LA map likely to stay in force through 2024

The odds now are that Louisiana will have 2024 elections to Congress using the same districts as last year, as a result of a recent court decision, and maybe until 2032.

Last week, a three-judge panel of the Fifth Circuit Court of Appeals put the brakes on the headlong rush Louisiana Middle District Judge Shelly Dick through judicial means has tried to bully the state into having a map with two majority-minority districts among the six districts for its representatives. Earlier this year, a surprise ruling by the U.S. Supreme Court gave race primary status among reapportionment criteria, reviving a case heard by Dick a year earlier that sought to throw out the state’s plan that featured a single M/M district in a state where nearly a third of the population claims at least in part black ancestry.

That original case placing an injunction on the state’s map spawned another to draw a new plan. This new case depends upon the older one being upheld as to whether the stoppage was proper. Republican Atty. Gen. Jeff Landry objected, arguing that the excessive speed imposed by Dick prevented a majoritarian solution that historically the judiciary has preferred, especially in complex and politicized cases involving reapportionment.

The panel noted the history of how Dick scheduled and decided in rapid succession the original case, giving the defense little time to get organized and try to defend (I know; I was part of it) even as the plaintiffs had planned their case for months, then the order to redraw which essentially cuts out the majoritarian branches from input as the judiciary consistently has ruled should not be. That appears to open the way to giving the new Legislature in 2024 a crack at drawing a new plan. Reviews of the panel’s decision could come before the entire Circuit Court and by the Supreme Court, but the effect would be the same in that the time involved would push things far enough in the future to run out the clock, regardless of the outcome.

If the injunction holds. Basically, two wild cards are involved to keep a two M/M plan alive. First, the Court has given a bit more definition to its summer ruling with one this week about the case that has allowed the Louisiana plaintiffs to get this far, the Milligan case involving Alabama reapportionment. That ruling without comment meant Alabama’s latest legislative map that created one M/M and another district with 40 percent black population, based upon a traditional communities of interest criterion, was insufficient to meet the new standard that the proportion of minority population be equal roughly to the proportion of seats that give an opportunity for a minority member to win election, that defined as having a sufficient black population near enough a majority in a district.

The question now is, how near enough? The courts seem very comfortable with an absolute majority, and this latest ruling rejecting 40 percent means it would have to reach higher than that. The existing Louisiana map has the next-highest district below 40 percent, so by that standard the injunction should hold. If so, then the Legislature could draw something closer to 50 percent, and make a very good argument to do so since the plaintiffs’ preferred maps barely crest 50 percent in two districts while doing considerable violence to other reapportionment criteria. In other words, let’s say to boost one district to 55 percent, basically ensuring a black representative elected so long as blacks vote with a high amount of uniformity for a black candidate but which may not happen at only 50 percent, would require an opportunity district at 45 percent that may or may not elect such candidate. To rephrase yet again, a 50/50 plan may result in just one or even no candidate preferred by a near-monolithic vote among blacks winning, but a 55/45 plan will ensure at least one and possibly two.

This would change the current map but without two M/M districts, yet it may not come that because the injunction may not hold. While the decision last year upheld the Section 2 part of the Voting Rights Act – despite the Act’s wording and later judicial decisions that say this doesn’t entitle representation based upon race proportionality – as constitutionally allowing race to have predominant status among reapportionment criteria because majoritarian branches had treated it that way for so long, the decision also suggested that could become stale due to changing times and culture, which was not argued in the Alabama case. In Louisiana’s challenge, it could suggest this, which if accepted wipes out the impact of that decision last year and moots the challenge to the existing map.

That also could happen in other cases in other states. But regardless of whether and where it happens, merely bringing up consideration of any declaration of staleness, or final Court decision on that, will take time. That seems unlikely to wrap up prior to election infrastructure gearing up for elections 13 months from now, and when it does happen if that results in a ruling that time indeed has run out on Section 2 this restores race to equal significance among reapportionment criteria, thereby preserving Louisiana’s existing map.

Possibly eventually the state, and perhaps a couple of others, may be forced into adding an M/M district. But if that is the eventual outcome, that now doesn’t seem likely in time for 2024 elections.