The Louisiana Legislature’s first session of 2024 will begin on Monday, 15 January, to deal in large part with a federal court’s order to create a second majority-minority federal congressional district.  It should be a quick session; the Legislature should simply refuse to comply.

They have solid justification for doing so.  First, the federal constitution gives plenary power over congressional elections to the State legislatures and to the federal legislature:

‘The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators (Article I, Sec. 4).’

The federal courts are good at twisting words and phrases, but not even they can insinuate themselves into those lines.

Second, federal civil rights legislation doesn’t require it.  Justice Clarence Thomas is downright blunt in his dissenting opinion in Allen v Milligan (2023):

In enacting the original Voting Rights Act in 1965, Congress copied this definition almost verbatim from Title VI of the Civil Rights Act of 1960—a law designed to protect access to the ballot in jurisdictions with patterns or practices of denying such access based on race, and which can-not be construed to authorize so-called vote-dilution claims. See 74 Stat. 91–92 (codified in relevant part at 52 U. S. C. §10101(e)). Title I of the Civil Rights Act of 1964, which cross-referenced the 1960 Act’s definition of “vote,” likewise protects ballot access alone and cannot be read to address vote dilution. See 78 Stat. 241 (codified in relevant part at 52 U. S. C. §10101(a)). Tellingly, the 1964 Act also used the words “standard, practice, or procedure” to refer specifically to voting qualifications for individuals and the actions of state and local officials in administering such require-ments.1 Our entire enterprise of applying §2 to districting rests on systematic neglect of these statutory antecedents and, more broadly, of the ballot-access focus of the 1960s’ voting-rights struggles. . . .

In any event, stare decisis should be no barrier to reconsidering a line of cases that “was based on a flawed method of statutory construction from its inception,” has proved in-capable of principled application after nearly four decades of experience, and puts federal courts in the business of “methodically carving the country into racially designated electoral districts.” Holder, 512 U. S., at 945 (opinion of THOMAS, J.). This Court has “never applied stare decisis mechanically to prohibit overruling our earlier decisions determining the meaning of statutes,” and it should not do so here. Monell v. New York City Dept. of Social Servs., 436 U. S. 658, 695 (1978). Stare decisis did not save “separate but equal,” despite its repeated reaffirmation in this Court and the pervasive reliance States had placed upon it for decades. See, e.g., Brief for Appellees in Brown v. Board of Education, O. T. 1953, No. 1, pp. 18–30. It should not rescue modern-day forms of de jure racial balkanization—which, as these cases show, is exactly where our §2 vote-dilution jurisprudence has led.

Third, any action of the federal government that violates the US constitution (such as the court order being discussed) is void, of no effect, and the proper response of States is to nullify such acts.  The Louisiana Legislature ringingly endorsed that view in SCR 21 last year.  They should follow through and veto these unconstitutional federal orders to racially gerrymander, rather than sheepishly comply.  If they don’t, they will reveal themselves to be hypocrites, saying one thing and then doing another.

Fourth, even the pro-centralizing Federalist Papers (the same documents that promised the federal courts would be the ‘weakest’ federal branch, having ‘judgment’ but not ‘force’ or ‘will’ – a promise we should insist be fulfilled), even they suggest that States ought not comply with unlawful federal measures, and then go on to recommend ways they can neutralize them.  Via the Tenth Amendment Center:

Writing in Federalist #46, James Madison provided a 4-step strategy to bring down federal programs, without waiting on the federal government to limit its own power.

Here’s what he had to say in the letter, The Influence of the State and Federal Governments Compared:

“Should an unwarrantable measure of the federal government be unpopular in particular States, which would seldom fail to be the case, or even a warrantable measure be so, which may sometimes be the case, the means of opposition to it are powerful and at hand. The disquietude of the people; their repugnance and, perhaps refusal to cooperate with officers of the Union, the frowns of the executive magistracy of the State; the embarrassment created by legislative devices, which would often be added on such occasions, would oppose, in any State, very serious impediments; and were the sentiments of several adjoining States happen to be in Union, would present obstructions which the federal government would hardly be willing to encounter.”

In short, Madison said that when the federal government passes an unconstitutional measure there are powerful methods to oppose it – amongst the people and in the states.  He also pointed out that those same methods were available even for warrantable, that is constitutional, measures.

They are:

1. Disquietude of the people – Madison expected the people would throw a fit when the feds usurped power or tried to implement unpopular policies. That leads to the next step.
2. Repugnance and Refusal to co-operate with the officers of the Union– Noncompliance. The #1 dictionary of the time defined repugnance as “disobedient; not obsequious” (compliant). If you want to stop the federal government, you have to disobey them. Madison also suggested that people would perhaps directly refuse to cooperate with federal agents. This is an approach we preach here every day at the Tenth Amendment Center. James Madison apparently knew what we know today. The feds rely on cooperation from state and local governments, as well as individuals. When enough people refuse to comply, they simply can’t enforce their so-called laws.
3. The frowns of the executive magistracy of the State– Here Madison envisions governors formally protesting federal actions. This not only raises public awareness; executive leadership will also lead to the next step – legislative action.
4. Legislative devices, which would often be added on such occasions– Madison keeps this open-ended, and in the years soon after, which I’ll cover shortly, we learn how both he and Thomas Jefferson applied this step.

Madison also told us that if several adjoining States would do the same it would be an effective tool to stop federal acts.  To repeat, he said that doing this “would present obstructions which the federal government would hardly be willing to encounter.”

The federal courts don’t have a leg to stand on.  Louisiana, together with Arkansas, South Carolina, Alabama, and any other States who are being compelled by the federal courts to redraw their congressional maps, ought to band together and put the courts on notice that they are through with this charade.  We will have to wait and see if they have the courage to do the right thing.  In the meantime, Louisiana citizens should contact Gov. Landry and the Louisiana Legislature’s representatives and senators and urge them to ignore the federal court orders.