January 26, 2024

Judges and Democracy

Russ Feingold President

Finally, the Louisiana legislature has complied with the courts and redrawn its legislative maps to include two majority-Black congressional districts. This outcome in favor of representative democracy is a timely reminder of why courts matter come election time.

It has now been a few years since all states have redrawn their electoral maps based on the results of the 2020 census and with the redistricting process came a wave of litigation challenging those maps. Louisiana was one of many states who fought in court to defend maps against claims of racial gerrymandering.  In Robinson v. Landry, a group of Louisiana voters and members of the civil rights coalition successfully claimed that the state’s maps violated Section 2 of the Voting Rights Act.  This litigation paralleled the claims and facts at issue in Merrill v. Milligan, where Alabama’s legislature was found to have racially gerrymandered their congressional maps to include only one majority-Black district. In both states, conservative legislatures drew congressional maps that intentionally diluted the influence of Black voters. Louisiana is nearly a third Black, and yet the original electoral maps contained only one majority-Black district out of six total. In 2022, the Supreme Court took up Merrill and put the Louisiana case on hold pending the outcome. Last June, the Supreme Court handed down its decision in Merrill, ruling that Alabama’s congressional map violated the Voting Rights Act and requiring the state to redraw it. The Court subsequently released the Louisiana case, with instructions for the lower court to apply the holding in Merrill. That was last June. Fast forward seven months and the Louisiana legislature finally gave in to the legal reality of their situation. As a result, Louisiana voters will go to the polls this November with a greater opportunity to elect congressional representatives that reflect the values and priorities of their communities.

There are three takeaways from this that I want to highlight. One, the power of federal courts that are not the Supreme Court. While the outcome in Robinson v. Landry was influenced by the Supreme Court, it was never actually heard by the Court. And, even after Merrill v. Milligan was decided, the Louisiana legislature sought to defy the holding. The district and circuit courts spent the last several months denying the state’s attempts to avoid redrawing its maps in compliance with Section 2 of the Voting Rights Act.

This leads to the second point, and that is the importance of filling judicial vacancies in red states. I've remarked on this a lot recently, in response to the data compiled and published by Professor Mark Lemley. Increasingly, presidents are focusing their attention on judicial vacancies in states that align with their own political party. This is particularly evident with the current and previous administrations. The Trump administration prioritized red states, and the Biden administration is now prioritizing blue states. In the end, we all lose.

The President does the country a disservice when they prioritize only certain states, contributing to entire district courts that are dominated by a particular ideology. The redistricting outcome in Louisiana is a big deal for representative democracy, and the district court judge who heard the case and initially ruled that the original map was an illegal gerrymander was an Obama appointee. We need judges who are committed to the rule of law, to vindicating our fundamental freedoms, and to safeguarding democracy across the country, not relegated to only certain states.

This is why we at ACS are urging the White House and the Senate to do more to fill red state vacancies. We cannot afford to solidify two systems of justice in this country, with red courts and blue courts issuing conflicting decisions and teeing up the U.S. Supreme Court’s conservative supermajority to reshape the country as it sees fit. The majority of district court vacancies right now are in red states. We cannot afford for the Biden administration to write those vacancies off and punt them to a future administration. It is not too late for the White House and Senate to work together to fill all red state vacancies this year.

The third takeaway is how profoundly courts impact elections. We usually say this in the weeks just before or after an election, when judges are ruling on cases related to election administration, but it applies long before Election Day. Redistricting absolutely impacts elections. While Louisiana is now being brought into compliance with the Voting Rights Act, the Supreme Court enabled the state to use racially gerrymandered maps for the 2022 election cycle when it put the case on hold, freezing the maps as they were – gerrymandered. With the House of Representatives so closely divided between the two political parties, the redrawing of one state’s congressional maps can impact which party controls Congress. The fight to secure the promise of a multiracial democracy in this country goes through the courthouse. If you care about fair elections and representative democracy, you have to care about the courts.