After the Supreme Court knocked down Alabama’s gerrymandered map in June, court watchers, redistricting experts and those invested in which party controls the House of Representatives did quick napkin math to figure out where that decision would redound.
One obvious answer was Louisiana, where a district court had enjoined the congressional maps as a likely VRA violation last summer. The Supreme Court froze that case in place in June 2022, pending the outcome of the very similar Alabama one.
Now the case is moving again. But the Louisiana litigants — and the 5th Circuit Court of Appeals — are working to scuttle the automatic redistricting fix many expected. They seem to be procedurally walking in slow motion, trying to delay producing a map that empowers Black voters and would likely give Democrats a House seat until they butt up against the 2024 elections and run out of time.
The Louisiana officials, looking to wriggle out of an upcoming hearing where the parties would hash out a remedial map if needed — the injunction on the original map is still being appealed — lobbed a Hail Mary to the 5th Circuit, seeking an unusual writ of mandamus to get the district court’s hearing canceled. It worked.
The 5th Circuit panel handed down a ruling dripping with sympathy for the state officials, who simply didn’t have enough time, in the 11-week lead-up the district court gave them, to craft a hypothetical replacement map.
“Redistricting based on Section 2 of the Voting Rights Act is complex, historically evolving, and sometimes undertaken with looming electoral deadlines,” chided Judge Edith Jones, a Ronald Reagan appointee, in a ruling published late last week. “But it is not a game of ambush.”
“If that’s an ambush, it’s the slowest-moving ambush anyone’s ever seen,” Justin Levitt, a professor at Loyola Law School and former White House senior policy advisor for democracy and voting rights, scoffed to TPM.
As Judge Stephen Higginson, a Barack Obama appointee, pointed out in his incredulous dissent, the Louisiana officials had the full 11 weeks plus the preparation they’d done before the Supreme Court’s intervention, which happened the day before a similar hearing was scheduled last year. And for the duration of the year since, they were on notice that their maps may not pass muster.
On its face, the 5th Circuit’s intervention was highly unusual. As Levitt pointed out, writs of mandamus are usually reserved for extreme cases of court malfeasance — not micromanaging a lower court’s docket.
Doug Spencer, an election law and redistricting expert at the University of Colorado Boulder law school, called it “striking to see an appellate court insert itself into the minutiae of a trial in this way.”
There are likely ulterior motives afoot, beyond sluggish cartography skills. If Louisiana can slow-walk the map redraw, with assistance from an acquiescent 5th Circuit, it could push the process out close enough to the 2024 election to argue that there simply isn’t enough time to produce new, legal (more Democratically favorable) maps. Conversely, that dynamic is also why the district court is trying to keep things moving at a rapid clip, so a map can be ready to go should the state’s appeals fail.
This foot-dragging is an increasingly popular strategy, especially among red states. Alabama tried a version of it too, refusing to craft a remedial map and instead firing off time-sucking appeals even after losing at the Supreme Court.
“Stopping the hearing in this context, where there is some real urgency to have a map drawn if it turns out the preliminary injunction holds — particularly where Louisiana voters have already waited an election for justice — is particularly, particularly weird,” Levitt said, referring to the 2022 elections held under the challenged maps. “It just compounds the damage.”
The Louisiana officials seem to be trying to take advantage of the what has become a touchstone for some of the high court justices, the so-called Purcell “principle,” the inconsistently applied doctrine that courts shouldn’t change election procedures too close to the election because it risks confusing voters and setting impossible logistical challenges for administrators.
The problem is, the Supreme Court has been all over the map in terms of how close is too close. In the Alabama case, when the Supreme Court froze a lower court ruling requiring new maps, Justice Brett Kavanaugh explained in his concurrence that the Court was just following Purcell. As Justice Elena Kagan pointed out in dissent, the district court had made its ruling nine months before the 2022 general elections.
And many of their election law-related decisions are increasingly coming through the shadow docket with no explanation at all as to their thinking or timelines.
For the Louisiana officials, delay might get them out of having to craft an additional Black majority or Black opportunity district that will likely elect a Democrat. And it comes with little risk of any actual repercussions.
“In the end, Louisiana is almost 100% certainly going to need to draw a second minority opportunity district,” Spencer said. “Whether the state can continue to stall that inevitability is an open question and will depend on future actions by the 5th Circuit.”