Why it failed part I: reapportion brinksmanship

One reason the nearly-now-concluded 2024 First Extraordinary Session of the Louisiana Legislature failed was Republican Gov. Jeff Landry and the GOP-supermajority in each legislative chamber scored an own goal in congressional reapportionment that, instead of ending litigation, only will increase it with them in a weaker position.

The main reason for the session Landry stated as congressional reapportionment, in response to a Middle District of Louisiana court case where, at present, the presiding judge said that unless the state acted to change its current distribution of one-out-of-six majority-minority districts, in a state where the population is about a third identifying as black, a trial on the merits of the existing map would occur and likely end with the judge voiding it and imposing her own plan. That configuration likely would have followed closely the preferred plan of the special interest plaintiffs which would have created districts more in violation of traditional principles of reapportionment than any from the past 30 years which almost certainly would see GOP Rep. Julia Letlow ousted in favor of a black Democrat.

Landry and his two main water carriers for his plan SB 8, its author Republican state Sen. Glen Womack and House and Governmental Affairs Committee Chairman Beau Beaullieu, surrendered to this viewpoint of judicial inevitability. Braying over and over that it would be better to pick their own poison, SB 8 capitulated to the two M/M scheme but instead reconfigured districts to put Republican Rep. Garret Graves at risk, who is on the outs with Landry by working behind the scenes to put up an opponent against him in last year’s election and with other members of the state’s GOP congressional delegation because he worked against the eventual process that brought on a Louisiana Speaker of the House.

They and the GOP majorities that passed SB 8 didn’t need to do any of this: with at least two contestable avenues that could have had higher courts overturn the extant ruling – that the basis of that decision was ripe for reversal because of the Kavanaugh concurrence, which the state actually is employing to defend itself in a similar suit concerning the state’s legislative districts, and because of circuit court disagreements, one of which came from the Fifth Circuit’s handling of the case about the use of a private right of action. Indeed, there wasn’t even an imperative under law, despite the assertions of Landry, Womack, and Beaullieu as well as legislative Democrats and the plaintiffs, to create two M/M districts, as not only does Section 2 of the Voting Rights Act instruct that it does not require the proportion of M/M seats to match roughly the racial distribution of the population, but also as no court in the country has ruled that a plan that didn’t create roughly equal proportions had to do that, with the operative language from a panel of Alabama-based circuit and district judges used to date as the judicial guidepost for cases like Louisiana’s reading “any remedial plan will need to include two districts in which Black[sic] voters either comprise a voting-age majority or something quite close to it” (emphasis added).

But they did it. This leaves the ball in the court of the plaintiffs, who can decide to accept the plan and dismiss the case, or if they don’t then the court likely steams ahead by bringing into effect by fiat their desired plan anyway and neuters the entire effort by the majority of Republicans.

However, if the plaintiffs do accept, then the 2024 boundaries become that plan, and the GOP gives away a seat to Democrats, even if contested by a private party, for the same reason the current boundaries otherwise would have stayed in place if left unchanged: the judiciary is reluctant to alter electoral boundaries through litigation too close to an election. Basically, by this action Landry et al. gave away a congressional seat for Democrats in 2024, as opposed to if they had they passed a plan with a single M/M district and another opportunity district – one that has a plurality-minority population distribution which is the “something quite close to it” – or with two opportunity districts, as HB 14 by Republican state Rep. Mike Echols offered. In that instance, Republicans could have had a shot at winning one or both districts.

Of course, the plaintiffs would have turned that one down. But that then would have led to the state challenging the subsequent imposed map, and on the basis of the Kavanaugh concurrence and no private right of action where the former stands a decent chance of prevailing, that would have overturned the plaintiffs’ victory. And this likely would have happened in 2025, keeping the additional Republican district. Yet Landry and most of the members of the GOP legislative party stubbornly asserted that the district court’s ruling was sacrosanct, set in stone, and had to be followed.

And, not only did the GOP throw away this possibility of an eventual ruling on the merits preserving the current map, the SB 8 map created itself likely is unconstitutional. That was drilled home in testimony to members of H&GA by Paul Hurd, the lawyer who actually was involved in early 1990s legal actions that ended up twice invalidating Louisiana plans where race unconstitutionally played too large of a role in mapping. He estimated that the new M/M district was about 90 percent similar to the one struck down, and similarly infirm.

Expect if the plaintiffs accept the new map for a challenge to it to come on the same basis – don’t be surprised if allies of Graves are involved – and succeed, although it likely would mean a 2024 cycle under SB 8.  If by then another challenge from somewhere else springs successfully the Kavanaugh concurrence, that would invite the GOP Legislature to remap again back to a single M/M – although this possibility itself is a little uncertain because of the evolving jurisprudence around the concept of “retrogression,” or drawing fewer M/M districts than existed before and whether that is constitutionally permissible.

Keep in mind, however, that the state has handcuffed itself in restoring a single M/M map because of the result of the session, and in fact put itself in the absurd position of a GOP governor, attorney general, and Legislature defending a map putting their party at a disadvantage. Meanwhile, the plaintiffs have a decision to make: take a two M/M map even if not their preferred and much like one previously declared unconstitutional for at least one cycle but hope it survives, or turn it down to suffer a one M/M map in 2024 but roll the dice that the Kavanaugh concurrence doesn’t flip the previous decision and they get their preferred two M/M map in 2026.

In summary, absent a desire to ensure Graves rather than Letlow was put at risk even as either being put at risk was far from certain under the current plan or HB 14, there was no good reason for the GOP governor and legislative majorities to give away a congressional district to Democrats as early as 2024. Forcing a court’s two M/M plan imposition in fact would have increased the chances that map would be overturned eventually, compared to forging ahead with a constitutionally-questionable volunteered two M/M plan that may get rejected anyway.

Unless the plot all along was to offer up an infirmed plan ripe for ruin as a way to buy time to the jurisprudential landscape to shift, but that gives away 2024 and is riskier than outright resistance. If so, it was a reckless brinksmanship with a result at present that should discourage conservatives’ hopes for propagation of their agenda in Louisiana that they thought was a slam dunk to come into fruition over the next four years.