The Supreme Court will hear arguments tomorrow in an election case from Louisiana that could decide how far the federal courts can go in requiring state legislatures to consider race in drawing congressional district lines. At issue in the case (Louisiana v. Callais) is Section 2 of the Voting Rights Act of 1965, which prohibits voting practices that discriminate on the basis of race or membership in a minority-language group. The federal courts have cited the VRA as a basis for intervening in districting disputes to protect the interests of minority voters, though the Act was originally passed to protect only access to the ballot box.
The facts are not in dispute. Louisiana was apportioned six congressional seats following the 2020 Census, the same number as the state received after the 2010 Census. The legislature approved a post-Census map with five white-majority districts and one black-majority district, similar to the map used during the previous decade and pre-cleared by the Justice Department after the 2010 Census. The legislature did not expect a challenge to its revised map.
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Nevertheless, minority plaintiffs challenged the map in federal court, claiming that enough black voters reside in the state to justify a map with two black-majority districts—and, further, that such a map is required under Section 2 of the VRA. Blacks, they point out, make up 30 percent of the state’s population, and so are entitled to two, rather than one, of the six congressional seats. They submitted a map that subtracted some of the excess black voters from their “safe” district and reallocated them to a new district with a majority of black voters. In their view, the state’s map diluted black votes by packing too many of them into one safe district. They pointed to an Alabama case (Allen v. Milligan), decided two years ago, in which the Supreme Court accepted a similar argument.
The district court, after hearing preliminary arguments, ruled that the plaintiffs were likely to prevail at trial, citing the Supreme Court’s decision in the Alabama case. The state of Louisiana, after failed appeals, conceded the point, and proceeded to draw a new map with two black-majority districts. Legislators understood, as many said at the time, that the court required them to consider race as the major factor in drawing the new maps. They also understood that if they did not draw the map, the judge would do it for them.
But rather than accepting the map suggested by the plaintiffs, the legislature drew its own map with the goal of protecting influential Republican representatives, notably Speaker of the House Mike Johnson and Senate Majority Leader Steve Scalise. This is why legislators did not want either the judge or the minority plaintiffs to draw the new map, as they feared those maps would cut these incumbents out of their districts.
These calculations produced a second black-majority district, the 6th Congressional District, in an elongated shape that ran from Baton Rouge in the southeastern part of the state to Shreveport in the northwest, a distance of 250 miles. The map looks a good deal like those that the Court has thrown out in the past as unlawful gerrymanders.
When the legislature approved this map, another set of voters, describing themselves as “non-African-American,” filed suit in a different federal court, claiming that the map violates the Constitution because it was drawn with a racial result in view—a practice the Supreme Court has frowned on in the past. After hearing arguments, a three-judge panel in the western district of the state struck down Louisiana’s revised map as an unconstitutional racial gerrymander. The court barred the state from using the maps in future elections, but the Supreme Court stayed that order pending a full hearing on the case. This decision is now under appeal at the Supreme Court.
The stay from the high court made the state subject to two competing federal court orders—one requiring the new maps under the Voting Rights Act, the other prohibiting them under the Fourteenth Amendment. Several states submitted amicus briefs asking the Court to provide some clarity so they can proceed to draw legislative and congressional maps without concerns about protracted lawsuits. Unfortunately, in view of existing precedents, the justices may be hard pressed to satisfy them.
Congress passed the Voting Rights Act to protect minority voters by banning literacy tests, overly cumbersome registration requirements, and the like. The legislation worked: by 1980, black voter participation across the South matched white participation. That remains the case today.
But the Supreme Court soon expanded its reach to cover election rules and the drawing of districts. As Chief Justice Earl Warren wrote in a 1969 ruling, “the right to vote can be affected by a dilution of voting power, as well as by an absolute prohibition on casting a ballot.” This decision marked a shift in jurisprudence under the VRA from protection of voting rights to a guarantee of electoral outcomes—or, as some have called it, affirmative action applied to elections. Subsequent court decisions, interpretations by the Justice Department, and congressional amendments have solidified the view that the VRA bans district maps that deny minority voters an equal opportunity to elect candidates of their choice.
As a result, the Supreme Court has wrestled for decades with redistricting issues. In Thornburg v. Gingles (1986), the court advanced a vague multistep test to demonstrate dilution of minority votes: a minority group must show that it is sufficiently large and compact to form a majority in a single-member district, and it must show that blacks and whites vote cohesively in opposite directions. These claims, if met, would entitle the group to one or more minority-majority districts. An unfortunate side-effect of Gingles was to encourage bloc voting by minority voters, since this was now a condition for claiming additional “minority-majority” districts.
The court refined the tests in later cases, holding that states can’t use race as a predominant factor in drawing district lines and shouldn’t allocate districts to minority groups according to their proportions in the population. The court has also struck down extreme racial gerrymanders.
Liberals were encouraged by the decision two years ago in Allen v. Milligan, in which the Court in a 5-to-4 decision ruled in favor of minority plaintiffs and upheld the Gingles standards in VRA cases. They insist that the Alabama ruling provides a roadmap for the Court to follow in the Louisiana case.
But the two cases differ significantly. The defendants in Callais make an equal-protection argument under the Constitution, while in Allen the State of Alabama challenged the Gingles standards. Louisiana legislators openly admitted that they drew the revised district maps by using race as a major factor, which Alabama denied doing in Allen. The Louisiana legislators proceeded to create a bizarrely shaped district to comply with the VRA, making themselves vulnerable to charges of racial gerrymandering. The disparate facts in Callais give the Court other possible paths to follow.
Despite the decision in the Alabama case, the Court failed to clarify the Gingles standards. Legislators may consider race to satisfy the VRA, but not too much, lest they violate the Constitution; they may draw bizarrely shaped districts, but not excessively so, lest they create racial gerrymanders. It’s little wonder that legislatures are confused over what they are required to do under the VRA.
Chief Justice John Roberts, in commentary on the Alabama case, acknowledged that “Gingles and its progeny have engendered considerable disagreement and uncertainty regarding the nature and contours of a vote dilution claim” under the VRA. Justice Brett Kavanaugh, in a concurrence to the Alabama decision, wrote that “the authority to conduct race-based redistricting cannot extend indefinitely into the future.” Other justices have expressed similar reservations about the use of overt racial standards in districting disputes and seem ready to revisit the Gingles standards.
Justice Clarence Thomas, joined by Justices Amy Coney Barrett, Neil Gorsuch, and Samuel Alito, argued in a recent dissent that Section 2 of the VRA refers only to barriers to voting and doesn’t extend to redistricting or claims of vote dilution. As he wrote, the words in the VRA reach only “enactments that regulate citizens’ access to the ballot or the processes for counting ballots”; and do not include a State’s . . . choice of one districting scheme over another.” That approach, if accepted by a majority, would foreclose most such litigation. It would also be consistent with the language of Section 2, which bans state-enforced barriers to voting on account of race, and in keeping with recent decisions that banned the use of racial preferences in college admissions.
The Court has also recognized the difficulty of separating racial and partisan gerrymandering when blacks vote overwhelmingly for Democrats and whites heavily for Republicans. Justice Alito made this point in a dissent in a 2017 voting rights case from North Carolina: “If 90 percent of African-American voters cast their ballots for the Democratic candidate, as they have in recent elections, a plan that packs Democratic voters will look very much like a plan that packs African-American voters.” In that circumstance, he asked, how is it possible to distinguish between a case of racial districting and one of partisan districting? The results in both will look the same. The Louisiana legislature, in drawing the initial map that the federal court tossed, may have considered party much more than race, since partisanship operates as a proxy for race.
Viewed this way, the controversy looks less like a battle over minority voting rights and more like a typical partisan dustup over district lines. The VRA was intended as a shield to protect minority voting rights, but it has evolved into a sword to advance the interests of the established political parties.
Louisiana v. Callais gives the Court an opportunity to revisit precedents that have provoked litigation over districting, inflamed racial conflict, and encouraged bloc voting under the VRA—and a chance to restore the Act to its original purpose of protecting minority voting rights. In the process, the Court could play a part in redirecting the country onto a path where the colorblind ideals of the civil rights revolution are honored not only in partisan rhetoric, but in practice.
Photo by BONNIE CASH/AFP via Getty Images
