A 5th U.S. Circuit Court of Appeals panel Thursday night postponed a Baton Rouge federal district court order that would require the Louisiana Legislature to convene in special session next week and redraw the maps that will elect Louisiana’s congressional delegation.
Legislative leaders early Friday morning asked Gov. John Bel Edwards to rescind the special session call, saying the meeting at this point would be "unnecessary and premature."
In a joint statement, Senate President Page Cortez, R-Lafayette, and House Speaker Clay Schexnayder, R-Gonzales, said: "Until the courts have made a final determination on the congressional maps as they were passed by a super majority of the Legislature, we are asking the Governor to rescind his special session call. Before the judicial redistricting process is complete, any special session would be premature and a waste of taxpayer money."
Many of the Republican lawmakers were waiting, hoping, the 5th Circuit would lift the Baton Rouge judge's order and sideline the need for a special session. The regular 2022 session of the Legislature adjourned Monday.
U.S. District Judge Shelly Dick, of Baton Rouge, on Monday found that the Louisiana Legislature had the time to redraw the congressional maps to include two districts in which minorities had a reasonable opportunity to elect the candidate of their choice. She ordered lawmakers to come up with new election maps by June 20, which in turn caused Democratic Gov. John Bel Edwards to call a five-day special session to begin Wednesday.
Dick on Thursday afternoon refused to stay her order. But the three-judge 5th Circuit panel did so on Thursday night, ordering both sides – minority voters as plaintiffs and Louisiana legislators and Secretary of State Kyle Ardoin as defendants – to deliver their responses by 4 p.m. Friday.
Edwards had to hastily call a special session, which he did Tuesday, in order to meet the legal timelines required by Dick’s order.
Though some say Edwards can withdraw the special session call, the state Constitution is unclear on that point. Lawmakers had been considering convening Wednesday, then adjourning within minutes as the 5th Circuit stay order keeps them from doing any of the remapping that the trial court had demanded.
The issue the 5th Circuit is considering, at least for the time being, is not over which side’s arguments are constitutionally correct, but over the timeline of doing what trial Judge Dick, who was appointed by President Barack Obama, says needs to be done and whether it can be done in time for Ardoin to stage the November elections.
Slidell Sen. Sharon Hewitt and Crowley Rep. John Stefanski, the two Republican chairs of the committees in charge of redistricting, said Thursday afternoon prior to the 5th Circuit ruling that the Legislature did not have adequate time to redraw the maps that would allow for a second minority opportunity district before candidates began qualifying for the November election in late July. Besides, both Hewitt and Stefanski said in separate interviews, two thirds of the 144 state lawmakers already have said they were fine with districts that that would favor White Republicans in five of the six congressional districts and one Black Democrat. The Legislature in February approved that configuration.
Edwards vetoed that map saying the state’s population required two districts in which Black candidates have a reasonable chance of winning. Two-thirds of the legislators voted in March to overturn that veto and enact their redistricted congressional maps.
Sen. Cleo Fields, D-Baton Rouge, who sponsored one of the maps that would add a second majority Black district, said Friday morning he would not second guess the governor's decision to call a special session.
"The governor has issued what he has issued," Fields said. "I don't know if you can rescind. I think there is some constitutional question."
"Let's assume the constitution doesn't allow him to rescind it," Fields added. "Then obviously we could come in and then adjourn sine die," meaning a motion to end the session.
How long it will take to get a final court decision is unclear, especially if the case makes it to the U.S. Supreme Court.
"I don't think anybody was under any impression it wouldn't be decided by the Supreme Court," said Fields, an attorney.
He said Thursday Dick's ruling is "pretty airtight in my view."
Under Fields' proposal, the 5th congressional district would become Louisiana's second majority Black district by adding voters from East Baton Rouge, which is in the 6th district.
Hewitt, who played a major role in the maps on the Senate side, said Friday rather than any final adjudication of the case courts could allow congressional elections to proceed with the boundaries in place now.
"What has been happening in other states is the courts have said let's conduct the elections, the congressional elections, based on the maps the Legislature just drew and litigate the merits (later)," Hewitt said.
She said some lawsuits over boundaries drawn in 2010 took eight or nine years to resolve.
"I would say I believe that the map that we passed is the best map and that is complies with all the federal laws and state laws," Hewitt said.
Stefanski on Friday echoed Hewitt's views about allowing elections to proceed using the map endorsed by lawmakers.
"From a time perspective that is probably the most logical decision; we will have a full trial on the merits but for the purpose of this election let's use the map that was passed," he said.
Stefanski noted that the map won the support of two-thirds of the GOP-controlled Legislature.
The 5th Circuit’s stay order was issued by a three-judge panel of the 17-seat appellate court. Sitting on the panel are Circuit Judges Jerry Smith, of Houston and appointed by President Ronald Reagan; Stephen A. Higginson, of New Orleans and appointed by President Barack Obama; and Don Willett, of Austin and appointed by President Donald Trump. Attorney General Jeff Landry tweeted the news.
The lawsuit argues that the new map passed by the Legislature continues Louisiana’s “long history of maximizing political power for White citizens by disenfranchising and discriminating against Black Louisianans.” It notes that while Black residents make up 31.2% of the state’s voting age population, Black voters control only around 17% of the state’s congressional districts. Meanwhile, White voters, who make up 58% of the population, form a majority in 83% – or five of six – districts.
Decades ago, the U.S. Supreme Court established a three-part test to determine whether a districting plan violates Section 2 of the federal Voting Rights Act. First, plaintiffs must prove that the minority population is “sufficiently large and geographically compact” to support a map with a second majority-minority district.
Next, they must prove that Black voters are “politically cohesive” and that White voters tend to vote as a bloc to defeat candidates preferred by Black voters. In essence, the courts are asking whether voting is racially polarized, or in simpler terms, whether Black and White voters in Louisiana consistently vote differently.