The Louisiana Legislature’s first session of 2024 will begin on Monday, 15 January, to deal in large part with a federal court’s order to create a second majority-minority federal congressional district. It should be a quick session; the Legislature should simply refuse to comply.
They have solid justification for doing so. First, the federal constitution gives plenary power over congressional elections to the State legislatures and to the federal legislature:
‘The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators (Article I, Sec. 4).’
The federal courts are good at twisting words and phrases, but not even they can insinuate themselves into those lines.
Second, federal civil rights legislation doesn’t require it. Justice Clarence Thomas is downright blunt in his dissenting opinion in Allen v Milligan (2023):
In enacting the original Voting Rights Act in 1965, Congress copied this definition almost verbatim from Title VI of the Civil Rights Act of 1960—a law designed to protect access to the ballot in jurisdictions with patterns or practices of denying such access based on race, and which can-not be construed to authorize so-called vote-dilution claims. See 74 Stat. 91–92 (codified in relevant part at 52 U. S. C. §10101(e)). Title I of the Civil Rights Act of 1964, which cross-referenced the 1960 Act’s definition of “vote,” likewise protects ballot access alone and cannot be read to address vote dilution. See 78 Stat. 241 (codified in relevant part at 52 U. S. C. §10101(a)). Tellingly, the 1964 Act also used the words “standard, practice, or procedure” to refer specifically to voting qualifications for individuals and the actions of state and local officials in administering such require-ments.1 Our entire enterprise of applying §2 to districting rests on systematic neglect of these statutory antecedents and, more broadly, of the ballot-access focus of the 1960s’ voting-rights struggles. . . .
In any event, stare decisis should be no barrier to reconsidering a line of cases that “was based on a flawed method of statutory construction from its inception,” has proved in-capable of principled application after nearly four decades of experience, and puts federal courts in the business of “methodically carving the country into racially designated electoral districts.” Holder, 512 U. S., at 945 (opinion of THOMAS, J.). This Court has “never applied stare decisis mechanically to prohibit overruling our earlier decisions determining the meaning of statutes,” and it should not do so here. Monell v. New York City Dept. of Social Servs., 436 U. S. 658, 695 (1978). Stare decisis did not save “separate but equal,” despite its repeated reaffirmation in this Court and the pervasive reliance States had placed upon it for decades. See, e.g., Brief for Appellees in Brown v. Board of Education, O. T. 1953, No. 1, pp. 18–30. It should not rescue modern-day forms of de jure racial balkanization—which, as these cases show, is exactly where our §2 vote-dilution jurisprudence has led.
Third, any action of the federal government that violates the US constitution (such as the court order being discussed) is void, of no effect, and the proper response of States is to nullify such acts. The Louisiana Legislature ringingly endorsed that view in SCR 21 last year. They should follow through and veto these unconstitutional federal orders to racially gerrymander, rather than sheepishly comply. If they don’t, they will reveal themselves to be hypocrites, saying one thing and then doing another.
Fourth, even the pro-centralizing Federalist Papers (the same documents that promised the federal courts would be the ‘weakest’ federal branch, having ‘judgment’ but not ‘force’ or ‘will’ – a promise we should insist be fulfilled), even they suggest that States ought not comply with unlawful federal measures, and then go on to recommend ways they can neutralize them. Via the Tenth Amendment Center:
. . .
The rest is at https://thehayride.com/2024/01/garlington-states-shouldnt-kowtow-to-racially-gerrymandering-courts/.
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Holy Ælfred the Great, King of England, South Patron, pray for us sinners at the Souð, unworthy though we are!
Anathema to the Union!
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