DeSoto case could reshape reapportionment law

Even as the nation charts an uncertain course through a recent dubious U.S. Supreme Court decision where cases involving reapportionment for Louisiana’s Legislature and congressional districts may provide greater definition or even upheaval, the most consequential case of all actually might come from DeSoto Parish.

For over a year controversy has swirled around the reapportionment plan passed by its Police Jury. Originally, it created five majority-minority districts out of its 11, maintaining that arrangement as the parish’s population hardly changed from the 2010 to 2020 census.

Problem was, that masked a shift in population towards the north, facilitated with majority-black Mansfield losing about six percent of its population reducing it to town status below 5,000 residents, and a significant change in the racial composition of the parish that saw its proportion residents claiming any black ancestry fall from 39.4 percent to fall to 37.2 percent. Nonetheless, under that plan M/M seats remained at 45.5 percent where one fewer seat would have represented 36.4 of these.

Worse, the plan deliberately induced malapportionment, defined judicially as where the least populated district’s population exceeds the most by over ten percent, permissible only under unusual circumstances not justified in this instance. Worst of all, it seemed drawn deliberately using race as the dominant criterion, with odd-shaped districts that cracked the small Mansfield community of interest into five different districts – in great contrast to the parish’s School Board map whose members drew much more rationally-shaped and evenly-populated districts that produced only four M/M districts.

This didn’t go unnoticed by some voters, who threatened to sue if this wasn’t fixed. The Jury agreed to that and earlier this year had redrawn a map that eliminated malapportionment but still kept bizarrely-drawn districts with five being M/M. In it, all but one M/M district was below the average (parish residents divided by number of districts) and only one of the rest was above it. And to do this, the number of precincts were more than doubled where the resulting set tended to significant racial segregation in each beyond witnessed in the previous group.

Thus, the citizens sued last month arguing that an equal protection violation occurred because of overreliance on race in the map drawing. Then last week came the Supreme Court’s Allen v. Milligan decision addressing Alabama congressional reapportionment, which maintained that, despite no congressional intent to back that view, the Voting Rights Act dictated that race should have a preferred position above all other reapportionment criteria (known as “traditional districting principles”), because so many jurisdictions in the past had treated it as such.

In practical terms, those arguing the predominance of race in reapportionment demand that plans maximize “opportunity districts,” or basically minority-plurality districts – even where all other reapportionment criteria are demonstrably less suitable in these than those in other plans with fewer such districts, even where this means the proportion of such districts is noticeably greater than the proportion of that minority population in the jurisdiction, and even as the original language of the VRA discouraged that interpretation. Regardless, the decision will embolden them further to inject race into cases such as DeSoto’s.

And into Louisiana’s congressional districts, where 31.2 percent of the state’s population claims black ancestry but only one of six seats is M/M. And into Louisiana’s legislative districts, where 27.6 percent of incoming House districts and 29.2 of incoming Senate districts are M/M. But what’s fascinating is in these cases the plaintiffs’ argument is that present maps have too few M/M districts, while in DeSoto’s case they argue its map has too many.

For it is that case that pushes the maximalist envelope the furthest. Those suing about the congressional districts essentially claim that, even though in the aggregate traditional criteria are given greater consideration in the state’s plan, race as a proxy for redressing alleged but unproven intentional discrimination must override all else. Under the decision – and the Alabama case had much less of a gap between the traditional criteria of its plan and others that added another M/M district than is present in Louisiana’s where alternative plans give traditional criteria much shorter shrift – courts will have to determine whether the additional value now assigned to race that would add a M/M district exceeds the otherwise demonstrable superiority on traditional criteria of the current map that has just one M/M district, given the extant proportions of racial identification in the population compared to proportions of M/M seats among districts.

That presents a relatively nonfungible example – the only option is whether to add a M/M seat. The legislative chamber maps under question provide more fungible options, where the plaintiffs ask for as many as 36.2 percent of House districts and 35.9 percent of Senate districts – the maximum they can draw without having race run absolutely roughshod over the traditional criteria. Thus, courts have much more leeway in picking a seats/proportion number that balances race with traditional criteria, providing more definition to that exact balance that can guide future mapmakers.

By contrast, the DeSoto case potentially presents an example of clear overreach of the use of race and patent disregard for traditional criteria, even when the concept has been given greater strength (for example, black citizens living in communities very separated by a number of factors including great distance and past candidate preferences this ethos still considers to have more interests in common solely because they are black than they would have common interests with people in their immediate communities – even as this view would seem to contradict existing precedent), as it demonstrates the maximalist philosophy to its logical conclusion. A judicial decision here against the plaintiffs would work only if race so intractably separates citizens, which as an argument could be sustained only by declaring government, societal institutions, and the majority’s attitudes are so irredeemably racist that they can impose this systemic racism onto all of the minority, that the solution is to require as many M/M districts as possible to fend that off.

Therefore, if the plaintiffs prevail this case can provide a definitive guardrail to a desire to inflate even more race’s impact on reapportionment in the wake of the Alabama decision. It even could go further, as a vehicle to require more refined analysis of whether a plan discriminates whether intended or if in fact parts of the VRA run afoul of constitutional equal protection. Suits attacking Louisiana’s congressional and legislative plans may receive more attention, but it is the DeSoto case that has the potential to have the most far-reaching and lasting impact on this area of jurisprudence.