Looks like that legalistic Hail Mary pass tossed by leftist special interests concerning Louisiana’s new congressional districts isn’t going to come up a winner, no matter what happens from here.
After a rogue district judge, against the run of judicial play, from Louisiana’s Middle District Shelly Dick struck down the state’s recent such reapportionment because its proportion of majority-minority districts didn’t match the proportion of black population in the state, a Fifth Circuit Court of Appeals panel predictably stayed the order. It then set a Jun. 14 deadline to decide whether to make the stay permanent.
Entirely predictable, because four months ago the U.S. Supreme Court handled an almost identical case from Alabama by putting a permanent injunction in place. It did so because a majority wanted to review the case in thorough fashion and wouldn’t do at the time because, according to the Purcell legal doctrine, election deadlines loomed too large to make that possible. In that instance, qualifying for the offices was just about to commence for the primary elections.
The same is true for Louisiana. Within two weeks, qualifying by petition will start, and Dick said she would impose her own solution if the Legislature didn’t follow her dictates just two days before that. State officials testified in the trial about the chaos that would ensue.
But Dick disregarded that warning with a judicial activism on steroids. Her opinion wished away the law on qualifying by petition because of its rare use, and set a deadline not on qualifying but on the actual primary election date, following an example that she said the Supreme Court allowed a holdup of Wisconsin elections with 139 days remaining – not acknowledging this was under state law regarding state legislative boundaries and that its decision tossed out a state judicial decision precisely because it was trying to impose boundaries instead of those chosen by the state’s majoritarian branches. It is a complete apples-to-oranges comparison.
The Fifth Circuit almost certainly will make the injunction permanent, because the February ruling made clear the Court found plausible Alabama’s contention that a multiple M/M district plan relied too heavily on the single criterion of race, and therefore needed thorough vetting as to this constitutional question. However, were the Circuit to rule otherwise and buy the at-least-139-days argument, by Dick’s own metrics what could transpire could be used to turn against the special interest plaintiffs.
Let’s say the stay is lifted, and the special session the starts the next day. During that, an appeal would go to the Court while the Legislature’s Republican majority puts out another plan that differs only slightly from what is law, like not splitting Hammond/Tangipahoa Parish and making up the difference elsewhere. That goes to Democrat Gov. John Bel Edwards who then must sign or veto at the earliest Jun. 21 – three days before qualifying by petition begins and a day before Dick’s manufactured deadline.
Vetoing it actually drags things out, because now it becomes subject to a veto session weeks later, but if Edwards signs it he undercuts efforts to declare this map unconstitutional by demonstrating increased bipartisanship in its making. Regardless, now this invites Dick to step back in. Of course, at any point during this the Court may have stepped in to stay things, and if by then it hasn’t which is unlikely, it has yet another chance to do so if Dick imposes her own map and the state appeals that.
By then, qualifying by petition will have begun and if nothing is resolved before the end of the month, it’s already in that window she found so crucial. Naturally, the response from judicial activists would be simply to push back election deadlines since in their view ample time exists until Louisiana’s general election, which serves as a shadow primary, on Nov. 8. Yet they would run afoul of the Purcell doctrine, which in the Court’s February opinion was made very clear that federal courts could force changes in state practices only under an extremely exacting set of conditions, beginning with one the current case certainly can’t claim: the underlying merits are entirely clearcut in favor of the plaintiff.
So, if in the very unlikely circumstance that the Circuit doesn’t make the injunction permanent later this week, the GOP legislative leadership has a plan to follow that checkmates the plaintiffs even under the extraordinary privileges Dick granted their case. Making sure the rule of law is followed can be messy and time-consuming, but is vitally necessary in a functioning representative democracy, and thus Louisiana taxpayers may have pay up for a special session that changes little in order to secure this.