The Fifth Circuit decided to obey the law, for a change.
Judge Leslie Southwick testifies during his confirmation hearing. Getty Images Ian Millhiser is a senior correspondent at Vox, where he focuses on the Supreme Court, the Constitution, and the decline of liberal democracy in the United States. He received a JD from Duke University and is the author of two books on the Supreme Court.
Last Friday, a federal appeals court nudged Louisiana toward redrawing its congressional maps to include a second Black-majority district.
Although the new decision in this case, known as Robinson v. Ardoin, does not outright order Louisiana to redraw its maps, the appeals court found no errors in a trial court decision that determined the current maps are a racial gerrymander that violates the federal Voting Rights Act. The case will return to the trial court, albeit on a delayed schedule, which is likely to hand down a final decision requiring Louisiana to actually redraw its maps sometime in 2024.
If you are the sort of person who believes that lower court judges follow the legal rules and precedents handed down to them by Congress and the Supreme Court, then the Robinson decision will not surprise you.
The plaintiffs in this case challenged Louisiana’s congressional maps, which include only one Black-majority district out of six, despite the fact that African Americans make up about one-third of Louisiana’s population. In defending its existing maps, Louisiana largely relied on arguments that closely resembled claims Alabama unsuccessfully made in Allen v. Milligan (2023), a similar redistricting case handed down by the Supreme Court.
Indeed, as the appeals court acknowledges in its Robinson opinion, “most of the arguments the State made here were addressed and rejected by the Supreme Court in Milligan.”
But the decision should surprise anyone who follows how judges actually behave when they encounter a case where the correct legal answer does not align with their partisan preferences. That’s because the new opinion in Robinson was handed down by the United States Court of Appeals for the Fifth Circuit, a court dominated by MAGA stalwarts and other far-right judges who routinely ignore binding Supreme Court precedents to reach results preferred by the Republican Party.
Indeed, just last month, two Fifth Circuit judges handed down a bizarre order whose sole purpose seemed to be delaying a final ruling in the Robinson case that would require Louisiana to actually redraw its maps. Such a delay won’t necessarily prevent the maps from being redrawn, but it could stop the new maps from being implemented until after the 2024 election — effectively giving Republicans a free US House seat for two additional years.
That delaying order was handed down by Judges Edith Jones and James Ho, two of the most unapologetic Republican partisans in the entire federal judiciary. Jones is a former general counsel to the Texas Republican Party. And Ho, if anything, makes Jones look moderate — his rulings on a wide range of issues, from guns, to abortion, to campaign finance often read like they were written by online trolls who are intentionally trying to provoke and anger liberals.
The Friday order in the Robinson case suggests that at least some Fifth Circuit judges aren’t willing to distort the law in the same way that judges like Jones and Ho routinely do in their opinions. Indeed, the most likely explanation for why the Fifth Circuit seemed to reverse course in its latest Robinson order is that its most recent decision was handed down by a panel of three different judges, at least two of whom are less extreme than Jones or Ho. The more recent panel includes Judge Carolyn King, a center-left Carter appointee, and Judge Leslie Southwick, a center-right George W. Bush appointee who sometimes breaks with his court’s MAGA faction.
Nevertheless, the Friday opinion was also joined by Judge Jennifer Elrod, a hardliner who typically votes with judges like Jones or Ho. So it is notable that even Elrod did not find a reason to dissent from the decision holding that Louisiana must redraw its maps.
That said, the latest Robinson decision is not a total victory for the plaintiffs who brought this case, or for the Democratic Party that is likely to gain an additional House seat because of it. Among other things, the decision potentially allows the state to delay any additional court proceedings in this case until next January 15, in order to give the state legislature time to “enact a new congressional redistricting plan” that does not violate the federal ban on racial gerrymandering. But such a delay could potentially prevent the courts from putting in place new maps until after the 2024 election.
The Supreme Court has ruled that federal courts should refrain from handing down decisions that could alter a state’s election laws as that election draws close. Worse, while the Supreme Court has not said exactly when this “no new changes to state election law” rule kicks in, at least some justices have suggested that courts may not make such changes as much as nine months prior to an election.
So, while the Fifth Circuit’s latest decision in Robinson is good news for Louisiana’s Black voters, and for Democrats who will likely gain a House seat once the maps are redrawn, there is still a serious risk that the courts will sit on this case long enough to leave the state’s current, gerrymandered maps in place during the 2024 election.
So what is the Robinson case about?
Last year, acting pursuant to its constitutional obligation to redraw the state’s maps every 10 years, Louisiana’s Republican legislature divided the state up into six congressional districts — five of which elected a white Republican, and one that elected a Black Democrat in 2022. These maps were enacted over the veto of Democratic Gov. John Bel Edwards.
About one-third of Louisiana’s population is Black, so the Republican maps effectively give Black Louisianans half as much ability to elect House candidates of their choice as their population suggests that they should enjoy. In Louisiana, voters are racially polarized, with 88 percent of Black voters preferring Democrat Joe Biden in 2020, and 77 percent of white voters preferring Republican Donald Trump.
Not long after the state legislature enacted these maps, a federal trial court determined that they violate the federal Voting Rights Act’s safeguards against racial gerrymandering. That decision has not yet taken effect, however, because the Supreme Court put the case on pause while it considered Milligan, an Alabama redistricting case that, Louisiana’s lawyers told the Supreme Court, “presents the same question” as the one raised by Robinson.
But last June, the Supreme Court ruled in Milligan that Alabama’s congressional maps are an illegal racial gerrymander and that Alabama must draw an additional district where Black voters may elect their preferred candidate. And, as the Fifth Circuit notes in its latest Robinson opinion, the trial court that heard the Louisiana case “came to the same conclusion as the Alabama district court that was affirmed in Milligan, based on ‘essentially the same’ record and arguments.”
Which isn’t to say that Louisiana doesn’t raise any arguments that weren’t raised in Milligan, but its new arguments are exceptionally weak. At one point, for example, Louisiana argued that the Supreme Court’s decision in Students for Fair Admissions v. Harvard, which largely abolished affirmative action in university admissions, also invalidates longstanding safeguards against racial gerrymandering.
Yet this argument makes no sense. Harvard was handed down three weeks after Milligan, and all of the justices who formed the Harvard majority also sat on the Milligan case. So it would be exceptionally strange for the Supreme Court to reaffirm these safeguards against gerrymandering in Milligan, only to walk away from that decision in the very same month.
All of which is a long way of saying that the Fifth Circuit would have had to make some exceedingly strained legal arguments in order to justify upholding Louisiana’s maps. And it appears that the three judges who handed down the latest opinion in Robinson were not willing to strain themselves to the breaking point.
There’s still plenty of opportunities for mischief in this case
The Fifth Circuit’s precise holding in its latest Robinson order is that the Louisiana legislature may take until January 15 to redraw its maps, and then the trial court may give the case another hearing and, most likely, issue a final decision ordering the state to redraw its maps to include a second majority-Black district (such an order won’t be necessary if the state elects to draw new maps that comply with the Voting Rights Act).
But this whole process will take time. As the Fifth Circuit notes, Louisiana’s lawyers “suggested a May 30 deadline for a new map to be drawn, approved, and enacted for the 2024 elections.” And then this map might be challenged on appeal.
There’s no good reason why the trial court can’t draw such a map in May, or why the state can’t run its 2024 congressional elections using the court-drawn map. But the Supreme Court has held, in Justice Brett Kavanaugh’s words, that “federal courts ordinarily should not enjoin a state’s election laws in the period close to an election.” And, while the Supreme Court has never defined how many months before an election counts as “close to an election,” Kavanaugh has indicated that this blackout period may begin as much as nine months prior to a general election.
All of which is a long way of saying that, while it looks like the courts will eventually get around to ordering Louisiana to draw maps with a second majority-Black district, there’s a serious risk that they draw this case out long enough to ensure that the current, GOP-friendly maps stay in place for at least one more congressional election.