Maybe it shouldn’t have been that big of a surprise, if the U.S. Supreme Court eventually will use Callais v. Landry to reduce the prominence race has in reapportionment.
This week, the Court stayed an order by a three-judge panel that declared the congressional map that Louisiana had enacted earlier this year was unconstitutional. That means that this plan, which adds a majority-minority district to the single one in the 2022 map that was subject to litigation then statutorily replaced by this one, will be used for elections this fall.
The panel appeared poised to issue its own map for use if the Legislature, which it would not have, had acted to draw a remedial map prior to its adjournment Jun. 3. By definition, it could not be the invalidated map, and any other options but the revoked 2022 map or something extremely close to it could not have been implemented in time by the state’s Department of State. In fact, although in the case of that preliminarily enjoined map State argued it needed by the end of May, 2022 to have a map to run the subsequent election, this time it declared May 15 was the cutoff despite the very similar situations.
So, the Court majority of all six justices nominated by Republican presidents took the state at its word, and on May 15 issued a stay. In one sense this surprised, both because of the alacrity of the plaintiffs and efficiency of the panel in having the trial and rendering a decision this far out from fall elections, and given the recent historical overview: that when the adverse decision about the discarded 2022 map was rendered, over a month closer to the election, the Court bided its time with the Fifth Circuit first issuing a stay and then over three weeks after the preliminary injunction the same six justices stayed it, on the basis that similar cases were to be (and would be eventually) considered.
But this time, that majority rushed right in, six weeks prior to its action last time, to place temporarily into service the 2024 map – and was opposed by the three justices appointed by Democrats. This would seem counterintuitive: if the majority questioned the constitutionality of the 2024 map, it would seem they might let the process play out at least until the remedial map appeared by Jun. 4, well in advance of their stay two years ago the issuance of which indicated they didn’t see a problem in administering the election at this same point in time. And the minority would have wanted a stay, keeping the invalidated map in place, but instead in a dissent expressed a desire to see the process play out.
These dynamics reveal, in fact, that the 2024 plan is on thin constitutional ice for the majority and is a question the minority wishes to avoid. Notably, even though the panel was brought a constitutional challenge, it decided that question within the realm of existing jurisprudence and statute – that defendants impermissibly used race as a sorting mechanism in map-drawing to avoid dilution of black voting power, but only because it failed to satisfy statute and court decisions around that question, principally over the matter of whether black voters in the state could be grouped in two districts that each are sufficiently large and geographically compact to constitute a majority in a single-member district. Indeed, the panel stated it made no judgment on whether it is possible to draw in Louisiana under present census numbers a two M/M map that wouldn’t violate the Equal Protection Clause, just that the 2024 map did.
That’s the ballpark in which proponents of a two M/M map wish to keep the controversy – they don’t want the entire premise that race has a special status that can override any other principle of reapportionment to disappear. They would prefer the remedial mapping phase devolve into a catfight about whether a plan is compliant with the existing interpretation without any further investigation into the constitutionality of the whole thing.
However, the Court majority has signaled it won’t leave that question alone. Significantly, its stay solely is on the basis of the Purcell Principle – the idea that courts should not change election rules during the period just before an election because of the confusion that it will cause for voters and the problems that doing so could cause for election officials; it made no judgment on the panel’s decision. Indeed, the dissent postulated that it was too early to invoke the principle – which made sense given the majority’s handling two years ago – with the wishful thinking that there was no reason to intervene so early.
Yet the majority disagrees because it seems likely to take up the case, no matter what happens with it, to probe the constitutionality of race’s preferred position in reapportionment. That being its plan, there was no reason to wait to pull the Purcell trigger where delaying in doing so might provoke rushed lower court proceedings. Further, that decision isn’t surprising in that the Court did this – allow a two M/M map declared unconstitutional the decision about which it wouldn’t dispute to be used because of proximity to an election – just about 30 years ago. In that instance, a 1992 two M/M map declared unconstitutional because of impermissible use of race was allowed to be used again because after its revoking by a 1994 two M/M map that latter map also was declared unconstitutional for the same reason while election qualifying already was occurring.
In short, the Court’s stay tells us nothing about what it thinks about the panel’s decision to toss a map based on a racially-gerrymandered district that was very similar to what another panel tossed three decades ago that it never disputed. It does speak volumes that a majority appears eager to visit the issue of whether the Constitution permits drawing of district lines using race as a preferred factor, perhaps using this case as its vehicle to do so.
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