LA might produce another reapportionment case

Possibly, Louisiana could find itself at the forefront of two attempts to redefine electoral reapportionment over the coming year.

This year, the state faced a challenge to its reapportionment of congressional districts. Although the state’s black population comprises nearly a third of the total, the state drew only one of six districts with a black majority. Given the dispersion of black population statewide, trying to carve two majority-minority districts, with extremely slim majorities only possible, would rupture established reapportionment jurisprudence, particularly the ability of a jurisdiction to keep communities of interest together.

Nevertheless, deep-pocketed special interests sued the state, arguing an extremely race-conscious, results-determined view that, contrary to established jurisprudence, race must take precedence over all other traditional criteria or, more specifically, wherever an M/M district could be drawn to ensure the proportion of such districts was close to if not exceeded the racial minority population that a jurisdiction had to do that. A few other such cases in different states also were launched by largely the same special interests.

The pair of cases consolidated attempting to force this on Louisiana came to a halt when the U.S. Supreme Court took a similar case from Alabama. It will make a decision on this in the first half of next year, whereupon that will be applied to the Louisiana cases.

Now, another potential challenge has surfaced. In DeSoto Parish, its Police Jury this summer reapportioned with only minor changes. The problem was a declining black population parish-wide, but particularly diluted in the fastest-growing northern part, left about 36 percent black population but with five of 11 M/M districts the drawing of which created malapportionment, specifically cracking M/M districts and packing all others.

A recent Jury meeting revisited the plan after 14 citizens threatened to sue over the malapportionment issue. Michael Hefner, who drew the plan, prior to then tried to defend the arrangement by alleging to create only four M/M districts would create “retrogression,” or making worse the electoral clout of minorities with one measure being whether they were likely to elect fewer minority candidates to a public body.

But making such remarks showed him to be a decade out of date, as since 2013 a Court ruling mooted Section 5 of the Voting Rights Act from which the concept of retrogression had been backed. Even then, retrogression was not considered an absolute but contingent of the totality of circumstances.

For the recent meeting, he appeared to have realized this and ran a related argument focusing on one traditional district criterion defining those circumstances, incumbent protection. The desire to keep incumbents in present districts with minimal changes without removing almost all of their present constituents or putting two or more in the same district is recognized as one of several factors a body can take into account in reapportionment. Indeed, existing jurisprudence allows for deviation – both over and under – from malapportionment cutoffs depending upon these criteria.

However, existing jurisprudence states incumbent protection cannot serve as a proxy for race and defendants would have to summon a compelling state interest to override the malapportionment standard of greater than ten percent population deviation from least to most populated district. In isolation, that seems a tremendous constitutional hurdle for the enacted plan to overcome.

The meeting ended without resolution, but with Hefner saying he would move parts around some more. Regardless, it appears impossible to avoid malapportionment by insisting on five M/M districts and it seems no compelling state interest exists to try to rescue any plan with greater than ten percent deviance. Any attempt to dodge this reality looks certain to draw litigation and perhaps send a case to the Court inviting it to clarify standards defining malapportionment relative to other extenuating factors.