Maybe Republican former Sen. David Vitter was right, and if Louisiana causes one momentum-shifting constitutional case outcome, it might get caught up with another that would cause changes in its state legislature just as politically consequential.
Any day now the U.S. Supreme Court could rule on Callais v. Louisiana, which could declare that reapportionment of legislative districts becomes too race-conscious if drawing maps to reflect roughly a proportion of a jurisdiction’s minority population onto its proportion of majority-minority seats of that minority. That would mean, for Louisiana’s congressional map, its Legislature could draw a plan that favors the election of five Republicans and one Democrat, as opposed to the current map that has produced two Democrats.
Such a decision would leave current legislative maps with slight Republican supermajorities in stasis. Nairne v. Landry currently challenges the two chamber maps but using the same logic contested in Callais. If the Court rules as expected to negate the use of race in such an intrusive fashion, the complaint in Nairne vanishes.
Yet if the Court decides a certain way in another case it just accepted, it could be that the Legislature’s GOP advantage in both chambers becomes extended further. Last week, the Court said it would take on Trump v. Washington, which involves the question of whether an executive order of his could correctly define citizenship to exclude birthright.
Although legislative and judicial activity on the question essentially ceased more than 150 years ago, the government’s filing that won over at least four Court justices presents a good cumulative argument as to why the Court should end the practice of awarding citizenship to anybody born on U.S. soil, regardless of the legal entry status of his parents. If that succeeds, that could set the stage for the U.S. Census to ask a citizenship question in 2030, which Vitter had attempted to force it to do prior to the 2010 version.
And that could open the door to a fundamental reinterpretation of how states define represented populations for apportionment of legislative districts. Concerning the most recent case even vaguely related to that idea, in 2016 Evenwel v. Abbott reaffirmed that states had to use the official undifferentiated census count for reapportionment of congressional districts. But in a concurrence, Assoc. Justice Samuel Alito noted that he thought a differentiated count, potentially excluding people ineligible to count as electors, was not prohibited by law or the Constitution for states in apportionment for them and their local governments.
Defining the covered population has political consequences. A study of the impact of every kind of immigrant on representation showed in total that in Congress the placement among the states of as many as 26 seats in the House would have been affected in 2020 without counting immigrants of any kind. The narrowest applications–illegal aliens including their children and excluding them–redistributed five and three seats, respectively, while all non-citizens whether legal including and excluding their children, redistributed ten and eight seats, respectively. In all cases, the net redistribution would have favored Republican-majority states.
Another report discovered the same trend when addressing state legislatures. Analyzing the five states with the highest proportion of immigrants, voters in state legislative districts with greater shares of noncitizens tended to vote more Democratic.
Thus, if states were permitted to reapportion on the basis of citizen-only totals that a census question could capture, allowed because a distinguishment of citizenship status had to be made because birthright citizenship no longer applied, Republicans would benefit. In reality, it would work by illegal aliens avoiding an answering of the census, which further would disempower Democrat-run states by reducing their counts used to apportion federal government benefits, but which would help Louisiana.
Not a bad deal, unless you’re a Louisiana Democrat who would see your party lose a seat in the U.S. House and maybe more in the Louisiana House and Senate.
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