There is no doubt that Louisiana’s current congressional map that jackknifes into it two black majority-minority districts of six will disappear sooner than later, argumentation in front of the U.S. Supreme Court earlier today revealed, but just how little of a role race will play in apportionment going forward remains to be seen when the Court’s ruling on the consolidated Louisiana v. Callais and Robinson v. Callais comes out.
From the start, the Court majority, those justices picked by a Republican president, unambiguously signaled the current map soon would hit the ash heap, confirming lower court rulings, precisely because of the dominant role race played in its creation. GOP Gov. Jeff Landry successfully urged the Legislature to draw the current map after the Court refused to resolve the conflict between statute (Section 2 of the Voting Rights Act) and the Constitution (the Equal Protection Clause) as to how prominently race could be used to precent potential discrimination by race.
Too far, as the Louisiana case that the Court’s previous ruling impacted demonstrated. In that instance, for the first time ever a court ruled that, despite the actual wording of Section 2, that if a state had a discrete minority population of a certain proportion that the number of seats that were M/M roughly had to correspond to that. This was the logical extension of a bedrock assumption drawn into the jurisprudence of the VRA, that regarding race outcome mattered, not intent, when districts were drawn: if you could maximize the number of M/M or opportunity districts for a plenary body that avoided not having at least a poor argument justifying the ways in which it could violate traditional principles of map-drawing in order to cater to race, you had to maximize.
The majority bloc’s queries of counsel made clear that would end, signaling the search for a coherent framework where, for the first time, intent would play a role in determining a map’s juridical validity. Often lost in the debate over Callais is that while the map’s question of survival was binary, the rationale determining that answer need not be all-or-nothing. That is, the map could be voided without completely voiding Section 2.
The minority of Democrat presidential appointees refused to come to grips with that, hinting they thought the map constitutional. But the majority laid out a framework that points to Section 2 becoming dramatically watered down, to the degree that it serves as a break-glass-in-case-of-emergency tool only when it’s clear that a majority drew districts specifically to deny a discrete minority (in almost every circumstance in America, blacks) to elect a candidate of choice because of animus against that minority for being that minority – not because the minority may have different partisan voting habits; in other words, racially discriminatory intent in need of demonstration.
Further, the use of this emergency tool occurs on different tracks, with its applicability varying by circumstance. For example, jurisdictions with more recent and more overt actions demarcating unambiguous attempts at discrimination by race will have a higher burden of proof in showing that intent differs from outcome. Note that there is a built-in scaling as well: the more homogenous nature of smaller jurisdictions makes mapping that involves unusual shapes, for example, more suspect and demanding a higher burden of proof.
As examples, Louisiana’s 2022 single M/M congressional and current legislative maps likely survive under this arrangement, because partisanship becomes a stronger affirmative defense in their drawing in an environment for decades lacking intended overt racially-discriminatory policy. By contract, DeSoto Parish’s drawing of a significantly higher proportion of M/M districts than minority population proportion for its police jury likely fails, as the greater homogeneity of communities of interest required a map with bizarre boundaries that splits Mansfield into more pieces than Humpty Dumpty.
Finally, the majority – especially Assoc. Justice Brett Kavanaugh, who voted in favor of giving race its preferential treatment previously but warned if a case like this came up that made justiciable the notion that the VRA was timebound he might take exception to its current robustness – hinted this very thing and therefore that the VRA’s implication that race could be used as a first among equals as a remedy was a wasting asset soon to be depleted. With Kavanaugh switching his vote on this basis, all in all the majority seemed ready to make the Kendian “the only remedy to past discrimination is present discrimination” dictum as it relates to Section 2 as rare as the left for so long claimed abortion should be, when of course in reality leftists wanted it on demand.
Using race and Section 2 that often, the gist of the questioning-and-answering of the hearing showed, looks to be on the way out, and not a moment too soon to dispel partisan political gains via mapping from hiding under VRA skirts.
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