LA case set to redefine reapportionment law

Louisiana will find itself at the epicenter of reapportionment jurisprudence, the U.S. Supreme Court signaled this week.

The Court essentially scheduled hearing Robinson v. Callais, consolidating two cases. Two years the Court decided a case, the Milligan decision, that elevated race as a primary consideration over others in reapportionment, relying on past interpretations that didn’t explicitly do so. That framework was used in the Louisiana Robinson case to justify enjoining, without a full trial, reapportionment of congressional districts that didn’t include two majority-minority districts of the state’s six on the basis that black population proportion roughly be reflected in district demographics.

The state responded by drawing a new map, but creating a congressional district that made race the obviously dominant criterion, in violation of the law and past Court decisions. A special three-judge panel ruled as such in the Callais case. The new combined case, where the Robinson plaintiffs and the state, which claims all it wants is clarity in how to proceed, have sued the Callais defendants, allows the Court to evaluate the decision throwing out the two M/M map.

The Callais defendants asked for the Court to reaffirm and remand the decision, which it would have done had it wished to follow a predictable and worn path: it would have declared the current map unconstitutional, but then open things up for another two M/M plan that still gave race priority over other factors, but less egregiously so. That would set the stage for continued conflict.

Instead, the Court’s taking up the case shows it wants to change the paradigm. The question is in which direction. It could be in the direction of further baking in the idea that race becomes a fixed, permanent, and paramount criterion, even to the point it skirts against the law that explicitly states nothing guarantees proportionality between district demographics and population, by rejecting Callais and its three-decade-old basis.

Or, it could take its cue from the Kavanaugh concurrence in Milligan that invites reconsideration of race as a criterion, arguing it is timebound. That not only would toss the present two M/M map but also make any future two M/M map tenuous and increase considerably justification for a one M/M map much like the one rejected in Robinson that stood up well under traditional principles of reapportionment, such as preserving communities of interest.

Oral arguments should occur in the spring. A decision likely will come by the end of June. It almost certainly will have an earthquake-like impact of reapportionment.