With the U.S. Supreme Court recently reaffirming that Section 2 of the Voting Rights Act of 1965 does, in fact, outlaw the dilution of Black voting strength through racial gerrymandering in the Alabama case of Allen v. Milligen, it appears that the long drawn-out redistricting season is drawing to a close.
Further indications that the Supreme Court is ready to move on is its refusal to grant Louisiana a separate hearing in the factually similar case of Ardoin v. Robinson, instead sending it back to the 5th Circuit Court of Appeals for review “in advance of the 2024 congressional elections.”
The 5th Circuit last week ordered attorneys for both sides to submit briefs arguing how the Alabama case affects the Louisiana case. The 5th Circuit justices could decide the case themselves, or they could send it back to the district court for further proceedings. While no one can predict what the individual lower federal courts will do, most objective legal scholars agree that Louisiana is playing a much weaker hand in defending its gerrymandered maps after the Alabama decision.
The state of Alabama’s population is 27% Black with one Black majority district out of the seven total congressional districts. Louisiana’s population is 33% Black with one Black majority district out of six. With Alabama being ordered by the Supreme Court to create a second Black district, most expect that Louisiana will eventually be ordered to follow the court precedent and create a second one also.
Federal court precedents call for districts to be compact. However, the Louisiana Legislative Black Caucus and the original plaintiffs challenging the current Louisiana maps have each submitted hypothetical maps to the courts with two compact Black districts. So the compactness argument is probably not available to the state.
Given the long odds facing the state in defending its current maps, now would be the appropriate time to end its legal defense of its congressional maps, sit down with the plaintiffs in the case, and negotiate a compromise set of maps. This can either be done by a settlement approved by the court, or by a special session of the Legislature. Continuing to defend the current maps could have negative consequences.
Before discussing those negative consequences, it’s important to understand why the state is digging in its heels and defending the current maps against long odds. At first blush, this case appears to be only about race. In reality, it is not only about race. It is also about old-fashioned partisan politics and protecting incumbents.
The Republicans currently control the U.S. House of Representatives by a 222 to 212 margin. The margin was 222-213 prior to the recent departure of Democratic Rep. David Cicilline in Rhode Island. The district is considered safely Democratic. If five other seats were to flip, control of the House would return to the Democrats. If Republicans were to lose two or three seats to redistricting before the 2024 election, it would make it more difficult to retain their majority. Because of this, the Republican delegation in the U.S. House is pressuring Republicans in the state Legislature to defend the current maps at all costs.
Although some consider gerrymandering districts purely for partisan reasons to be unethical and harmful to the democratic process, it is, strictly speaking, not unlawful. The challenge that Louisiana Republicans have is that, with one-third of the state population being Black, and with the majority of those Black voters registering as Democrats, it is not possible to engage in partisan gerrymandering without also engaging in racial gerrymandering.
So, in light of recent court rulings, why shouldn’t the state continue to throw legal “Hail Mary” passes and hope that its fortune changes? Because, Louisiana, a state with a checkered civil rights past, has a history of doing just that. And, more often than not, when the state has done that, the federal courts have stepped in and imposed decrees on the state, forcing it to comply.
If the state refuses to come to a settlement in this case, it is possible the courts will simply draw the maps for it. Court-drawn maps will be less likely to respect cultural factors like “communities of interest.” Cities could be sliced in half by congressional district lines. All parties might be unhappy with maps drawn by federal judges unfamiliar with the local cultural geography.
Now is the time to end litigation and for all parties to come to the table and negotiate a rational settlement for two Black majority districts that everyone can live with. Refusing to do so runs the risk of forfeiting the right to local self-governance.
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