Ruling to reinstate LA 2022 congressional map

Barring a legal miracle, Louisiana’s congressional elections this fall will occur with only one majority-minority district using the 2022 map.

That’s the implication of the Louisiana Western District three-judge panel’s decision in Callais v. Landry handed down earlier this week. In a 2-1 decision – with the two Republican former Pres. Donald Trump district judge appointees under the Fifth Circuit Court of Appeals doubling up on Democrat former Pres. Bill Clinton-appointed Appellate Judge Carl Stewart – the court ruled the map enacted earlier this year violates the Equal Protection Clause of the Constitution and enjoined its use That map came about only because the 2022 plan was enjoined preliminarily by a Middle District judge with plaintiffs presumed to prevail on the question of declaring that map in violation of the Voting Rights Act.

The panel majority took the offered layup when the Louisiana Legislature in special session produced a map with an M/M district stretching from Shreveport to Baton Rouge and Lafayette, splitting them all and dismembering Alexandria along the way. At five points it hung together by only a single precinct, and at one point it forced another district to be one precinct wide squeezed on the other side by Texas. It was a district not even its legislative progenitors would admit had any actual commonality other than it had to be M/M.

All of this made it easy to declare the entire map unconstitutional, much less that it didn’t differ a whole lot from a district also as part of a map declared unconstitutional three decades ago, upon which the majority drew. While race as an overriding factor among several traditional criteria for reapportionment can be valid when a jurisdiction otherwise can’t prevent dilution of a definable minority group that votes largely for particular candidates and often against the majority’s preference, that minority also must be reasonably compact geographically. The panel majority observed that the dispersed nature of black residents in Louisiana outside of the southeastern portion of the state didn’t satisfy this condition, and thus the environment wasn’t such that the distribution of the minority outside of that area of the state could be used to permit race to override all other considerations.

In reading Stewart’s dissent, one wonders whether he paid attention during the trial. He bought the defense’s argument – the state plus intervenors in the Middle District case Robinson v. Landry who tried to leverage their case into this one – that political considerations which can be a legitimate reapportionment criterion, in this instance trying to ensure certain GOP incumbents were protected, were at least as important. This treats as if it didn’t exist that the entire reason that politics entered the fray was the exercise came about only because of the imperative to draw a map guided by race, out of the fear the Robinson case would be allowed to enter a remedial phase where the Middle District would impose its own two M/M district map. As the plaintiffs’ lead lawyer noted, politics was entirely downstream of race that negates Stewart’s musings.

Next week, approximately nine days prior to the time Republican Sec. of State Nancy Landry says the state needs to start preparing for fall elections that necessitates knowing the congressional district boundaries, a status conference occurs that should lead to the remedial phase where a new plan gets drawn. The Legislature will be unable to act before then given its calendar and the panel is unlikely to be prepared to put its own plan in place by May 15. That would lead the state to petition lifting the Robinson injunction to use the 2022 map, whether by the circuit or Supreme Court, for this fall.

That will succeed, for a number of reasons. First, Callais speaks to a constitutional violation rather than the statutory violation alleged in Robinson. Second, Callais was a trial on the merits of the 2024 map, whereas Robinson never had a trial but preliminarily halted use of the 2022 map on the belief a trial would show that map defective; thus, that map remains in play as there is merely suspicion that it broke the law as opposed to a determination that its substitute violated the Constitution. Third, although the intervenor part of the defense filed a desperation heave of an appeal to the Court, it will bat that away because there’s nothing new here: the jurisprudence it established in Shaw v. Reno and successor cases, including the Hays v. Louisiana case that looked at the similar district, set clear guardrails that clearly confine this case. The panel’s ruling will stand. (The Robinson plaintiffs also have filed to reopen their case, but that also will be too little, too late.)

Further, whatever comes from the remedy phase itself will be challenged that will permit the 2022 map to linger. Highly likely the end product won’t differ too much from the 2022 map not only because the plaintiffs have priority being on the winning side in establishing the remedy plan, but also because of the skepticism that the majority showed. While not as egregiously using race, other two M/M options that the Robinson intervenors advanced would run afoul of the compactness standard the majority laid out in Callais – which directly rebukes the standard used in Robinson and begs for the Court eventually to intervene after circuit disposition. Keep in mind that the Robinson proportionality argument – if about a third of the state’s population is black, then about a third of its congressional districts must be black – created a standard never affirmed by any other court in a trial.

Scrutiny over that is the course GOP Atty. Gen. Liz Murrill seems determined to follow. Even if miraculously the panel chose a two M/M option, she said she will challenge whatever ruling comes about saying the Court must provide clear standards. Here is where checkmate probably will occur for a two M/M map, because in the operative case that guided the Robinson outcome that led to Callais the Court practically begged for a challenge to the relevant part of the Voting Rights Act on constitutional grounds – which Callais has teed up.

Regardless of whether the Court eventually goes ahead and declares that race cannot be any more preferred than other reapportionment criteria – and from its previous decision-making a majority seems receptive to that – this will take time. The state has to have a map and quickly, and the 2022 single M/M plan jurisprudentially has the fewest warts for this fall, and perhaps even for 2026 depending upon how long the legal machinations to follow drag on. By contrast, the relatively swift movement of Callais that produced a decision before May against the odds means likely five Republican/one Democrat representation of all incumbents this fall.