Session to shuffle multiple election fortunes

Republican Gov. Jeff Landry didn’t waste any time in proposing momentous changes to Louisiana’s electoral system that could be in place by February.

As expected, a day after his inauguration Landry called the Legislature into special session to deal with a federal district court request regarding a Louisiana case to redraw congressional district boundaries. The court gave the state until Jan. 30 to map out districts in line with its interpretation of recent Supreme Court jurisprudence that gives race preferential treatment among criteria for reapportionment. While the state has about a third of the population identifying as black, only one of six districts is majority-minority in resident composition.

While the political left sees that as a mandate to create two M/M districts, in reality the jurisprudence allows for a wider range of options that ultimately the U.S. Supreme Court may wish to make more narrow. To ensure best adherence to all traditional principles of reapportionment, the Legislature should alter one of the non-M/M districts into an opportunity district that places the white/black ratio of residents at about 1:1 (roughly 45 percent each), and if plaintiffs to the case that triggered the judicial intervention disagree, they can continue the litigation that means a final map may not be in place until 2026 elections.

If it comes to that. While this case involving congressional districts has grabbed much media attention, the media largely have ignored a similar case challenging the setup of Louisiana’s legislative districts. A decision remains pending on that at the district court level, but most significantly one motion made by the state as defendant is to challenge the constitutionality of giving race preferential treatment in reapportionment matters. That presents a genuine opportunity for the Supreme Court to abandon its recently-articulated standard, which if so moots entirely the case about the congressional districts.

Another set of court decisions also may scuttle the plaintiffs’ case, mooting whatever the outcome of the special session. The neighboring Eight Circuit Court of Appeals is sitting on a ruling that only the federal government may initiate such challenges. The Fifth Circuit, which has jurisdiction over Louisiana, in the case already has ruled against that interpretation in considering the congressional case, but a disagreement between circuits invites Supreme Court intervention that could come out in favor of the novel interpretation. If it did and Democrat Pres. Joe Biden loses reelection, the new Republican president could withdraw Department of Justice participation in the case against Louisiana’s districts, making that challenge collapse.

For these reasons, the Legislature should stick to its guns as best it can in the current legal environment by drawing a map with the single M/M and an opportunity district (made even more solid constitutionally by using that to protect incumbent Republican Rep. Mike Johnson, the Speaker of the House). If that is accepted by the plaintiffs, elections can proceed under that unless the Supreme Court, perhaps using the other Louisiana case as a vehicle, declares the use of race has outlived its use in mapping, whereupon the Legislature could restore its existing map as that better adheres to the traditional principles.

Landry’s call also addressed another issue of reapportionment, that of the state’s Supreme Court districts. The current map suffers from significant malapportionment in population, although jurisprudence doesn’t require roughly equal populations in districts for a judicial electoral map. Nevertheless, Landry made the request that could produce a two M/M map where now only one exists. In fact, five of the sitting justices – three who can run for reelection, two who can’t due to the age limit – have circulated a preferred map that creates such an additional district, which also protects the reelection of those eligible and the continued service of those who aren’t. The other two justices, Republican Scott Chrichton who can’t run for reelection whose northwestern westerly district would be severely dismembered under the new map and no party John Weimer who would lose his seat under the new map, object to that map.

Creation of a second M/M district was floated three years ago, but in the context of expanding the Court by two districts. This would make for a map less violative of the traditional principles than the proposed map which could draw litigation, but it would require amending the Constitution.

For these reasons, the best chance is nothing will happen. Particularly Republican legislators in the most drastically affected districts may deny the simple majorities in each chamber to redraw a seven-member panel, but there may be enough Republicans who wish that change rather than a nine-member panel to prevent the two-thirds majorities needed to cue up the necessary amendment.

All of this maneuvering will create heartburn for potential candidates to take Crichton’s place in the Second District. In particular, the campaign committee of Republican Second Circuit Court of Appeals Judge Jeff Cox  – whose profile was raised by his issuing the majority decision that helped pave the way for a new election for Caddo Parish Sheriff – for the Supreme Court already has sent out holiday greeting cards on his behalf. Under the proposed plan, Cox would be thrown into a projected M/M district unlikely to elect a Republican, while demographics for him are much more favorable in the existing district.

Finally, Landry’s call asked for implementation of closed primaries, unlimited in scope. With the broadness of the language, the most open-ended interpretation would make every single election in the state subject to a closed party primary, meaning those that are currently at-large would have to be replaced with partisan nominations.

It’s unlikely that the Legislature would disrupt hundreds of election systems that feature at-large contests – mainly confined to village elections, but also including some larger municipal and local judicial contests – and allow those to continue without the overlay of party primaries. Excepting these, the Legislature could choose whether to apply closed primary elections to any or all of local, state, national, executive legislative, or judicial races.

Bills likely would implement this on a rolling basis: local elections in 2025, national elections and Public Service Commission spots in 2026, and all other state elections in 2027. Also likely is instead of the cumbersome potential four-stage system used for congressional elections in 2008 and 2010 – primary, primary runoff, general, general runoff – primary runoffs would be dispensed with, and perhaps even general runoffs.

Systems like these would mark a profound shift in the electoral environment. No longer could moderate Democrats masquerade as Republicans, and the half-dozen white Democrats in the Legislature might go in number to zero (with a smaller substitution of white-to-black in local contests). With a registered black electorate among Democrats that likely would exceed two-thirds after all the reshuffling occurs (whites registered as Democrats but who haven’t voted for a Democrat in some time will have to register as Republicans to have any say in closed primaries for their preferred candidates), white moderates will find they can win only as Republicans in a narrow band of racially swing districts.

While specifically this will strengthen Republican rule statewide, more generally it will provide for more coherent policy-making from the Legislature as parties will become more capable of coordinating members with the greater control their registrants have over nominations. This increased coherence will grant greater independence to the Legislature.

Although some moderate Republicans in particular will object to closed primaries as this threatens their reelections, as a result of last year’s elections their numbers have dwindled to the extent that even without them, out of the GOP’s 73 in the House and 28 in the Senate surely 53 votes in the House and 20 in the Senate can be scrounged up to push through the change (and a few black Democrats may defect as closed primaries will allow black Democrats generally to gain greater control over the party). Of the three topics presented for consideration in the Louisiana Legislature’s First Extraordinary Session of 2024, this one promises to have the farthest-reaching impact of them all.