Jackson sides with SCOTUS majority over gerrymandering, demands Louisiana make new map quickly


Supreme Court nominee Judge Ketanji Brown Jackson issued a brief statement on the justices’ decision to leave a lower appellate ruling in place in a major voting rights case. (AP Photo/Carolyn Kaster)

U.S. Supreme Court Justice Ketanji Brown Jackson sided with Justice Samuel Alito in a shadow-docket ruling that left in place a conservative appeals court ruling on a voting rights case Thursday — but not without making her take on race-based gerrymandering clear.

The case of Galmon v. Ardoin has traveled up and down the federal court system since 2022, when a group of Black voters and nonprofit organizations in Louisiana sued to challenge the state’s new congressional map for illegally diluting the voting strength of Black residents. The districting map was passed only after the Republican legislature overrode Democratic Gov. John Bel Edwards’ March 2022 veto.

Section 2 of the Voting Rights Act (VRA) prohibits voting practices or procedures that discriminate against people on the basis of race and the plaintiffs in the lawsuit noted that while one-third of Louisiana’s residents are Black, only one of the state’s six congressional districts has a Black voting majority. Louisiana’s Republican legislative leaders as well as its state attorney general joined the lawsuit to defend the newly-adopted map.

The district court blocked Louisiana from using its congressional map in June 2022, then ordered the legislature to create a new map with a second majority-Black district within 14 days. The case was volleyed between the U.S. Court of Appeals for the Fifth Circuit — one of the nation’s most conservative appeals courts — and the U.S. Supreme Court several times.

Ultimately, the justices ruled 6-3 in June 2023 to block Louisiana’s gerrymandered map, thereby forcing the state to add a second majority-Black district.

The district court then scheduled a hearing for early October 2023 for the purpose of creating a new map. However, Louisiana appealed to the Fifth Circuit, arguing that the legislature should have been given a chance to comply with the lower court’s ruling on its own; the Fifth Circuit agreed and ordered the district court, via a writ of mandamus, to cancel its hearing.

In the Fifth Circuit’s 2-1 ruling, Ronald Reagan appointee U.S. Circuit Judge Edith Jones reasoned:

The district court did not follow the law of the Supreme Court or this court. Its action in rushing redistricting via a court-ordered map is a clear abuse of discretion for which there is no alternative means of appeal.

The map’s challengers returned to the justices in September to request an emergency ruling that the Fifth Circuit’s writ of mandamus be put on hold and arguing that the appellate court’s use of such an order had been “flagrantly inappropriate.”

On Thursday evening, the justices handed down in an unsigned order on the Court’s so-called “shadow docket” to leave the Fifth Circuit’s writ of mandamus in place.

Jackson, however, issued a brief solo statement in the case clarifying the limits of her concurrence with the Court’s decision — and pointing out one way Louisiana must prepare to be held to the arguments it has made.

“First, nothing in our decision not to summarily reverse the Fifth Circuit should be taken to endorse the practice of issuing an extraordinary writ of mandamus in these or similar circumstances,” Jackson clarified in her three-paragraph opinion.

Jackson then quoted the Supreme Court’s past ruling and reminded the litigants, “as we have previously emphasized, this litigation should be resolved ‘in advance of the 2024 congressional elections in Louisiana.’”

The justice next called upon Louisiana to stand by what it declared in its filing before the justices:

The State has now represented, in its filings before this Court, that the legislature will not consider such maps while litigation over the enacted map is pending. See Response to Emergency Application for Stay of Writ of Mandamus in Nos. 23A281, 23A282, p. 16.

Given that the Republican-controlled legislature does not plan to consider the redistricting process as litigation over the map it already approved proceeds, Jackson offered an interpretation of the duration of the Fifth Circuit’s writ of mandamus.

“I read the Fifth Circuit’s mandamus ruling to require the District Court to delay its remedial hearing only until the Louisiana Legislature has had sufficient time to consider alternative maps that comply with the Voting Rights Act,” wrote Jackson.

“Therefore, the District Court will presumably resume the remedial process while the Fifth Circuit considers the State’s appeal of the preliminary injunction,” the justice wrote in a sentence that appeared more of a demand than a prediction.

A hearing for selecting a new map is scheduled to start in early February.

Jackson, the Court’s newest and first-ever Black woman justice, has been unambiguous about her take on race-based gerrymandering. In an Alabama case strikingly similar to the Louisiana one, Jackson made lengthy comments from the bench that dismantled any suggestion that either the Constitution or the VRA requires districting to be race-blind.

Jackson said in the Alabama case that the intent behind the 13th, 14th, and 15th Amendments was precisely to stop discrimination against Black voters:

They were in fact trying to ensure that people who had bene discriminated against — the Freedmen during the Reconstruction period — were actually brought equal to everyone else in society. So I looked at the Report on Reconstruction, which drafted the 14th Amendment. And that report says that the entire point of the Amendment was to secure rights to freed former slaves. The legislator who introduced that Amendment said that “unless the Constitution should restrain them, those states will all, I fear, keep up this discrimination and crush to death the hated Freedmen. That’s not a race neutral or race blind idea in terms of the remedy.

Read the court’s order and Jackson’s concurrence here.

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