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New map death watch starts, but when executed?

That didn’t take long. In fact, what took so long for a challenge to come to Louisiana’s recent reapportionment attempt that probably won’t do much in the short term but could have an enormous impact long term?

Wednesday, a suit was filed against the state for its new congressional map carved into existence at the legislative special session in January. That plan deliberately created two majority-minority districts, with residents who identify at least partially as black holding narrow majorities, out of the six. It replaced a map with a single M/M district in a state where just about a third of residents identified as at least partially black that was under litigation with Middle District of Louisiana judge Shelly Dick, a Democrat former Pres. Barack Obama appointee who showed little patience for the existing map with her threatening to impose her own two M/M map as a result of a rushed ruling in 2022.

That decision became bolstered by the U.S. Supreme Court’s Allen v. Milligan ruling last year, which consented to a special three-judge panel in Alabama, which had a black population of about a quarter, that determined a one-of-seven M/M plan by the state violated Section 2 of the Voting Rights Act. That ruling gave preference to race as a means of reapportionment over other principles such as compactness, contiguity, and community of interests preserved, by injecting race as something defining a community’s interest.

The problem for Louisiana was the solution stumped for by Republican Gov. Jeff Landry and GOP legislative majorities looked awfully similar to the map invalidated in Hays v. Louisiana three decades ago, except drawn with six districts instead of seven. The compliant draws attention to that, perhaps not surprisingly as the same lead lawyer in that case headlines the just-filed Callais v. Landry.

No surprise as well that the filing savages the current map, drawing attention to characteristics that make it no more constitutional, if not even less so, than the rejected map back then. It piles on that the 2022 map so criticized by Dick even fares better than the 2024 map on certain quantifiable criteria of quality. In passing, it makes clear leftist critics of the 2022 map who hypocritically swooned over the 2024 map by that reaction ratify the fact that race had a predominant role in the latter’s construction, which clearly violated Hays’ admonition that race cannot play such a role absent compelling circumstances obviously missing in this case.

Nor does the outcome of Allen look promising to salvage the new map. While the Supreme Court accepted the special panel’s (these are required when an action is filed challenging the constitutionality of the apportionment of congressional districts or the apportionment of any statewide legislative body) reasoning to invalidate the previous one-of-seven M/M plan, it thereupon produced a new map that explicitly rejected a two M/M plan in favor of one also a single M/M plan except a second district was created as a generous “opportunity” district or one with a black plurality (which had a 47 percent black proportion; a previous state attempt to create one at 40 percent the panel turned away). This map’s districts score well on compactness and contiguity, plus separate more communities of interest than both of Alabama’s rejected plans but not to absurd lengths.

By contrast, Louisiana skipped that possibility of having an additional opportunity district (one special session bill would have created two). Instead, it produced the two M/M map which, the text of the complaint illustrates extensively, has severe contiguity problems (multiple districts kept together at some points by borders only 1,500-2,000 yards wide), registers terrible quantified compactness scores, and does substantial violence to communities of interest, slicing up every single one of the state’s major cities between two districts except Bossier City.

Note as well that it was a district court in Alabama, just as happened in Louisiana, that invalidated the former map, because the challenge presented was both one under law (the VRA) and the Constitution (14th Amendment) and the district court, and thus succeeding courts, addressed only the claim under law. The special panel provided the constitutional parameters for a new map once under law the old map was cast aside. The constitutional question of the entire approach wasn’t directly adjudicated and, as Assoc. Justice Brett Kavanaugh noted in a concurrence, ripe for visiting that could tank the Section 2 jurisprudence that declared the old Alabama map infirm and by extension threatened Louisiana’s previous one.

However, the Callais challenge is strictly on constitutional grounds, treading the well-worn path of Hays. This invites not only the virtually-certain binning of the new Louisiana map, but also it opens up the possibility that the Kavanaugh concurrence will be explored in the process that could put Section 2 into forced retirement and actually permit the state to reinstate something like the old map.

Yet that won’t be likely for 2024. As it is a constitutional challenge where the district court – the Western where it is assigned to David Joseph, the district’s former attorney and a Republican former Pres. Donald Trump appointee – plays a lesser role of coordination and handling preliminary matters, giving a bit of a head start, little time remains in a practical sense.

That’s because of the Purcell Principle the Court has enunciated where it won’t change electoral boundaries too close to an election. The forthcoming election calendar suggests that everything involved in invalidating the map will have to be wrapped up by the end of May, in order for the state administratively to revert back to the map just set aside and be ready for the gathering of petitions by candidates to qualify. Four months would be tough.

By 2026, the present map will be history and districts at that time will look more like the map recently shunted aside. It’s far less certain that will be the case for elections conducted this year.

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