Voting Rights and Democracy

Constitutional questions for Voting Rights Act abound in Louisiana map fight

After a yearslong fight to keep a map found to have diluted the power of Black voters, Louisiana is now struggling to keep the second majority-Black district it was forced to add.

WASHINGTON (CN) — A dozen voters told the Supreme Court on Monday to deny Louisiana’s request to use a congressional map with two majority-Black districts for the 2024 elections.

Louisiana added the second majority-Black district to comply with the Voting Rights Act, but self-described “non-African American” voters claim that the addition violated the equal protection clause of the U.S. Constitution.

“In late January 2024, Louisiana imposed a brutal racial gerrymander, SB8, on respondents and millions of other voters,” Edward Greim, an attorney with Graves Garrett representing the voters, wrote in a brief.

A panel of federal judges threw out Louisiana’s new map in April, leaving the state without a legal congressional map six months before an election. Louisiana and civil rights groups asked the Supreme Court to block the ruling, allowing the 2024 map to be used in upcoming elections.

“Louisiana’s impossible situation in this redistricting cycle would be comical if it were not so serious,” J. Benjamin Aguinaga, Louisiana’s solicitor general, wrote in its application.

Richard Pildes, a constitutional law professor at New York University, said the case “presents the biggest procedural quagmire in a Voting Rights Act case I can recall seeing.”

“One federal court held that Louisiana’s new congressional map for this decade violated the VRA,” Pildes said. “Then when Louisiana enacted a new map to remedy that violation, a different federal court held that this remedial map was also illegal, this time because it violated the Constitution.”

The fight over Louisiana’s congressional map started with the Legislature’s 2022 map. In 2022, the conservative majority allowed the state to use a Republican-drawn map that was found to have diluted the votes of Black voters. The high court ultimately ruled to uphold the lower court ruling it paused, forcing state lawmakers to draw a new map with a second majority Black district.

Although Louisiana took its time in doing so, lawmakers drew a new congressional map to comply with the Voting Rights Act. During the special session, Governor Jeff Landry remarked that “it’s time that we put this to bed.” The state was only able to do so for a week before the map drew another challenge.

The “non-African American” voters claim that in creating a second majority-Black district, Louisiana created a racial gerrymander.

“Direct evidence from the legislative record confirms what the naked eye and statistical analysis proves: the overwhelming factor driving District 6 was race,” Greim wrote. “It was to bring BVAP [Black voting-age population] over 50% and award the long-elusive second Black-majority district (out of six total districts) to a statewide Black population that is under 1/3 of the total.”

The civil rights groups said it would be incongruous if the solution to a Section 2 violation constituted an unlawful racial gerrymander.

Voting rights experts said this conundrum was intentional.

“Conservatives are trying to use constitutional racial gerrymandering causes of action to make an end run around rulings that Louisiana was violating Section 2 of the Voting Rights Act,” Richard Hasen, a UCLA law professor and director of the Safeguarding Democracy Project, said in an email. “The argument puts pressure on the constitutionality of the VRA itself as a race-conscious remedy in redistricting.”

The tension between the Voting Rights Act and the equal protection clause has long been litigated before the court. Justice Brett Kavanaugh, a Donald Trump appointee, described this area of law as “notoriously unclear and confusing.”

“This case is the latest in a long-running attack on the Voting Rights Act by conservative litigants insisting the act is an affront to principles of color blindness,” David Gans, director of the human rights, civil rights & citizenship program at the Constitutional Accountability Center, said in an email. “The court rebuffed a particularly aggressive version of the argument in Milligan but it’s back in this case.”

In Allen v. Milligan, the court rejected an effort to reshape Section 2 by including a “race-neutral benchmark.” The 5-4 ruling came as a surprise to some court watchers who expected the Roberts court to further curtail the Voting Rights Act.

It’s not clear, however, if this was a signal of support for the landmark law or a case-specific ruling. The majority only agreed to uphold prior precedents, noting the limited nature of the ruling. Kavanaugh joined the majority, but his opinion suggested he may be open to reviewing the constitutionality of race-based redistricting in the future.

In dissent, Justice Samuel Alito, a George W. Bush appointee, made it clear that there was a high bar to using race as a predominant factor when drawing legislative districts. Alito said that if Section 2 required the creation of a majority-minority district that used race as a predominant role, “Section 2 and the Constitution would be headed for a collision.”

Louisiana suggested that the court review the constitutionality of adding a second majority-Black district to comply with the Voting Rights Act. That review wouldn’t come until the next term, however, so the state invoked a different precedent to argue for a stay on the lower court ruling.

“This case screams for a Purcell stay,” Aguinaga wrote. “The late-breaking injunction — plus the court’s blowing through election deadlines in search of an imaginary, litigation-proof 2024 congressional map — is the precise sort of ‘[l]ate judicial tinkering with elections law’ that threatens ‘disruption and unanticipated and unfair consequences for candidates, political parties, and voters, among others.’”

Louisiana said it needs to have a finalized congressional map by May 15 to prepare for upcoming elections.

Stemming from Purcell v. Gonzalez, a Purcell stay is typically ordered when litigation comes too close to an election.

“Usually Purcell has operated against voting rights litigants,” Gans said. “Will the court apply Purcell or carve out an exception to block a district created to remedy a Voting Rights Act violation? That’s an important question to consider as we await a ruling.”

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