents have yet to be revealed, it may well attempt to use an argument
similar to the systemic
racism theory advocated in a suit being heard this week about redistricting
Baton Rouge’s city courts. That is, even if districts are created that have
narrow black majorities, blacks are less likely to be registered to vote and
also even if registered to vote in elections, because past racism has
conditioned them along these lines as evidenced by these lower totals relative
to whites, mono-racial voting patterns of the past, and past district election
results where blacks only have won elections where a majority of those voting
were blacks.
This turns completely onto its
head the long-standing conceptualization that illegal discrimination occurs
when procedures and institutions are in place that deliberately obviate equal
opportunity for all to participate in the electoral process, and replaces that
with the notion that outcomes of elections determine discrimination regardless
of intent behind these rules. In other words, by definition if the results of a
particular electoral system do not produce black winners or majorities on
governing bodies where blacks are the plurality/majority in the population this
illegally discriminates, even if there exist no structural barriers at all to
equal participation in the electoral process. Individual agency as the
translator between data and outcome becomes disregarded in favor of blunt
alleged and assumed malevolent aggregative social forces.
In one sense this line of
reasoning differs from the court reapportionment challenge, more compelling in
this use because in that other case judges do not physically represent citizens
as policy-makers on their behalf, unlike school board members. But it equally
is flawed in conception, and to get a judge unwilling to substitute his own
personal political views for sound jurisprudence based upon the original intent
of the Framers of the Constitution to buy it as a means of overturning the
school board change is made even more difficult by other aspects of the case.
First, the obvious question would
be how this materially affects representation possibilities by race. One
argument could be that one of the new districts, with a decent-sized black
population majority, has a narrower registered voter black majority, and considering
the historic record of blacks voting several percentage points lower in rate,
more whites may show up to the polls than blacks in this district that could
produce a six-white, three-black board.
However, this fails in that it
only incompletely employs the tactic of estimating individual behavior that is
reputed to cause collective outcomes. Only if the same proportions of blacks
voting for black candidates and whites voting for white candidates would this
produce, in the scenario above, a white winner of that district. In fact, mono-racial
voting typically is more tenaciously applied by blacks than whites, as
demonstrated by the outcome of the consolidated government’s mayor-president
race in 2012: despite blacks then comprising 41.7 percent of the electorate, black
incumbent Kip Holden
received 60 percent of the vote. So if an argument would be run that says that
the relevant decision rule for determining discrimination is in not in fairness
of participation rules but in how many turn out to vote, why stop the
statistical estimation with turnout guesses and not include racial voting
metrics as well, which could destroy that argument?
Second, in the aggregate, the
situation has not changed at all. That is, despite a slim black majority according
to the last census, policy-makers still voted to create one more majority-white
districts than majority-black ones, which remains the same. And the proportions
of those districts hardly changes in lopping off two of the total: black
majority districts go from 45.5 percent of the total to 44.4 percent. So how
could this be said to be a tipping point into illegal discrimination when the
courts (through lack of any challenges to this, which also speaks to acceptance
of this by interest groups that purport to act on behalf of black
constitutional interests) already have accepted as constitutional the majority-black
jurisdiction that has fewer majority-black districts that majority-white ones,
when the difference in percentage (not absolute numerical difference which remains
at one) terms with the change barely declines?
Third, the 6-5 vote in favor of
the change had four whites and two blacks on the winning side, while the losers
had two whites and three blacks. It seems that if this were such a blatant
attempt to discriminate against blacks, why would 40 percent of the black
delegation be in favor of this? These voting splits would seem to indicate they
disregarded this as any attempt to foist an illegal arrangement on their
communities and instead saw it more as serving reelection needs.
Any suit not only would have to
overturn the conception of what constitutes discrimination for the past
two-and-a-quarter centuries to succeed, but it also would have to overcome the
reasonable arguments above. That’s not to say that a rogue judge would not
initially award an injunction on the new districts – which might have the
effect of forcing elections along the old boundaries given the election is a
scant three months with qualifying due to start in 11 days unless a Fifth
Circuit panel and/or Associate Justice Antonin Scalia
(the circuit justice for the Fifth, who takes a very dim view on freelancing
about the meaning of the Constitution) stays it – but it seems unlikely that a
ruling against the reapportionment would stand after the exhausting of all
appeals. Whether the NAACP or any other organization will sue and therefore waste
taxpayers’ dollars in such a futile gesture remains to be seen.
1 comment:
It is simply ingenious to criticize a lawsuit that has not yet been filed.
How prescient you are to know what will be in it, and then even better, to absolutely tell what we should think of it.
You are superior, Professor.
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