With the resurrection of Louisiana’s 2022 congressional map or something extremely close to it looming, it’s time for the desperation heaves from special interests vying to bolster Democrats’ chances in the U.S. House of Representatives.
Over the past week or so backers of a two majority/minority lineup, out of six total districts, in the state have a pair of defeats, beginning with the declaration by the three-judge panel for Callais v. Landry trying the map created earlier this year that contains two M/M districts that this violated the Equal Protection Clause of the 14th Amendment. Then these supporters were told the Legislature will get first crack at drawing a new map while a parallel track would operate with parties submitting maps from which the panel could choose if the Legislature didn’t act by adjournment Jun. 3.
The latter setback added insult to injury. As legislative rules don’t permit the chambers to take up a bill this late – the deadline for introduction was over two months ago and substitution rules demand a related bill already introduced present but with the withdrawal of the only one filed dealing with congressional reapportionment none now exist – the Legislature really can’t act, guaranteeing a court-drawn map. And the way the decision was made, it all but guarantees a single M/M map would be chosen by the panel that dramatically reduces chances of Democrats to win another seat among the state’s delegation.
The Callais plaintiffs almost certainly will forward such a map, and the defendants as certainly will present a two M/M map. That there will be three versions of the latter: the state’s, the Robinson v. Landry plaintiffs’ whose case preliminarily enjoined the two M/M 2022 map, and the Galmon v. Landry plaintiffs’ whose case was consolidated with Robinson, as the plaintiffs in the 2022 case succeeded in being named intervenors. There actually is another map up for grabs, filed amici by New Orleans-area academicians that create a two opportunity-district map (that is, two districts that have a black plurality but not majority) that claims it favors neither party but which would give Democrats an advantage and one of its authors is a regular contributor to organizations that campaign on behalf of Democrats.
Yet the panel, whether unanimously, is extremely likely to favor a single M/M district that will be the 2022 map enjoined in Robinson, or something almost identical, for three reasons, beginning with the fact that the panel had a trial to invalidate a two M/M map on constitutional grounds while the negating of the single M/M map did not feature a trial on the merits and concerned statute. In that latter instance, all the court did was prohibit use of the 2022 map on the suspicion the plaintiffs would suffer harm otherwise. In other words, the preliminary injunction against the 2022 map was a much weaker condemnation, if not part of an incomplete process, than that against the 2024 map.
In part, and this leads to the second reason, this was so because the 2022 case tried to do something no court had yet ventured: order drawing a two M/M map where no existing jurisprudence backed that approach. The operative language does not mandate that in a situation like Louisiana’s that the assumed failure of a single M/M map requires the drawing of a two M/M map, even though the judge in that 2022 case not only demanded that as a solution but also was on the verge of doing it herself until stopped by higher courts.
Indeed, even as a Fifth Circuit Court of Appeals panel on review allowed her preliminary injunction, which to prevent requires that the defense show a strong possibility it would win on the merits so as not to cause serious harm to the plaintiffs, to stand it did so only because of time constraints – to get new lines drawn in time for smooth administration of elections – while judging the plaintiffs had much to prove if they were to prevail. In other words, the 2022 decision was rushed, untested, and really requires a full trial if not further review to invalidate the 2022 map, whereas the 2024 map had the benefit of that trial and stands on established jurisprudential ground – the 1994 case which invalidated for the same constitutional reasons a map not at all dissimilar to the 2024 map.
Finally, the timeline dictates an off-the-shelf map be used. At the trial and in filed documents, elections officials argued May 15 was the deadline for a new map to circumvent administrative hurdles. But in 2022, they argued for a later time, the end of May, and even the Fifth Circuit panel then as late as Jun. 9 believed the state could implement an entirely new map without significant disruption to elections procedures. So, Jun. 4 (with an election day three days sooner than in 2022) the Callais panel didn’t consider this too burdensome – especially if it’s not a new map involved, but an old one, the 2022 map or something nearly identical to it. The plaintiffs extremely likely will present just such a map for consideration.
The Robinson and Galmon intervenors can see this coming, and thus some of them rushed an appeal to the U.S. Supreme Court to stop it, alleging defects in the decision. Likely the Court in some form will call this premature if not wanting, at the very most freezing things where they are pending future review. Logic would dictate the Court also give leeway to the Legislature, and if so then the panel-drawn map becomes that map that would be locked in if the Court decides to halt everything – a map that both doesn’t make the mistake of the invalidated map and is readily available, pointing to the 2022 map or extremely close to that the data for which elections officials already have and without much trouble can reconfigure things utilizing it.
Anything can happen when the courts get involved, but the dynamics of the decision, the scheduling of the remedial phase, and the record of the Robinson case suggest the scenario above is by far the most likely to play out – so Louisiana congressional elections in 2024 will look very much like those in 2022.
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