The rollercoaster ride that is the suit against Louisiana for its congressional apportionment continues, although the real drama for this week came courtesy of parties completely unconnected to the case.
Last week, the U.S. Fifth Circuit Court of Appeals turned down the state’s request – backed by a dozen others who signed on to argue in its favor – to have the entire circuit hear whether the case should be reconsidered in light of its northern neighbor the Eight Circuit’s ruling on a similar case. In that other case, a panel of the Eight Circuit held that plaintiffs, backed by private special interest groups, had no right to intervene in a reapportionment case by taking literally the wording of statute to rule that only the U.S. government could bring such cases against states and local governments.
A Fifth Circuit panel had said the issue didn’t warrant throwing the case out, and after the state had asked for an en banc hearing the federal government had joined the plaintiffs, for the moment seemingly making the matter moot. In the meantime, the district court which officially has the case in its hands ruled that the Louisiana Legislature had until Jan. 30 to make another attempt to draw a map conforming to reapportionment jurisdiction as it stands at the moment, and if it didn’t act then the court would draw the map, but if it did and the plaintiffs protested, a trial over it starting Mar. 24 that could lead to the imposition of a new map if the revised one was found wanting could be done by the court shortly thereafter.
The entire circuit without comment rebuffed the request. The Legislature is expected to meet in special session as soon as legally possible on Jan. 15 and do whatever it will do within a week.
Maybe. Because while advocates for the plaintiffs in the media and elsewhere keep trying to convey the impression that either the Legislature has to pass a plan creating two majority-minority districts as opposed to the present one or the courts will, in reality the question is far from settled. Not only has the previous jurisprudence on the matter not indicated that elevating the use of race as a reapportionment criterion means M/M districts are a necessary solution – opportunity districts, which have less than 50 percent minority composition but (at least indicated by rulings in the related Alabama case where the elevation of the criterion occurred) greater than 40 percent, are a possibility – but also an important constitutional question about whether the elevation of race remains a necessity as a solution has yet to be answered by the U.S. Supreme Court.
And now the private right of action question looms. For even though the Fifth Circuit dismissed it, it remains alive in the Eighth, kept that way when plaintiffs in that case also petitioned for a hearing by the full circuit. It represents a gamble that not only could derail their case, but the one of the Louisiana plaintiffs as well.
If the entire Eight Circuit eventually comes back with a ruling upholding its panel, this virtually guarantees the issue will come before the Court, because two courts of appeals will be in disagreement and the Court dislikes that. The same would happen by the defendants if the Circuit overturns its panel, by their appeal to the Court. Subsequently, the Court could decide in favor of the Eight Circuit panel, and then that case and Louisiana’s become greatly encumbered, as even if the federal government takes over both, the vastly increased demand on resources will slow matters considerably, as well as presenting the option that a change in presidential administrations could mean abandoning these cases.
Even if the Court decides no change in the status of private right of action on these kinds of cases, it will take months for it to decide that, and everything grinds to a halt until then. So, to keep the issue alive in the Eighth Circuit – which was the only real way to advance that case anytime soon hoping the entire Circuit would overturn the panel – risks he lives of almost all reapportionment suits, since almost all are brought by private parties.
Louisiana needs to keep its end of the bargain in settling reapportionment jurisprudence by having that special session and delivering a plan not a lot different than what currently exists, just setting the black resident population of one district somewhat above 40 percent but somewhat below 50 percent (which will have impact of creating another M/M district somewhat above 50 percent, as the existing plans favored by the plaintiffs create a pair of M/M districts barely above 50 percent each that could thwart the goal of electing two black congressmen). If plaintiffs object, then this could provide the perfect test case for the Supreme Court to answer the dual question of whether objective conditions permit continuing to give race preference over other reapportionment criteria and, if so, just how much of a preference.
This will take time and means keeping the current map in place for 2024 elections. But it’s best to get this right and ignore calls by special interests and partisan forces backing the plaintiffs who want to rush things to see their two M/M solution immediately implemented to serve (since almost certainly M/M districts elect black Democrats) a partisan political agenda.
No comments:
Post a Comment