This morning in Louisiana v. Callais, the U.S. Supreme Court gutted the Voting Rights Act, holding that states are free to draw congressional maps that seek political gain for the party in power, even if doing so comes at the expense of Black, Hispanic, or other minority voters.
Section 2 of the Voting Rights Act prohibits election procedures—including districting maps—that have the effect of discriminating on the basis of race. For the past 40 years, courts have applied the test developed by the Supreme Court in Thornburg v. Gingles to identify violations of this provision. And for the past 40 years, that test recognized that where a racial minority group is sufficiently large and compact to constitute a majority in an additional reasonably configured district, voting is racially polarized, and the totality of circumstances supports a finding of discrimination, then a state’s failure to draw an additional district where that minority can elect a candidate of choice violates Section 2. Today’s decision effectively eviscerates this test under the guise of “updating” it for a world where (the Court said) racial discrimination is largely a historical artifact.
To succeed on a Section 2 claim under the Court’s new test, plaintiffs still must present illustrative maps showing that the state could have drawn an additional district where racial minorities could elect their candidate of choice. But now, those maps must be drawn without any consideration of race, and they must meet all of the state’s specified political goals (including where the goal is to maximize seats that can be won by the party favored by white voters and minimize seats that can be won by the party favored by minority voters).
Plaintiffs also must provide an analysis of racial voting patterns that “controls for” party affiliation, showing that voters engage in racial-bloc voting that cannot be explained by partisan affiliation. This requirement is as circular and incoherent as it sounds: if a Black voter in Baton Rouge supports Democratic candidates because Democratic candidates support more funding for the public schools that teach Black children, for example, what does it mean to differentiate between whether that support is on the basis of race or the basis of party? The Court’s decision makes no effort to grapple with these perplexities.
Under the Court’s opinion, the fact that minorities overwhelmingly join the same political party to advocate for priorities that are consistently rejected by white voters is no longer, on its own, strong evidence that a system is infected with racial discrimination. Instead, this racial polarization may serve to exonerate the governing party from claims of racial discrimination by reframing racial antagonism as ordinary political conflict.
The majority opinion was authored by Justice Alito, and joined by Chief Justice Roberts and Justices Thomas, Gorsuch, Kavanaugh, and Barrett. Justice Thomas filed a concurring opinion, joined by Justice Gorsuch, which made no mention of the fact that just two years ago Justice Thomas opined that courts should categorically refuse to hear racial gerrymandering claims like the one he endorsed here. Justice Kagan, joined by Justices Sotomayor and Jackson, dissented. She explained that the Court overrides established doctrine in a manner that is regrettably consistent with the Court’s recent efforts to undermine voting rights for racial minorities.
Elias Law Group lawyers are available to advise further on the broad-reaching implications of this decision, which is sure to result in further mid-decade redistricting and strategic litigation.