Louisiana could end up the tip of the spear in defining voting rights, as court cases swirl about, from how its Legislature concluded its 2022 First Extraordinary Session devoted to reapportionment.
That session sent plans favored by its Republican majority to Democrat Gov. John Bel Edwards, who has voiced support for other rejected maps that leftist special interests have backed. Almost certainly he will veto a congressional plan that considers not only racial demographics but also largely keeps communities of interest together and provides continuity of representation that increase the chances of incumbents winning with the new boundaries, because it supplies only one majority-minority district out of six instead of two in a state where just about a third of the population identifies as black. Inevitably almost certainly, whether from an override failing that creates malapportionment (whether this attempt only or another is made during the regular session) or it succeeds that aggrieves special interests seeking a map more conducive to electing leftists to Congress, it will become subject to litigation.
A decade ago, elements who keyed on race as a means to increase the influence of Democrats in plenary bodies had means of Section 5 of the Voting Rights Act of 1965 to spur that. It required preclearance by the U.S. Department of Justice of districts created in certain jurisdictions that had a history of electoral laws that prevented minorities from voting, based upon a formula. However, in 2013 the U.S. Supreme Court’s Shelby County v. Holder decision declared the decades-old formula in Section 4(b) was too dated to past constitutional muster in that its deviation from reality made impermissible federal intrusion through preclearance into state sovereignty, essentially mooting Section 5 (until Congress passes an updated, realistic formula into law).
Advocates of greater Democrat representation – because typically black voters overwhelmingly cast ballot for Democrats – since have turned to Section 2 of the act to use as a cudgel to increase the number of M/M districts. This section prohibits vote dilution, as defined in Thornburg v. Gingles, which would include deliberately drawing districts along demographic lines with race as a predominant factor (later reinforced with Shaw v, Reno that makes clear it cuts both ways) to impede minority voters who as a group meet certain criteria (sufficient minority population to constitute a majority in a single district, that minority displays political solidarity, and non-minority voters consistently opposes that minority’s preferred candidate), while considering the totality of circumstances.
This meant that, but only by using totality of circumstances, dilution without intent could be held in violation, as long as it entailed that minorities had less opportunity than other members of the electorate to elect representatives of their choice (which doesn’t automatically entail creation of an M/M district even if possible). But the law nor subsequent court rulings for decades gave any precise guidance as balancing race and other circumstances like a desire to protect incumbents or keep together communities of interest, keeping only the assumptions that race couldn’t be the predominant factor and that plaintiffs need not prove intent by mappers to discriminate in order for vote dilution to occur.
However, last year in Brnovich v. Democratic National Committee when, following legislative intent that showed a specific rejection of disparate impact without need to demonstrate intent, the Court did away with the importation of Section 5’s unfettered standard (which also exists under Title VII of the Civil Rights Act and the Fair Housing Act) as applying to Section 2 claims. While this case dealt with laws in conducting elections, just as it refined the Gingles factors that until then had been imported from reapportionment to time, place and manner of elections questions, it could reverse the flow in a future decision about reapportionment. For example, it called for greater attention to be paid to state interests – such as preserving communities of interest and continuity in representation – to which a future reapportionment case could make reference.
Enter then the totality of circumstances and a case the Court certainly will take up within the year, based on Merrill v. Milligan from earlier this month. That stayed a lower court’s decision that Alabama’s recently-enacted congressional reapportionment violated Section 2 because of voter dilution, but only for the reason that the decision’s closeness to the election was too disruptive. In essence, the Court said it needed more time than available to review the lower court decision, which becomes an invitation for it to lay down some hard and fast standards as to when race is considered predominant or to define the limits to how much other circumstances can play a part in drawing boundaries. That it made this declaration indicates some unease with the framework provided by the lower court and might indicate it finds valid the state’s claim that this framework gave race too much prominence.
Here again, any Louisiana case could set important precedent. Unlike the Alabama case or similar ones brought in other states to date, it would feature an environment of split governance that to produce – or not – a plan over the objections of one majoritarian branch (assuming the almost-certain Edwards veto). That could provide a marker in whatever test the Court concocts down the road; for example, as a measure of intent to discriminate, where lesser presumption accrues when the executive doesn’t object.
(Notice that Section 2 dilution claims are only that – diluting concentrations of minority voters. Under it, boundaries that strengthen concentrations of such voters in a district that could result in fewer M/M districts overall, because of the wording of the Gingles factors that creates a bias towards building districts around concentrations, is harder to prove as a backdoor dilution strategy. The Court providing more substance in vetting dilution claims could make “packing” strategies more difficult to add to the present clear admonition against “cracking.”)
Then, courtesy of its neighbor to the north, a wild card gets thrown in. Last week, a district judge ruled he would throw out Arkansas State Conference NAACP v. Arkansas Board of Apportionment unless the DOJ intervened, reasoning that Section 2 wording only permitted standing for the federal government. The plaintiffs allege that legislative redistricting didn’t build on concentrations of black voters in the Little Rock area as they believe it should have.
This case almost certainly will reach the Court in some fashion, and if it were to side with the lower court this would throw out any Louisiana suit and leave it up to DOJ to pursue anything. That means delayed action at best for special interests and at worst for them inaction.
There are lots of balls in the air now on this issue, but one thing is for sure: compared to jurisprudence a year ago, when under that the map produced by the Legislature last week stood a good chance of surviving legal challenges, since last year or even last month those odds have increased, and may toss in some far-reaching precedence to boot.