It’s somewhat lengthy at 43 pages, which many of our readers might not have time for, but we were nonetheless impressed by the amicus brief Louisiana Gov. Jeff Landry sent to the U.S. Supreme Court in the Louisiana v. Callais case. What follows is a short summary of the brief, but you can read the whole thing here.

The short, short summary is that Landry’s brief answers this whining complaint from Louisiana’s Democrats and specifically the Legislative Black Caucus and Cleo Fields…

The crybullies are screeching now about Liz Murrill, Louisiana’s Attorney General, over her supposed reversal of course in the Supreme Court brief in the Callais congressional redistricting case. Murrill said in her brief that Louisiana’s current congressional map which has two majority-black districts is racially gerrymandered, and that has completely set these people off.

“How many Blacks have Louisiana elected to Congress from a majority white district? The answer to that is zero,” Cleo Fields, who was the recipient of a tailor-made congressional district drawn in that new map. “Without the Voting Rights Act, people of color don’t have an opportunity to participate in the process.”

What a crock.

The reason for Murrill’s “reversal” is that the Supreme Court asked for briefs and oral arguments on Section 2 of the Voting Rights Act in its rehearing of the Louisiana v. Callais case which Murrill is arguing before it next month. Her previous arguments in defending the current map were on the question of whether the map violated the Equal Protection clause of the 14th Amendment. Now she’s arguing Section 2 of the VRA, and it isn’t inconsistent for the state to assert that it would rather not have to draw its congressional map to give affirmative action for black Democrat politicians like Troy Carter and Cleo Fields when doing so – or not doing so – is going to force Liz Murrill to spend her time continuously fighting in court.

But beyond that, when has Cleo Fields ever appealed to white voters in Louisiana? What about Cleo Fields would make him attractive to white voters? The nearly half-dozen times it took him to pass the state bar exam? The $25,000 bribe he was on video taking from Edwin Edwards? The shady get-out-the-vote tactics he’s known for? The non-stop accusations of racism against anybody who stands in his way?

Landry’s take isn’t so much that Section 2 of the VRA is a different argument than the one the state was making when the case first came to the Supreme Court (and was then punted to the upcoming session because the Court wants to litigate Section 2), though he does touch on that subject.

Instead, it’s a history lesson and a pretty thorough one, because even if you’ve paid attention to the never-ending litigation of every effort the Louisiana legislature has made to draw districts – not just for Congress, but for state legislative seats, judicial districts and practically everything else – you won’t remember the long catalog of cases we’ve been dragged through that Landry lays out.

We can’t draw a map without somebody suing. Either it’s the NAACP/Eric Holder mob upset because we aren’t doing enough racial gerrymandering to maximize the amount of set-aside districts for black Democrats, or it’s everybody else suing because we’re doing too much of that.

Landry’s brief essentially drops this in the Supreme Court’s lap and says “we’re done with this crap. Congress made this mess with the VRA and you’ve made it a thousand times worse, and it’s time you put a stop to this chaos and let us draw the districts our people want drawn.”

Gingles simply asks whether a “reasonably configured” majority-minority district is mathematically possible—not whether a map recognizing such a district would most comport with traditional districting criteria or would be expected absent racial discrimination. See Allen, 599 U.S. at 19-20 (finding Gingles precondition one satisfied because “black voters could constitute a majority in a second district that was ‘reasonably configured’”) (emphasis added). Showing mathematical possibility is not particularly hard now that “modern computer technology” can be used to “generate millions of possible districting maps for a given State” and “can be designed to comply with traditional districting criteria.” Id. at 23. And plaintiffs’ experts are allowed to intentionally target maps with the requisite number of majority-minority districts. Id. at 33 (conceding that illustrative maps used to satisfy Gingles precondition one are frequently “created with an express target [of majority-minority districts] in mind”). Armed with a computer and using explicit racial targets, a plaintiffs’ expert will often be able to create a few maps—out of millions of possible permutations—that contain majority-minority districts and are at least arguably “reasonably compact” with reference to traditional districting criteria.

Where that is the case, the state is in a bind. If it does not create the proposed majority-minority district, it will almost certainly be sued under the VRA. The lawsuit will cost the state time and taxpayer money, disrupt the state’s political processes, and likely result in a negative ruling. To be sure, the plaintiff would also have to satisfy Gingles’s second and third preconditions and the “totality of circumstances” test, but these do not pose a high bar. See id. at 22 (dispensing with Gingles’ second and third preconditions because there can be “no serious
dispute that Black voters are politically cohesive, nor that the challenged districts’ white majority votes sufficiently as a bloc to usually defeat Black voters’ preferred candidate”) (internal quotations omitted); Ellen D. Katz et al., Documenting Discrimination in Voting: Judicial Findings Under Section 2 of the Voting Rights Act Since 1982, 39 U. MICH. J.L. REFORM 643, 660 (2005) (finding that, in the 20 years following Gingles, plaintiffs that made it to the “totality of circumstances” test prevailed in 57 of 68 lawsuits).

Alternatively, a state legislature could try to do what a plaintiffs’ expert would do: use explicit racial targets to draw a map with as many “reasonably compact” majority-minority districts as possible. But this would almost certainly lead to an Equal Protection Clause challenge. After all, while the plaintiffs’ expert is allowed to have “an express [racial] target in mind,” when the legislature draws a map, “race may not be the predominant factor.” Allen, 599 U.S. at 31, 33 (internal quotations omitted). Since “the line between racial predominance and racial consciousness can be difficult to discern,” id. at 31, there will always be a litigable question as to whether a race-conscious legislature crossed into the line into racial predominance.

Similarly, just because a plaintiff’s expert can draw a majority-minority district that is configured reasonably enough to give rise to a plausible Gingles claim does not mean that a court will necessarily find a similar map drawn by the state legislature to be “reasonably configured.” Reasonableness is a flexible standard, and it is not at all obvious how to judge districts that are strong on some traditional districting criteria (e.g., protecting communities of interest and/or incumbents) but weak on others (e.g., compactness and/or respecting political subdivisions). As Justice Scalia would say, balancing those divergent factors is “like judging whether a particular line is longer than a particular rock is heavy.” Bendix Autolite Corp. v. Midwesco Enters., Inc., 486 U.S. 888, 897 (1988) (Scalia, J., concurring in the judgment). And it will always be more difficult for a legislature that represents real people with diverse interests to draw reasonably configured districts than it will for a plaintiffs’ expert to draw one up in the computer lab.

This is why Louisiana is far from the only state to draw a majority-minority district to avoid a Gingles suit, only for a court to find that the district was not “reasonably configured” enough to survive a Shaw suit. See Allen, 599 U.S. at 27 (“Though North Carolina believed the additional district was required by § 2, we rejected that conclusion, finding instead that those challenging the map stated a claim of impermissible racial gerrymandering”) (citing Shaw v. Reno, 509 U.S. 630, 655, 658 (1993)); id. at 27-28 (“To comply with the VRA, Georgia thought it necessary to create two more majority-minority districts” but “Georgia could not create the districts without flouting traditional criteria”) (citing Miller v. Johnson, 515 U.S. 900, 920-21 (1995)); id. at 28 (noting that “Texas[] create[ed] three additional majority-minority districts” to comply with Section 2 only to lose a racial gerrymandering suit because “the districts had ‘no integrity in terms of traditional, neutral redistricting criteria’”) (quoting Bush v. Vera, 517 U.S. at 960). Just like here, the problem in those cases was not that the states acted in bad faith or ignored this Court’s precedents. The problem was that “no precise rule has emerged governing § 2 compactness.” LULAC, 548 U.S. at 433. So states like Louisiana, North Carolina, Georgia, Texas, and so many others are forced to guess whether an additional majority-minority district will be deemed “reasonably compact” and then litigate either a Gingles or Shaw suit to find out if they guessed right.

If you have an appetite for legal briefs (and we won’t think less of you if you don’t), it’s a really interesting summary of the issues in the Callais case – and one we wouldn’t be surprised to see the Court persuaded by. Again, if you’d like to read the whole thing, we have it here.

But the argument he’s making isn’t a reversal of Murrill’s argument in favor of the current 4-2 congressional map. It’s a protest at all the stupid hoops the state has had to jump through all these years.

The word is that as soon as they’ve had oral arguments in the Callais case, Landry will call a special session to redistrict that 4-2 map so that Louisiana will go back to a 5-1 map for the 2026 election cycle, assumingly contingent that the arguments he, Murrill and the plaintiffs are all now making hold sway with the court. If they’re successful, there is a chance we can finally be left alone to draw redistricting maps the people of Louisiana, rather than Eric Holder, Cleo Fields and the rest of the race industry, will actually support.