The surprising and flawed U.S. Supreme Court decision in Allen v. Milligan not only might have an impact on Louisiana’s congressional districts, but also could affect its state legislative maps – in both cases not immediately but eventually, if at all.
Recently issued regarding Alabama’s division of seven congressional districts that left just one majority-minority district where about two-sevenths of the population is black – defined as when somebody claims any black ancestry on the census – the ruling said because a number of jurisdictions nationwide had reapportioned on the basis of interpreting the Voting Rights Act as amended and reauthorized to draw the proportion of M/M districts roughly similar to that of the population, that they should despite the actual wording of the VRA that forbids such a practice. In other words, apply bad law long enough and it magically becomes acceptable due to an unsupportable undue reliance on precedent.
Louisiana has a similar situation where its population is almost a third black (31.2 percent) but of its six districts only one was made M/M. It has a pair of cases addressing this presently in the hands of the Fifth Circuit Court of Appeals and an offshoot where a lower court had arrogated its appealed decision against the state to the Fifth Circuit into an attempt to draw its own map. The Supreme Court placed a stay on all of this activity pending the Alabama decision.
From here, several things could happen once the Court releases its stay. The Fifth Circuit could hear the cases and issue a ruling, which whether directly or more circuitously will end up back in Louisiana’s Middle District. Any order to redraw will be appealed, first on the basis of the Alabama decision – which may well succeed given the important differences between that case and Louisiana’s – but if that doesn’t succeed then on other legal or constitutional bases.
These potential appeals have a good chance of success, when all is considered. Constitutional challenges, as brought up by Assoc. Justice Clarence Thomas in his dissent, present a substantial impediment that would invalidate the Alabama case’s interpretation. Even without that, the interpretation could be conditioned by other voting rights statutory jurisprudence, such as extension of Shelby County v. Holder that established the concept of staleness in using race as a criterion for reapportionment, in that instance addressing federal government preclearance – a concept the Court seems poised to invoke outside the sphere of voting rights over affirmative action’s use in college admissions.
It's important to understand the place that race, jockeying with several other criteria for reapportionment among which often is conflict, now has as a result of this decision. The special interest plaintiffs argued that race should matter above all else, or that where M/M districts could be drawn, they should be. The state defending argued that race could have no more prominence among the criteria than any other.
The Court majority decided instead to give race a preferred position, but could not go so far as to make it dominant because that would violate the Constitution. Thus, race could play a prime role in a plan, but if it ran roughshod over other criteria – a sentiment first defined in Shaw v Reno and applied in Louisiana through Hays v. Louisiana and its successors – that was an impermissible use.
So, going forward, courts will have to define instrumentally what is the preferred position that passes constitutional muster (if and until that concept isn’t voided by a constitutional challenge) and then determine its application to Louisiana’s current congressional map. Add to that the Court’s Purcell principle, where it doesn’t want undue disruption to elections, practically meaning that unless a decision to change boundaries doesn’t come at least a couple of months prior to the start of the process for candidates to qualify for the offices in question, the Court will not allow such changes until after the election in question.
When taking this into consideration, and then the separate constitutional challenges that inevitably will appear if the Middle District insists on a plan that includes two M/M districts, it is unlikely that resolution of the controversy will come in time for the 2024 national elections. This makes hasty a call for a special session of the Legislature to deal with reapportionment in case the district court gets insistent, because there’s a long way to go before a final judicial resolution that might well have the effect of affirming the maps in the place will take place.
For the same reason, Nairne v. Ardoin, a case brought shortly after legislative reapportionments became law last year, also has no chance affecting this fall’s election and any impact it would have would not resonate until the 2027 cycle. As with similar cases, it argues that wherever M/M districts can be drawn, they should be, in its estimation adding at least six to nine such House districts to the 29 in the plan to be used first this fall and three such Senate districts to the 11 in the Senate.
Note this means that for the House the plaintiffs argue for 33.3 to 36.2 percent of districts and 35.9 percent of districts in the Senate to be M/M, where the state has just the 31.2 percent identifying with any black ancestry. That would equate to 33 House and 12 Senate seats if, as the ruling may suggest all else held equal these would be the appropriate numbers – +4 M/M districts for the House and +1 for the Senate.
Of course, all things may not be equal. If the state can show resulting districts producing these changes have really convoluted shapes or really butcher longstanding communities of interest while connecting historically disparate ones, the M/M numbers go down. Also note that this doesn’t necessarily mean that fewer Republican-leaning districts would result. For example, House Districts 91 and 98 currently held by white Democrats easily could have one, or even both, flipped into black majority districts without the rearranging of district boundaries to lose any Republican districts. As the GOP will control any reapportionment process in the near future, that’s what would happen.
Thus, when reviewing the outcome from this Court ruling any changes to either Louisiana congressional or legislative reapportionment are at least two election cycles away. Further, creation of an additional M/M congressional district is uncertain, and for the Legislature addition of a small number of M/M House districts that the ruling might produce – again, the whole scheme may be declared illegal or unconstitutional – hardly will change the partisan balance in that chamber and almost certainly would not in the Senate.
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