The Supreme Court Just Put the Voting Rights Act in Its Crosshairs Again

Yahoo

24-03-2025

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On Monday, the Supreme Court heard oral argument in Louisiana v. Callais, an important battle over Black voters' electoral power under Louisiana's congressional map. In the lower courts, seven judges from across the ideological spectrum concluded that Louisiana's map needed to include two majority-Black districts to remedy a prior violation of the Voting Rights Act. But during Monday's arguments, a number of conservative justices indicated that the inclusion of those two districts may now make the map unconstitutional. And, even more troublingly, the conservative supermajority's questions made clear that Louisiana's remedial map may not be the only thing in danger: The Voting Rights Act itself may also be on the line.
Although Black residents account for a third of Louisiana's population, the state had originally passed a congressional map in 2022 that had one majority-Black district out of six. Press Robinson and other Black voters sued, arguing that the map violated Section 2 of the Voting Rights Act, which prohibits states from diluting the voting strength of Black voters. In June 2022, a district judge held that the 2022 map likely violated Section 2.
The case then went through some complex procedural machinations, including a Supreme Court order that allowed the dilutive map to be used in the 2022 congressional elections. Eventually, the U.S. Court of Appeals for the 5th Circuit directed Louisiana to either pass a map that remedied the Section 2 violation or proceed to trial so that a lawful map could be put in place before the 2024 election. The Louisiana Legislature opted to enact its own map, known as S.B. 8. Importantly, while S.B. 8 includes two majority-Black districts as required by the VRA, it also accomplished the Legislature's political priorities: protecting the seats of certain incumbent U.S. representatives, including Speaker of the House Mike Johnson.
In 2024, however, a group of self-described 'non-African Americans' challenged S.B. 8, arguing that it was a racial gerrymander in violation of the Constitution. Under Supreme Court precedent, the 14th Amendment's equal protection clause prohibits race from being the 'predominant factor' in state legislatures' redistricting decisions. The challengers to S.B. 8 argued that by creating a second Black majority district to comply with the VRA, race prevailed over the Louisiana Legislature's decision to make that district. After a truncated trial, a divided three-judge district court struck down S.B. 8, essentially holding that because the Legislature was committed to remedying the Section 2 violation, race predominated. Louisiana and the Black voters from the original 2022 litigation appealed to the Supreme Court.
At its core, this case is about the discretion that states need to draw maps that comply with the Voting Rights Act and the Constitution and satisfy the state's other legitimate redistricting goals, including the state's political aims. As my colleagues and I discussed in a brief we filed in the case, the Supreme Court has held that states must have 'breathing room' when drawing these maps. So if a state has 'good reasons' to believe that it must draw majority-Black districts, federal courts must uphold those legislative judgments unless they conclude that the states considered race more than was necessary to remedy the VRA violation.
As Justice Elena Kagan explained at oral argument, a federal court order instructing Louisiana to draw a second majority-Black congressional district is surely a 'good reason' to do so. And here, that order was subsequently affirmed by six different judges on the notoriously conservative 5th Circuit. After appealing the district court decision and losing (twice), the state opted to pass its own remedial map rather than continue litigating a case in which it was doomed to fail and risk having a federal court-drawn map imposed on its citizens. Then, as Justice Ketanji Brown Jackson detailed, the Legislature's choice of S.B. 8 over other possible maps was based on 'strictly politics': to protect incumbents. That should be the end of this case. The high court has, after all, blessed overtly political considerations in redistricting.
Unsurprisingly, however, the court's conservative justices appeared skeptical that S.B. 8 was lawful and that a second majority-Black district was necessary in the first place. The Roberts court has long been hostile to voting rights, and this case appears to be no exception.
Throughout Monday's arguments, Chief Justice John Roberts found fault with Louisiana's second majority-Black district, calling it a 'snake,' as if its shape demonstrated its unconstitutionality. He pressed Stuart Naifeh—counsel from the NAACP Legal Defense and Educational Fund, which represented the Black voters—to explain why the district 'runs from one side of the state angling up to the other, picking up Black populations as it goes along.' As Naifeh explained, the Black communities encompassed by the district were not grouped at random but rather shared histories of discrimination and common interests; a mere glance at the map does not reveal the history behind the geographic location of these populations. Justice Neil Gorsuch, for his part, opined that under the 14th Amendment, 'race should play no role' in our laws, including in redistricting. But this view is not the law; it flies in the face of decades of Supreme Court cases, including Allen v. Milligan, which was decided less than two years ago. As Jackson rightfully pointed out, no Supreme Court precedent has ever held that states may not use race to comply with the VRA. To hold otherwise would cast serious constitutional doubt upon all maps enacted to comply with the act.
Other justices trained their focus on Section 2 itself. Troublingly, Justice Brett Kavanaugh reiterated his position from his Milligan concurrence that race-conscious remedies like the VRA 'cannot extend indefinitely into the future.' He noted that Louisiana is making this exact argument in separate litigation about the state's legislative redistricting maps that is currently pending in the 5th Circuit. (My colleagues and I also filed an amicus brief in that case refuting this claim.) While Kavanaugh recognized that the plaintiffs here may have forfeited that argument, his insistence on bringing up this point in a case when it's not even at issue is deeply concerning. And as Naifeh explained, this argument makes particularly little sense in the context of Section 2 litigation, given that the test for vote dilution expressly includes consideration of current circumstances.
Finally, and perhaps most concerningly, several justices questioned whether Louisiana should have complied with the 2022 district court order at all. Most prominently, Justice Samuel Alito stated that the district court case was wrongly decided, and he suggested that the state did not have good reason to consent to an order that, in his view, was wrong. These justices' willingness to dismiss a state's compliance with a federal court order so long as the state thinks it's incorrect is alarming. Indeed, as the chief justice said just last week, if a party disagrees with a court decision, they should appeal it. Louisiana already did that and lost. As Jackson put it, it doesn't matter whether the district court order was correct; all that matters is that it exists. There is no valid reason for a state to disobey a court order.
All in all, at Monday's oral argument, the court's conservative majority displayed its disdain for the VRA and highlighted several ways in which it could make litigating Section 2 cases more difficult for voters of color. Roberts and Kavanaugh rejected an attack on the VRA two years ago in Milligan, but it appears they may now be looking for another way to hobble its power. Black Louisianians have been fighting for three years for a fair map under which they can elect the candidates of their choice. If the Supreme Court rules against them, it could upend decades of precedent, making it infinitely harder for states to comply with the VRA and radically undermining the act's ability to protect our multiracial democracy.