For now, LA legislative map decision does little

Blog: Between The Lines

Abstract

There's much less to the eye regarding the ultimate
impact of the decision
recently rendered in Nairne
v. Landry than the possibility this case eventually could upend reapportionment
jurisprudence very much in the opposite direction of the ruling.

The case involves reapportionment of Louisiana's
legislative districts after the 2020 census, involving plaintiffs similar to
those in the winding-down case regarding reapportionment
of its congressional districts. In that other case, the same Middle
District of Louisiana Judge Shelly Dick ruled an expansive reading of Title 2
of the Voting Rights Act that gives race (given certain circumstances) preference
over other traditional principles of reapportionment (absent compelling
circumstances), essentially sidestepping the text of the law that says it does
not normally confer proportional representation of racial minorities in a state.

In ruling that the state had to draw a map with
two of six black majority-minority districts because about a third of the
population identified as black, which impelled the Legislature to do precisely
that although its product almost certainly is constitutionally defective because
in order to do that race took on a dominant role in making the map, Dick
applied the same rubric to legislative districts. The legal backing for this
she derived from a U.S. Supreme Court decision last year that affirmed custom
over the past six decades and an expanded view of the VRA language as developed
through past court cases allowed for elevating the place of race.

The Legislature was given no deadline to swap in a
new map, where it is implied that at least two more Senate and six more House
seats became M/M. (Keep in mind, however, that no case ever has been decided on
the merits validating the proportional argument, much less ended up being
applied by a government by court order.) Practically speaking, this doesn't become
an issue until at latest the start of 2027 for fall elections that year.

While some observers without a comprehensive
understanding of the issues blithely assume the
Legislature will do this, chance are much greater it never will come that.
(Actually, given the greater tolerances courts permit for malapportionment and
for adhering to other principles of reapportionment when it comes to offices
other than Congress, the partisan balance would change little as both chambers
could draw new maps that essentially swap out elected white Democrats with
black Democrats.) That's because the case has at least one time bomb included
that could blow up the current interpretation of the VRA Section 2 and
guarantees when plaintiffs plea for a remedy (at
present, special elections with a new map later this year) the state will appeal
and many motions later serve it up to the Court. Nothing politically will
happen for some time to come.

There's actually another aspect that could cause
this: a split between federal appellate court circuits on whether private
parties can bring suits under that law, which guarantees eventual Supreme Court
intervention. However, existing
jurisprudence suggests that the Court will reject the argument no private
right of action exists, which for Nairne is irrelevant anyway because
the Fifth Circuit holds that view.

The state as defendant articulated that defense,
but Dick rejected it precisely because the Circuit had done so. But while the main
land mine of questioning over the current interpretation of the VRA Section 2 she
could dodge for now, ultimately she can't make go away.

That results from the Assoc. Justice Brett Kavanaugh
concurrence
in the case that granted race its new privileged place. In it, he questioned
whether that privileging had become timebound, as the nature of society about
race has changed substantially in the decades since, but didn't adjudicate that
because that other case didn't bring it up.

But Louisiana unambiguously did forward that
argument in a filing in Nairne. Dick addressed the issue in her ruling
as minimally as she dared in dismissing it, which isn't unusual (as well allows
her decision to reflect her own political preferences). Lower court judges are
extremely reluctant to base rulings on any Court opinions not the majority,
leaving that up to the Court itself.

However, that avoidance doesn't make the issue go
away. Undoubtedly the state will appeal and it's inconceivable that the Court at
some point wouldn't take up the case on those constitutional grounds (as well
as perhaps others dealing with the statute) – unless another case elsewhere (for
example) gets there first. And the tone from the previous case suggests the
Court would strike down the expansive reading of Section 2 as timebound.

Chances are excellent even with the inevitable string
of appeals this reversal will happen before 2027. In the final analysis, the Nairne
ruling changes little, and expect Louisiana to do little in response to it
except continue to fight the case up to the Supreme Court.