Potential suit fails on facts, logic, constitutionality
If a bad idea is useful enough once, a thousand uses are not too many, or so the Louisiana National Association for the Advancement of Colored People seems to think in response to the East Baton Rouge Parish School System School Board’s recent decision to reduce its membership from 11 to 9 members.
The state’s NAACP is threatening to file suit over the change made last month that will take an arrangement of six majority-white and five majority-black districts and make it a five majority-white and four majority-black arrangement. This happened despite that within the district black residents actually narrowly outnumber whites, 47.1 percent of it compared to 46.5 percent.
While the promised suit’s contents have yet to be revealed, it may well attempt to use an argument similar to the systemic racism theory advocated in a suit being heard this week about redistricting Baton Rouge’s city courts. That is, even if districts are created that have narrow black majorities, blacks are less likely to be registered to vote and also even if registered to vote in elections, because past racism has conditioned them along these lines as evidenced by these lower totals relative to whites, mono-racial voting patterns of the past, and past district election results where blacks only have won elections where a majority of those voting were blacks.
This turns completely onto its head the long-standing conceptualization that illegal discrimination occurs when procedures and institutions are in place that deliberately obviate equal opportunity for all to participate in the electoral process, and replaces that with the notion that outcomes of elections determine discrimination regardless of intent behind these rules. In other words, by definition if the results of a particular electoral system do not produce black winners or majorities on governing bodies where blacks are the plurality/majority in the population this illegally discriminates, even if there exist no structural barriers at all to equal participation in the electoral process. Individual agency as the translator between data and outcome becomes disregarded in favor of blunt alleged and assumed malevolent aggregative social forces.
In one sense this line of reasoning differs from the court reapportionment challenge, more compelling in this use because in that other case judges do not physically represent citizens as policy-makers on their behalf, unlike school board members. But it equally is flawed in conception, and to get a judge unwilling to substitute his own personal political views for sound jurisprudence based upon the original intent of the Framers of the Constitution to buy it as a means of overturning the school board change is made even more difficult by other aspects of the case.
First, the obvious question would be how this materially affects representation possibilities by race. One argument could be that one of the new districts, with a decent-sized black population majority, has a narrower registered voter black majority, and considering the historic record of blacks voting several percentage points lower in rate, more whites may show up to the polls than blacks in this district that could produce a six-white, three-black board.
However, this fails in that it only incompletely employs the tactic of estimating individual behavior that is reputed to cause collective outcomes. Only if the same proportions of blacks voting for black candidates and whites voting for white candidates would this produce, in the scenario above, a white winner of that district. In fact, mono-racial voting typically is more tenaciously applied by blacks than whites, as demonstrated by the outcome of the consolidated government’s mayor-president race in 2012: despite blacks then comprising 41.7 percent of the electorate, black incumbent Kip Holden received 60 percent of the vote. So if an argument would be run that says that the relevant decision rule for determining discrimination is in not in fairness of participation rules but in how many turn out to vote, why stop the statistical estimation with turnout guesses and not include racial voting metrics as well, which could destroy that argument?
Second, in the aggregate, the situation has not changed at all. That is, despite a slim black majority according to the last census, policy-makers still voted to create one more majority-white districts than majority-black ones, which remains the same. And the proportions of those districts hardly changes in lopping off two of the total: black majority districts go from 45.5 percent of the total to 44.4 percent. So how could this be said to be a tipping point into illegal discrimination when the courts (through lack of any challenges to this, which also speaks to acceptance of this by interest groups that purport to act on behalf of black constitutional interests) already have accepted as constitutional the majority-black jurisdiction that has fewer majority-black districts that majority-white ones, when the difference in percentage (not absolute numerical difference which remains at one) terms with the change barely declines?
Third, the 6-5 vote in favor of the change had four whites and two blacks on the winning side, while the losers had two whites and three blacks. It seems that if this were such a blatant attempt to discriminate against blacks, why would 40 percent of the black delegation be in favor of this? These voting splits would seem to indicate they disregarded this as any attempt to foist an illegal arrangement on their communities and instead saw it more as serving reelection needs.
Any suit not only would have to overturn the conception of what constitutes discrimination for the past two-and-a-quarter centuries to succeed, but it also would have to overcome the reasonable arguments above. That’s not to say that a rogue judge would not initially award an injunction on the new districts – which might have the effect of forcing elections along the old boundaries given the election is a scant three months with qualifying due to start in 11 days unless a Fifth Circuit panel and/or Associate Justice Antonin Scalia (the circuit justice for the Fifth, who takes a very dim view on freelancing about the meaning of the Constitution) stays it – but it seems unlikely that a ruling against the reapportionment would stand after the exhausting of all appeals. Whether the NAACP or any other organization will sue and therefore waste taxpayers’ dollars in such a futile gesture remains to be seen.
Posted by Jeff Sadow at 11:05