Courtesy of the U.S. Supreme Court, Louisiana’s reapportionment exercise now appears to favor heavily the Republican majorities that control the Legislature, and potentially promises years of litigation and uncertainty about congressional boundaries.
All along, the political process has put the GOP in the driver’s seat, with the eventual endgame pointing to implementing maps that created more favorable districts to their candidates’ electoral fortunes. The most publicized of the bunch has been the congressional map, where five of six such districts appear suited to elect GOP candidates, as only the remainder is a majority- minority district where black would be expected to support a Democrat even as black comprise nearly a third of the state’s population.
A number of special interests have proposed alternatives that produce two – barely – M/M districts, as well as looking at reapportionment of the Legislature and the Board of Elementary and Secondary Education. Knowing full well their political clout falls far short of provoking legislative enactment of these, in their material disseminated about these they have issued veiled threats about litigation if they didn’t get their way.
At best, success through that means, given the law and standing jurisprudence of the Court, is a long shot. Each plan violates existing standards making race the dominant characteristic in their drawings, making a mockery of other valid criteria identified by the Court such as preserving communities of interest and continuity of representation in these, criteria used in the plans that will go forward. Yet with their preferred maps politically having no chance of going through, banking on the courts changing doctrine in their direction is their only hope.
And they got a small boost when last month in Alabama plaintiffs in a similar kind of case won an injunction against that state’s congressional map, approved last year. Somewhat similarly to Louisiana, there only one of seven districts was drawn M/M despite have a statewide population roughly double that proportion.
These situations aren’t quite comparable, in that the Alabama alternative maps (such as the “Singleton” rejected as opposed to the “Pringle” enacted) in terms of criteria such as keeping communities of interest together and incidence of splits in civil divisions and voting districts don’t differ too much in degree, whereas particularly in the treatment of communities of interest the congressional maps headed for approval in Louisiana demonstrably do a better job than the interest group and Democrat-desired alternatives. Still, if the judiciary would prevent Alabama from using its approved boundaries in 2022 elections, maybe it would do the same for Louisiana.
However, the Court dashed those hopes earlier this week when in stayed the injunction. A concurring opinion by Assoc. Justice Brett Kavanaugh presented the reasoning which appeared to sway the 5-4 majority (no majority opinion was rendered): the plaintiff’s (the state’s) argument that the defendants used race above and beyond all other considerations to draw lines was sufficiently valid for the Court to look at the matter fully in the future and, expanding on existing doctrine where the Court refuses to allow judicial intervention concerning elections reasonably close to election deadlines, said given the approaching primary election date of Mar. 30 (not mentioning that candidate filing in these districts was supposed to have closed Jan. 28, four days after the injunction was granted by the district court) left too little time to resolve the issue, meaning the plan has enacted would be used for 2022.
This leaves Louisiana Republicans and Democrats in an interesting situation. If a plan gains approval by the start of the regular session in mid-March, a successful court challenge soon afterwards would leave about three months prior to qualifying and almost eight until the election itself (which technically is a general election, so the extension of the “Purcell standard” is moot). Thus, given Kavanaugh’s interpretation of what constitutes enough time to reject and switch into a new district arrangement, the doctrine might not apply.
Then again, Kavanaugh provided a roadmap to rebut that presumption – except it is a high hurdle: (i) the underlying merits are entirely clearcut in favor of the plaintiff; (ii) the plaintiff would suffer irreparable harm absent the injunction; (iii) the plaintiff has not unduly delayed bringing the com-plaint to court; and (iv) the changes in question are at least feasible before the election without significant cost, confusion, or hardship. However, nothing ventured, nothing gained so under the above scenario the special interests could make the suing attempt.
Note that would require that Democrat Gov. John Bel Edwards not veto, or that he veto and Democrats don’t muster the unanimity needed in the Legislature to prevent an override during the regular session. An actual allegedly discriminatory plan would have to exist for a suit to proceed, but the political blowback of Democrats acquiescing to a plan they have railed against, plus the fact bipartisan approval would have occurred could in the eyes of the judiciary work against Voting Rights Act section 2 discrimination claims.
Unlike with plans for all other elected institutions at the state and local level, where the state Supreme Court would decide and almost certainly to the liking of the GOP, no such backstop exists for a failure to reapportion to the Constitution’s dictate of equiproportional districts.
So, if Republicans held off on this issue until the regular session, that puts them firmly under the doctrine’s ambit insofar as congressional elections if they succeed with their plan. Regardless of whether a legal challenge or if Democrats stymy it absence of a plan, the federal judiciary would have to handle this and given the compressed time frame it likely would fall back to implementation of existing lines for 2022.
Then, for 2024 the GOP leadership doesn’t do anything about these boundaries in 2023 and with chances being a Republican governor takes office by then, this time a map similar to what the special interests and Democrats have protested will get enacted, and the suing process can begin again with the same result. Thus, under this scenario it might be 2026 before things become fully resolved.
That lengthy teeth-pulling exercise, of course, might be circumvented if later this year or next the U.S. Supreme Court tosses the Alabama objection, which could discourage opponents to Louisiana’s plan and have everything sorted out for 2024. Absent some unanticipated and revolutionary change in Court doctrine, Louisiana Republicans will get their preferred congressional map, whether needing continuance of the current as a way station; it’s just a matter of time.
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