Another legal issue to slow LA map challenge

Another joker popped out of the deck last month concerning the increasingly-voluminous and complex litigation surrounding Louisiana congressional reapportionment that likely makes the odds even more certain that resolution won’t come until the 2026 election cycle.

North of the state in the Eighth Circuit Court of Appeals, a three-judge panel agreed in an Arkansas case that only the federal government can file judicial action against maps under Section 2 of the Voting Rights Act. The Louisiana case, which seeks to invalidate the state’s current map with one out of six majority-minority districts in a state where residents claiming some black ancestry make up almost a third of the population, was filed by a private group, not the federal government.

That case, which has ping-ponged between the state’s Middle District and the Fifth Circuit, as part of its deliberation by a separate three-judge panel briefly addressed this issue, known as a private right of action. It conceded that as other jurisdictions had acknowledged the right exists that it would assume the same in this instance.

But that’s no longer the case with the Eighth Circuit panel ruling, and with that divergence now begs U.S. Supreme Court intervention, pending what the entire circuit will do assuming the plaintiffs appeal that way. The Court almost certainly would intervene if a party with an active case, after two circuits with open cases have ruled differently on the issue, asks for that.

However, before that step, Republican Atty. Gen. Jeff Landry, now citing the Arkansas case, has added this to a request for the entire Fifth Circuit to hear the case that, at its last stop, went back to district court to administer a deadline set by the panel of Jan. 15 for the state to redraw the current map. Subsequently, the district court extended the deadline for the state to act to Jan. 30.

Yet even if the entire circuit refuses to hear the case, leaving the private right of action in force, then Landry could appeal to the U.S. Supreme Court and freeze the case. Presumably, the Fifth Circuit would act on the request no later than the first of the year, just prior to the change of administrations to Landry and seating of a new Legislature, which then Landry if turned down then could launch an emergency appeal to the Court, and because of the inconvenience involved to the state almost certainly would act quickly to freeze the case and then potentially decide to hear it over the issue of private right to action.

Or, the Fifth Circuit could hear the case, which in its present form is about how much opportunity and time the state would have to draw a new map, pushing back any resolution. Or, a party to another active case outside the Eight Circuit could ask for that Court to deal with the private right to action issue, which would freeze the Louisiana case.

You get the picture. Given that, practically speaking, a map must be in place no later than the end of the regular legislative session in early June for a fall election without harmful confusion to occur, adding this issue to existing ambiguities in that no existing law or judicial decision as of yet requires Louisiana to draw more than one M/M district which is what the plaintiffs want as a solution and that the decision in the Court case earlier this year that opened the door to giving race preferential treatment in reapportionment also contains the seeds of a constitutional challenge to that means lengthy legal byplay making meeting that deadline virtually impossible.

This tussle is like an overtime professional football game where a team (the defendants, the state) were driving to the winning score but were thwarted on the goal line by the opposition (the plaintiffs, the special interests, when the Court ruled in their favor). But, instead of driving the length of the field to secure the win against a stout defense, the other team wants the officials immediately to award them the win (the two M/M districts) as soon as possible without further hiking of the ball.

With now two serious constitutional questions in play as well as uncertainty over just how preferential a role race can play if that interpretation withstands the questions, you can’t rush matters, which the plaintiffs want so they can impose for them a politically-desirable solution without proper scrutiny. Hopefully, the judiciary will allow for hashing out these questions, which almost certainly would leave present district lines in place for another election cycle.