SADOW: Louisiana Democrats All In On Litigating Their Loss

For Louisiana Democrats, when it comes to reapportionment it’s all about the litigation now.

That became clear as the Louisiana Senate passed SB 5 by Republican state Sen. Sharon Hewitt, by a partisan vote. The reapportionment map in the bill would keep with some minor modifications the current plan that establishes only one of six majority-minority districts for Congress. With almost a third of Louisianans being black, Democrats – for whom blacks almost always vote – and leftist special interests wanted there to be two such districts in the upcoming map. Democrats offered several such plans, including a last-ditch amendment on the floor.

But the problem with that, as both Hewitt directly and GOP Sen. Pres. Page Cortez indirectly made clear in addressing the bill, is it created tenuous black majorities in the two districts, and violated various judicially-approved principles of redistricting as spelled out throughout the process over a series of months, most principally in how all offered Democrat plans tore communities of interest apart. Left unsaid was because those plans made race the dominant consideration they would be unconstitutional.

If Republicans wouldn’t say it, the U.S. Supreme Court hinted that would be the case in its most recent Merrill v. Milligan decision, over a similar Alabama reapportionment case. The plaintiff‘s (Alabama) argument in preserving its enacted districts noted that a good-faith search for alternatives to its one M/M plan could produce only two M/M plans that relegated to insignificance other valid criteria such as keeping communities of interest together and continuity. Joining Alabama in its heretofore successful appeal, with a full trial on the matter in the offing within the next year or so, was Louisiana through Republican Atty. Gen. Jeff Landry.

Thus, if leftist elements were to sue Louisiana over something close to SB 5’s current posture enacted into law, they would have to demonstrate that the legislative majority intentionally and blatantly tried to impose mapping deliberately to prevent a substantially-grouped minority that voted cohesively from electing candidates of their choice. Thus set the stage for the interrogation of Hewitt.

Mostly conducted by the chamber’s bluntest and most partisan instrument Democrat state Sen. Karen Peterson, elected to national party office, her questioning of Hewitt, contrary to Senate procedure, strayed from the content of the bill and went off into the advice Hewitt and others had received about it. Hewitt’s good-natured answers didn’t divulge much more than what already the leftist news site Louisiana Illuminator had reported – and later what Cortez clarified – that the GOP legislative leadership had retained the law firm BakerHostetler to advise on potential litigation, although no resources had been expended on this – yet.

She did reveal two new facts – that she had conversed about the issue at a National Conference of State Legislatures conference, and that she had talked to a lawyer named Kate McKnight about it. Quite possibly the two were conjoined, in that McKnight, a BakerHostetler partner with an extensive background in reapportionment, had spoken at last year’s NCSL conference, although Hewitt mentioned phone calls with McKnight perhaps unrelated to the meeting.

McKnight’s involvement was to Democrats akin to waving a red cape in front of a bull. Months ago, she had been hired to advise Michigan’s reapportionment commission, to the left’s consternation, which produced a plan criticized by leftists but eventually adopted, surviving a legal challenge that wanted another Detroit-area M/M district. As part of that defense, she had argued that current law didn’t require an M/M district when one could be drawn, but that it protects “a minority community’s opportunity to elect.”

Hewitt also noted analyses had been performed on the question although the records weren’t retained. However, as data don’t change, these could be reconstructed easily in case the matter became a case in the judicial system. And, keeping eyes on the ball, regardless of whether any analysis shows the likelihood of black Democrat victors in two M/M districts, if in drawing those districts race is the dominant criterion as in all presented Democrat plans, then those maps are unconstitutional.

The state’s leftist special interests and their media fellow travelers tried to make Hewitt’s and Cortez’s statements seem opaque and conspiratorial, while ignoring the line of questioning by Peterson and others and from where they received that advice that echoed that from the Michigan case and likely in other states where such disputes have cropped up. In reality, Hewitt’s answers (when they didn’t pertain to ridiculous queries such as asking for McKnight’s phone number) established that expert consultation had occurred in a good-faith effort to determine the practicality of having two M/M districts.

Thus, Democrats in their questions – clearly running from a playbook likely provided by the national party and/or unnamed special interests – and Republicans in their answers were trying to create a paper trail as a resource for pursuing and fending off, respectively, future litigation. Because that’s where Democrats want to take this, as long shot as it may be, because it’s their only prayer of producing the political result that they crave.

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