Landry's gamble: court-imposed nightmare

Blog: Between The Lines

Abstract

Republican Gov. Jeff Landry's first
big move as Louisiana's chief executive is more likely to blow up than pay
off.

An imperative to provide some rational alternative
to the state's present congressional map provided the main impetus for the
Legislature's special session currently in session. A federal district judge
declared that the district plan which contains only one of six majority-minority
districts unconstitutional, and jurisprudence for the moment dictates that the
state must come up with a plan that at the very least creates an additional opportunity
district – one that has a plurality of residents who identify racially as least
partially as black – or an additional M/M district. If that doesn't happen by
Jan. 30, by default in February the court will draw its own map, with the court's
ideological leanings likely making it a two M/M outcome.

The state has two options here: either capitulate to
draw the two M/M districts or to produce a map with fewer constructed in a way to
probe outstanding constitutional questions on the matter. Two
of those loom large: a partial
dissent to the U.S. Supreme Court decision opening the door to elevate race
above other reapportionment criteria such as maintaining continuity of
representation and keeping community of interests together that if directly
challenging that use as timebound would negate it, and conflicting rulings by
circuit courts of appeals whether non-government groups can challenge government
reapportionment choices that eventually the Court will have to sort out.

Landry has backed surrender by signaling support
for SB 8
by Republican state Sen. Glen
Womack. The bill would convert the existing Sixth District into M/M status
mainly by shifting the westerly northwestern Fourth eastward and south to
connect parts of Shreveport with Alexandria and to the doorstep of Lake Charles,
attenuating the reach of the central to northeastern Fifth from the south and
west but connecting Monroe to Baton Rouge, and lopping off the southern end of
the Baton Rouge-south-to-the-coast Sixth in favor of extending it from
inner-city Shreveport down the Red River to gulp in parts of Alexandria then
splaying southward to pick off parts of Lafayette and Baton Rouge while
removing Baton Rouge precincts from the Second.

Like a plan favored by special interests and
Democrats that makes likely Democrats can win the two M/M seats, it grants
narrow black majorities in each. The difference is the Democrat-favored plan,
which the district court probably would try to impose in absence of legislative
action, would rejigger lines to make the Fifth M/M.

Landry appears to prefer SB 8 because in part it
protects the electability of GOP Rep. Julia
Letlow, the state's only female member and of one of just nine GOP
congresswomen in the deep south, but mainly as it threatens GOP Rep. Garret Graves, who has stirred
resentment not only of Landry but by other members of the Republican congressional
delegation. Graves indirectly supported an opponent of Landry's and worked
against the leadership aspirations of the top two leaders of the House of Representatives,
Louisianans Republicans Speaker Mike
Johnson and Majority Leader Steve
Scalise.

If choosing SB 8 as the option, essentially the
state forfeits any chance of retaining its current single M/M lineup, not only
by its discarding but also in that it forgoes the chance at the constitutional challenges.
By no means is it a sure thing that a single M/M plan, even with another
opportunity district, would prevail, so Landry's strategy could be seen as
setting aside the chance to reflect better the will of the voters and Legislature
in favor of a sure thing that also achieves other purposes, although it would
rankle some members of his party that has a supermajority in each chamber.

Not entirely willing to go along apparently is
Republican state Rep. Mike Echols,
whose HB 14
would make both the Second and Sixth opportunity districts with black voting-age
residents at about 48 percent. The Sixth would stop its northern reach into part
of Alexandria and still gulp in part of Lafayette, but it keeps Baton Rouge almost
entirely together and does less splitting of metropolitan areas than does either
Landry's or Democrats' preferred alternatives. Best of all, it keeps alive the possibility
of resolving the constitutional question of whether opportunity districts would
stand.

Keep in mind that a separate challenge concerning
Louisiana's legislative maps already has brought forth the constitutional question
about whether using race so aggressively in reapportionment, despite wording in
the Voting Rights Act that declares proportionality in population is not
mandated to translate into proportionate seating, can continue to be applied. Resolution
of that case could kick out the rationale behind both a two M/M congressional
map and one with two opportunity districts.

But the problem in going with SB 8 over HB 14 is
the district court could invalidate the SB 8 two M/M map and then impose the
Democrats' preference. The Sixth District in SB 8 in characteristics is too
much like the "slash" Fourth District in Louisiana's second attempt to
reapportion after the 1990 census, which was declared unconstitutional
in placing too much emphasis of race at the expense of other reapportionment
principles.

If this happens, Landry and the GOP majorities
lose both their second-choice map and preference in protected Republican
congressional incumbents, immediately. The state could challenge in that circumstance,
but that past jurisprudence suggests it would lose and makes less certain that
the judiciary wouldn't impose the Democrat-preferred map in time for 2024 elections
and beyond. Depending upon the constitutional questions it doesn't ask finding their
resolution by other means and how quickly that happens, Louisiana could be
stuck with its third-choice map – but Democrats' first choice – up until 2032
reapportionment after the 2030 census.

By contrast, backing HB 14 produces more desirable
outcomes. At worst, the district court and special interest plaintiffs accept
it, giving Landry's party a shot at winning both opportunity districts, but if
not likely ousting their preferred GOP sacrificial lamb, until such time the
Supreme Court could axe race's preferred position in reapportionment before
2032 reapportionment generated from the 2030 census that if happening before then the
state could go back and perform a mid-decade reapportionment back returning to the
first-choice plan.

If either the district court or plaintiffs disagree,
then the state could initiate legal action that pushes the desired
constitutional questions towards quicker resolution, all the while much likelier
preserving their first-choice map for 2024 and perhaps permanently with favorable
Court resolution by 2026. Indeed, because not only is the HB 14 plan better on
all reapportionment principles than SB 8 it's also better on these than any
Democrats' preferred plans, excepting potentially on racial distribution, it
stands a good chance of Supreme Court validation should the timebound question either
not have been addressed by then or decided that it didn't apply, or can ask
that itself.

By tying themselves to SB 8, Landry and the
Republican majority unnecessarily gamble, where while this may increase the
chances of Graves not returning to Congress compared to HB 14 it also increases
the chances of having a map imposed that loses Letlow instead while decreasing
the chances of achieving sooner their first-choice map. Odds are greater if
they pursue that course that they will be saddled with their least-preferred
choice.