It looks increasingly likely that Louisiana again will lead the policy-making field, this time through a decision on the U.S. Supreme Court case Louisiana v. Callais.
For decades seldom has the state participated in ground-breaking policy, far more often lagging the field. But that trend has started to reverse as of late, beginning in 2022 when Louisiana became the first state to require age verification to access sexually-explicit web sites. Other states followed and some of their laws, similar to Louisiana’s, met with court challenges. But, last month the Court rejected one setting a precedent for other.
Then in 2023 the state, pioneering with a few others, passed a law that required segregating of borrowing in public libraries of books with adult thematic material. Library systems had to set up procedures to distinguish minors and for those books to require parental assent for minors to access these.
And this year, the state just passed the nation’s first “anti-renewable portfolio standard” law, which basically pushes state policy to direct energy provision towards the least expensive and most reliable means. This discourages use of more expensive, less reliable wind and solar sources, which typically are part of mandates in RPSs adopted in some states.
Now comes the non-decision in Callais, which has yet to be rescheduled. To remind, this case was brought against the current congressional map which has a convoluted district drawn especially picking off black residents with little regard to anything else but race. The Court asked for reargument, rarely done but in recent years has emerged (when there’s not a new justice joining the Court) as a sign the Court wants to further explore a potentially new direction in jurisprudence. That strongly suggests itself in this instance for several reasons.
First is the judiciary’s travails over the complex of cases surrounding Singleton v. Allen and Milligan v. Allen. These cases from Alabama became the operating jurisprudence regarding reapportionment law that Callais, indirectly, challenges. The Alabama cases established that the Voting Rights Act, Section 2, gave race a privileged position among criteria for reapportionment, as a means to redress past discrimination presumably still resonating. In sum, the Court deferred to a lower court that said that a state’s congressional representation should roughly mirror the proportion of that racial minority (determined as such by a three-part judicial test first formulated in 1986) in a state to produce the number of majority-minority districts, “or something quite close” to it.
That “close” thing is termed an “opportunity district,” or one with a high plurality of minority (in this case, black) voters. But Alabama, whose population was two-sevenths black, after originally having just one M/M district out of seven that resulted in the lower court ruling in the original case, then came back with another single M/M map. This spawned another case that eventually led the judiciary to appoint a special master that drew optional maps, one of which was selected for use in the 2024 election. That map featured an M/M and an opportunity district, both of which sent a black representative to Congress.
Alabama deliberately defied the Court because it wanted to take advantage of the concurrence by Assoc. Justice Brett Kavanaugh in the original decision that ratified the lower court’s order, which suggested the Sec. 2 relief might be, after six decades, timebound. Alabama didn’t raise that claim initially, but did so in the second case triggered by its replay of a single M/M district. But, it was in a bad place to do so, already under an order to draw only five majority-majority districts and with a geography that made it relatively easy to do so without violating other recognized reapportionment criteria.
By contrast, Louisiana’s electoral geography doesn’t permit drawing two of six rather than one M/M district (as a third of the population is black) without substantial violations. Further, it wasn’t under a court order as result of a trial to do so, but as a result of injunctive relief. Nevertheless, it complied and redrew (eschewing using opportunity districts instead), but in the process created a map that relied heavily on race — something that didn’t go unnoticed by justices — as well as containing substantial violations.
The question then becomes where to draw the line. Race explicitly cannot be used to draw a map unless as a remedy for ongoing discrimination, although it can be a factor to remedy past discrimination. What can be used are criteria such as communities of interest, incumbent protection, and outright partisanship, but if race so predominates as part of that, it fails — regardless to which race is catered.
Defenders of the concept of the current map — two M/M districts — say something like that can be achieved in less violative fashion than the current version. But there still may be too much violation, particularly when kicking out the Sec. 2 prop as Kavanaugh wondered — which also didn’t go unnoticed.
And, unlike Alabama, Louisiana has plenty of evidence from recent local elections to argue the timebound nature of Sec. 2. Essentially, for there not to be actionable vestiges of discrimination, a minority group defined in part by high cohesion in voting choices must be thwarted consistently by the cohesive majority.
But what about mayoral elections in Monroe in 2020 — and again in 2024 — or in Shreveport and Alexandria in 2022, or in Baton Rouge in 2024? In each circumstance, in majority black constituencies except Baton Rouge where it is a plurality, white candidates defeated black candidates with the necessary substantial black crossover voting to make that a reality. Not only does this demonstrate eroding minority cohesion but also increasing racial commonality marked by greater propensity of black voters to reject black candidates in favor of white ones.
Also, in a South Carolina decision the Court took baby steps to distance itself from bedrock reliance on the proportionality standard articulated in the Alabama cases. In this other case, the Court ruled that where relatively few violations of other reapportionment standards was present in a map not following proportionality, that map was constitutional. Thus, it becomes a judgment call whether a single M/M Louisiana map would qualify.
Finally, some Solomonic political machinations may be in order. With no scheduling yet thereby signaling that timing will force the 2024 two M/M map into usage for 2026 elections, if the Court is moving into a major shift in reapportionment jurisprudence this gradual temporal approach may be its majority’s preferred strategy.
And thus may Louisiana, by implementing a map daring the Court to solidify its race as first among equals direction or to recognize the absurdity of that when compared to existing law (which counsels against proportionality) and equal protection jurisprudence, may yet again prove to be a policy leader.
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