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WHAT WAS THAT BIZARRO LOUISIANA VOTING RIGHTS DECISION ALL ABOUT?  
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Elie Mystal
May 17, 2024
The Nation
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_ In a topsy-turvy ruling, the conservatives on the Supreme Court
ordered Louisiana to use a VRA-compliant congressional map while the
liberals dissented. _

The US Supreme Court Building at night., Ralph Grunewald / Getty
Images

 

Earlier this week, the Supreme Court issued a stay
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should resolve the latest lawsuits over Louisiana’s congressional
redistricting plan, at least for a time. The court’s ruling locks in
a map that produces two majority-Black congressional districts for the
upcoming election, up from the one that existed under the map used in
2022. That makes the court’s decision a “win” for Black voters
in Louisiana—as well, most likely, for Democrats trying to claw
their way back to a majority in the House of Representatives.

Given that outcome, it will likely surprise people that the court’s
ruling was 6-3, with the six conservative justices handing the
additional district to Democrats, while the three liberal justices,
lead by Ketanji Brown Jackson (who happens to be Black) dissented.
But, as Jackson expertly explained in her dissent, there’s a bigger
set of issues underlying the case than would first appear.

To understand the dissent, you have to understand the context for this
litigation, which has been incredibly messy. After the 2020 Census,
the Republican-controlled Louisiana legislature produced a map for its
six congressional districts that resulted in only one majority-Black
district. That map was clearly the result of an illegal racist
gerrymander, because more than 31 percent of Louisiana’s residents
are Black. The legislature had to go out of its way to give a state
that’s almost a third Black only a single Black district.

The map was challenged in early 2022 by voting rights groups, which
said that it violated the Voting Rights Act. In June of that year,
District Court Judge Shelly Dick (a Barack Obama appointee) ruled that
Louisiana’s map was unconstitutional and ordered a new version to be
drawn with two majority-Black districts. But the Supreme Court put
Judge Dick’s ruling on hold while it considered a similar VRA case
in Alabama. That allowed Louisiana to hold a congressional election
with a map that a district court had already ruled was
unconstitutionally racist.

In 2023, the Supreme Court decided to uphold the VRA in the Alabama
case (_Allen v. Milligan_
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I wrote about here
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and, shortly after that ruling, the court allowed Dick’s ruling to
take effect. The state quickly appealed the ruling, however. The US
Court of Appeals for the Fifth Circuit upheld Dick’s ruling
(citing _Milligan_), but there was a catch: The Fifth Circuit ordered
the Louisiana legislature—not the court—to produce the new map.

In 2024, the state legislature dutifully produced a map with two
majority-Black districts, but the new map is what the political
scientists would call “ugly.” There’s a district (Louisiana
CD-6) that nearly bisects the state, east-to-west, in an unnatural
alignment that looks like it was picked out of a “ridiculous
gerrymanders” coffee-table book. As Ian Millhisier explains
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the likely reason the legislature drew the map this way was to protect
two powerful Congressmen—Steve Scalise and Speaker of the House Mike
Johnson. The Republican who gets screwed under this map, and now
represents the ugly CD-6, is Garret Graves, a person who is thought to
be a “rival” of Louisiana’s Republican Governor Jeff Landry.

In response to this new map, a group of 12 white voters—who
identified themselves as “non–African American voters”—filed
suit, claiming the new map violated the Equal Protection Clause of the
Constitution. The thrust of this group’s argument was that CD-6
violated principles of map-drawing by splitting apart natural
communities. It’s not unusual for gerrymandering cases to be brought
under the Equal Protection Clause, but it is unusual for aggrieved
white people to claim they’re being denied equal protection because
they’re not being _overrepresented_ by a redistricting map. I
guess if you think Black people should still count as only
three-fifths of a voter, the white equal protection argument makes
sense.

For procedural reasons I cannot pretend to understand, this challenge
wasn’t heard by Judge Dick in the middle district of Louisiana but
by a three-judge district court panel from the western district of the
state. On April 30, that panel (which included two judges appointed by
Donald Trump) found that the new maps were unconstitutional and ruled
in favor of the pissed-off white people. The court ordered the
Louisiana legislature to draw a _third_ congressional map.

The upshot of all this complicated back-and-forth was distressingly
simple: As of May 1, Louisiana had no constitutionally valid
congressional district map for the federal election in November.

That’s why the Supreme Court weighed in this week. The high court
stayed the Trump court’s ruling invalidating the map with the two
majority-Black districts, meaning that this map is once again back on
the books and will be used this November. In the process, the
court’s ruling locks in two Black districts and all but guarantees a
smooth reelection ride for Scalise and Johnson. It also means that
Louisiana, for now, does not have to go back to the literal drawing
board and come up with a different map.

Black voters in Louisiana fought very hard for this map, and getting
the conservative justices to agree to it, if only for the next
election, is a big victory. In dissent, however, Jackson (joined by
justices Sonia Sotomayor and Elena Kagan) revealed that there’s more
to the conservatives’ decision than meets the eye.

At issue before the Supreme Court was not the white challenge to the
map—and, more specifically, the question of whether it violates the
Equal Protection Clause—but the timing of that challenge: Louisiana
state officials argued that it is too late for them to draw a third
congressional map; the conservatives on the Supreme Court agreed.
Jackson, however, did not. She argued that there is still enough time
for Louisiana to come up with a constitutional map before the
election.

The legal principle under contention here is something called the
“Purcell Principle.” The term comes from a 2006 Supreme Court
case, _Purcell v. Gonzalez_ [[link removed]],
in which the justices unanimously agreed that courts should not alter
a state’s election rules or procedures “in the period close to the
election.” But the Supreme Court has never defined when “close”
to the election actually is.

The actual _Purcell_ case, which involved a challenge to Arizona’s
voter ID requirements, was brought in May of 2006, before the November
2006 midterm elections. A district court rejected the challenge on
September 11, 2006, but the Ninth Circuit Court of Appeals overruled
the district court and altered the voter ID requirements on October
12, 2006. The Supreme Court invented the Purcell Principle—and
overruled the Ninth Circuit—in a decision it issued on October 20,
just over two weeks before the election.

I think most people will agree that a couple of weeks before an
election is “in the period close to the election.” But Republicans
on the Supreme Court have been trying to extend that period to cover
nearly the entire election year. When you consider that Congress is
elected every two years, a Purcell Principle that covers the year in
which an election is held leaves little time to challenge the
constitutionality of election rules.

This is the heart of Jackson’s dissent. She writes: “In my view,
Purcell has no role to play here. There is little risk of voter
confusion from a new map being imposed this far out from the November
election.”

Remember, litigation against Louisiana’s map started in 2022, before
that year’s midterms. The legislature released this new map only in
2024. If it is unconstitutional, when the hell were the group of CD-6
voters supposed to challenge it? In 2025, after _another_ election?
Jackson is right to warn about this extension of the Purcell Principle
to cover essentially any election-year challenges to rules that will
affect that election cycle. Most of the time, it’s not going to be a
clutch of aggrieved white voters objecting to their district being
carved up under a Republican plan to protect their speaker of the
House; it’s going to be vulnerable people forced to contend with
whatever new voter-suppression rule Republican politicians invent to
disenfranchise them. If they can’t challenge those rules in an
election year, their political power can be taken away through the
bad-faith application of the Purcell Principle.

All that said, if Jackson had won this argument, the very likely
outcome of this particular case would have been that Louisiana would
have had to draft a third congressional map, and the state might have
tried to go back to a single majority-Black district, like the white
plaintiffs wanted. Then the litigation wheel would have needed to
start again. Eventually, the wrangling really might have come up
against the “too-close-to-the-election” threshold, potentially
locking in a racially unconstitutional map for yet another election
cycle.

Of course, Jackson is smarter than I am, and so she anticipates (and
dismisses) my concerns in a footnote. She writes: “The District
Court has not yet selected a remedial map, and, were it not for this
Court’s intervention, it may have selected a map that complies with
both [the Voting Rights Act] and the Equal Protection Clause. I would
have waited until after the remedial process concluded…” What
she’s saying is that without Supreme Court intervention, Louisiana
might have drawn a third, constitutional map that didn’t look like a
clown’s balloon animal, and if it didn’t there would still be time
for courts to fix it.

I’m sure there would have been time, objectively speaking, but I’m
also sure that her Republican colleagues would have ruled that time
had run out. Since Jackson knows that just as well as I do, I
interpret her footnote as an admission that she is willing to
sacrifice the short-term gain of the extra Black congressional
district, if it came to that, for the long term goal of limiting the
Purcell Principle.

Jackson and the liberals are doing something here that would be lauded
by the media if they were Republican: going against their party’s
immediate electoral interests because those interests produce bad law.
If Amy Coney Barrett did this, _The New York Times_ and _The
Washington Post_ would be writing love sonnets
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her.

We’re already at the point where liberals should be reading every
word Jackson writes. She’s always looking at the fights ahead of us,
because she understands what Republicans are going to do next. Jackson
simply isn’t willing to sacrifice a long-term legal position for a
near-term political gain. She’s playing a very long game here: She
must be confident that the American republic will survive long enough
to see it pay off.

I hope she’s right. But in the meantime, I hope Louisiana sends an
extra Democrat to Congress.

_ELIE MYSTAL is The Nation’s justice correspondent and the host of
its legal podcast, Contempt of Court
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He is also an Alfred Knobler Fellow at the Type Media Center. His
first book is the New York Times bestseller Allow Me to Retort: A
Black Guy’s Guide to the Constitution,
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Press. Elie can be followed @ElieNYC [[link removed]]._

_Copyright c 2024 THE NATION. Reprinted with permission. May not be
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