(CN) — One day after a federal panel of judges approved a court-drawn congressional map for Alabama’s 2024 congressional election, a nearly identical argument was considered by a panel of the Fifth Circuit Court of Appeals about Louisiana’s congressional districts.
Similar to Alabama, after the 2020 Census, the Louisiana Legislature enacted maps awarding just one of the state’s six congressional districts to a majority-Black voting-age population, although Black voters comprise nearly one-third of the state’s population.
Two groups of plaintiffs filed suit against the state over the new maps, claiming the majority-Black District 2 was illegally drawn to marginalize minority voters in New Orleans and Baton Rouge. Subsequently, Chief Judge Shelly K. Dick of the Middle District of Louisiana issued a preliminary injunction and ordered the state to produce new maps, but her decision was later stayed by the U.S. Supreme Court, pending the outcome of the Alabama case.
After the Court issued its decision in the Alabama case in June, affirming that Alabama must draw a second majority-Black district, it also took the Louisiana case off pause and sent it back to the Fifth Circuit to continue.
Simultaneously, the Fifth Circuit granted Louisiana’s request to cancel a lower court hearing scheduled for Oct. 3-5 on what new congressional districts would be in place for 2024, while it heard oral arguments Friday on whether the lower court’s original 2022 order to redraw the maps should be affirmed or reversed.
Representing Louisiana Attorney General Jeff Landry, attorney Jason Torchinsky told the panel the lower court’s decision should be vacated. U.S. Circuit Court Judge Leslie H. Southwick, an appointee of President George W. Bush, asked why the case should not proceed on the same path as Alabama, where the Legislature was given an opportunity to draw a new map.
Torchinsky argued the two states were “factually differently situated,” but he said if the case is remanded, the state should be awarded a full trial on the merits rather than a remedial hearing.
Both Southwick and U.S. Circuit Court Judge Jennifer Walker Elrod, also an appointee of George W. Bush, expressed concerns about whether a full trial would resolve the arguments prior to 2024 election deadlines. On rebuttal, Torchinsky suggested that the trial would have to conclude by the end of May.
Like Alabama, the judges then pressed the state about whether its map passed the so-called “Gingles test.” In order to demonstrate a violation of Section 2 of the Voting Rights Act, the plaintiffs must show three things: that a second district has a minority group large and compact enough to constitute a majority in a single-member district; that the group is politically cohesive; and that the minority group’s preferred candidate is often or always defeated, according to historical election data.
Attorney Phillip Strach, representing Louisiana Secretary of State Kyle Ardoin, said the plaintiffs have never provided evidence of geographic compactness for a second majority-Black district. Instead, Strach said, their remedial maps “try to stitch together disparate Black populations across the state” by “trying to connect pockets of Black communities hundreds of miles apart using whole parishes as kind of ‘white land bridges’ to connect those Black populations and … that's just inappropriate.”
Louisiana has parishes rather than counties.
Southwick said that based on emerging case law, the definition of so-called “communities of interest” is “flexible.” Why then, he asked, should the court focus on the state’s definition over that of the plaintiffs?
Strach said the lower court made a “legal mistake” applying the population compactness standard of the Gingles test because it was based on the opinion of a single witness for the plaintiffs.
“The burden is not on us to demonstrate what the community is,” he said. “What we've shown is that they stitch together the Black community based on skin color, and there is no other explanation.”
Representing a group of Black voters as plaintiffs on behalf of the NAACP Legal Defense and Educational Fund, attorney Stuart Naifeh said he has plaintiffs in every district to establish standing, and they would not oppose a trial on the merits. However he did express concern the state would use a trial to further delay proceedings, risking a map that would not be finalized for next year’s election. Further, Naifeh argued the second majority-Black district proposed in the plaintiffs’ remedial maps preserves a community of interest shared between the Mississippi River Delta and East Baton Rouge.
Abha Khanna, who also represented plaintiffs in the Alabama case, was pressed by the panel to show what guidance the U.S. Supreme Court provided Louisiana in its Alabama decision, if any at all. Khanna said both cases are guided by historical and cultural connections within minority districts, while the Alabama case considered quantitative and qualitative evidence that hasn’t yet been fully vetted in Louisiana. Speaking about the possibility of a trial, although Louisiana has a different election cycle than Alabama, Khanna urged the panel to work quickly.
“The plaintiffs should not be forced to play chicken with the election calendar,” she emphasized.
On rebuttal, both Southwick and Elrod noted their line of questioning should not be considered a metric on how they may decide the case. Elrod cautioned the state it cannot “have its cake and eat it too.” In other words, if a trial is ordered, it cannot be delayed indefinitely.
Separately, the plaintiffs have also appealed the court’s order canceling the remedial hearing to the Supreme Court and asked for an emergency pause and reversal of the order, but a hearing has not yet been scheduled.
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