A recent Supreme Court ruling clarified why the Court allowed Louisiana fall congressional elections to continue under a map declared unconstitutional, and increased the chances this will be the only such election this decade that will have a two majority-minority district map.
In Alexander v. South Carolina State Conference, the Court ruled that a congressional map that otherwise didn’t violate traditional principles of reapportionment, such as compactness and contiguity of districts, did not have to have the proportion of M/M districts somewhat equivalent to the proportion of minority race (almost always black, but sometimes others) residents in the state if the legislature wished to draw districts to maximize partisan advantage even if incidentally related to racial division in voting. This launched panic among leftist and far left commentators because it signaled that in reapportionment disputes the Court no longer would permit the left’s and Democrats’ shadow agenda to remain in the shadows.
That is, those forces try to gain partisan advantage in reapportionment by equating maps that give them that as necessary to prevent racial discrimination, made possible because for the past half-century blacks typically have voted overwhelmingly for candidate of the left, almost always black candidates. This has been tolerated because courts for decades had made the presumption that racial prejudice against a minority group had to lay behind any reapportionment decision that did not draw district majorities roughly proportional to that group’s proportion in the population, and so to do this required satisfying certain criteria that didn’t include partisan advantage as a mitigating factor.
But with this most recent decision, not only does partisanship become a mitigating factor, it becomes the base assumption that henceforth challenges to maps must demonstrate doesn’t apply in order to be successful; so, now it’s not a matter of the defense disproving that race influenced the map-making process, but that the plaintiffs disprove partisanship didn’t play a role. Or, another way of looking at it, it short-circuits reliance on the Voting Rights Act by sending claims first through the Fourteenth Amendment, which the judiciary (after decades of dancing around the question) has determined doesn’t address partisan gerrymandering.
That well may have an impact on Callais v. Landry, which dumped the two M/M map Louisiana had offered up to replace the one M/M map put on preliminary hold by another district court, because that other court said the state’s population of one-third black-identifying needed to be reflected as two M/M out of six districts. Even though that case has declared the two M/M map enacted earlier this year as unconstitutional and speedily enough to impose a remedy that may have been a one M/M map, citing previous cases the Court said it was too late to switch to a one M/M map with fall elections looming.
At the time, the left seemed somewhat perplexed at why that invocation was done at the behest of the six Republican-appointed Court justices and opposed by the three appointed by Democrats; after all, this locked in a two M/M district map when a one M/M map might have been the product of continued lower court scrutiny on a fast track. It couldn’t see, or perhaps couldn’t admit publicly, that this meant the Court would use this case over the next year to review and circumscribe the Voting Rights Act insofar as it has been interpreted to give race a privileged position in evaluating the legality of plans.
Now we know exactly why: the Court majority – the same one that stayed Callais against the same minority that objected – was days away from reconfiguring the precedence of partisanship and race in the scheme of evaluating claims about maps. It didn’t want the lower court to make decisions without the input of Alexander or even have that opportunity, as it has become clearer now that the Court wants to have a say in this matter. Indeed, not only could Callais become invoked as part of a case, if not the case, that invalidates the part of the VRA that is called upon to elevate race above all criteria, it could (if Assoc. Justice Clarence Thomas has his way) junk the entire law.
(The whole reliance of race as proxy for partisanship may have had its run anyway. With Republican former Pres. Donald Trump for this fall sloughing off minority voters unprecedented for a Republican candidate in over six decades, VRA arguments about black but especially Hispanic solidarity in preferred candidacies become less convincing to elevate race’s status in reapportionment and adds fuel to Assoc. Justice Brett Kavanaugh’s hint to bring a case that results in declaring this impact of the VRA timebound.)
So, the far left has gone ballistic because it knows it no longer can dress partisanship up as anti-racism to win rulings favorable to increasing the number of Democrats in elective plenary offices. Instead, it has to win elections, in order to control the institutions that could produce partisan gerrymanders that don’t lapse into racial gerrymandering, which it increasingly has come to recognize it can’t as it is disarmed intellectually compared to conservative appeals and must sustain any success using highly emotive appeals backstopped by institutions that attempt to filter information so as to support leftist agendas.
Ironically, had Louisiana not ditched the 2022 single M/M map that never had a trial over its merits it could defend much more easily that map today and it well may have been the one in effect for this fall’s elections. In response, it at its earliest opportunity the Legislature should respond to Callais as it had previously in the similar situation: say the map didn’t withstand judicial scrutiny – in fact, this time as a result of a trial on the merits – trash it, but this time produce a single M/M map based upon partisan considerations and then dare challengers to produce a map without five majority-white districts that doesn’t also tip the scales towards electing five Republicans, as by Alexander.
Ignore the left’s caterwauling over a decision grounded firmly in stare decisis and logic. Forge ahead with a plan to make Louisiana’s congressional districts commonsensical given its demography – a single M/M map – that reflects voter preferences.
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