There are multiple ways in which the Supreme Court could go even bigger against court-ordered racial gerrymanders by delaying the Louisiana case until the fall.
There are multiple ways in which the Supreme Court could go even bigger against court-ordered racial gerrymanders by delaying the Louisiana case until the fall.
T he end of June was anticlimactic for House redistricting lawsuits. The Supreme Court, after leaving Louisiana v. Callais on the short list of cases to decide on the final day of its term, instead announced (over a dissent by Justice Clarence Thomas) that Callais and a companion case also involving Louisiana’s congressional map were “restored to the calendar for reargument,” presumably in the fall. Meanwhile, in another unexpected move, the Wisconsin Supreme Court declined to reopen Wisconsin’s congressional map. The current map was drawn by Democratic Governor Tony Evers to make it through the Republican legislature, but Democrats had hoped that liberal control of the state supreme court — solidified by an April 1 election — would result in a judicial push to redraw the maps more in Democrats’ favor. Indeed, that assumption was widely shared by partisans on both sides of the state supreme court election.
Stalemate
In the short run, this is all a wash. Wisconsin currently has six Republican and two Democratic House members, and the likeliest outcome from a court drawing a more favorable map — unless it was a really egregious partisan gerrymander — would be a one-seat gain for Democrats. Louisiana currently has four Republican and two Democratic members — having previously been 5-to-1 Republican until the courts required the creation of a second majority-black district — and the likeliest outcome from a successful challenge to the map at issue in Callais would be a one-seat gain for Republicans, restoring the prior status quo.
The end of the Wisconsin litigation almost certainly means that Republicans keep the same advantageous map for 2026, and maybe for the rest of the decade unless the courts step in again. That doesn’t mean a permanently locked-in map: Republicans Bryan Steil in the first district and Derrick Van Orden in the third each have Republican-leaning but competitive districts that can easily go Democratic in a good blue year. But in a state that is perennially 50/50, Republicans have a structural advantage from the state’s geography, because the Democratic votes are heavily concentrated in the blue cities of Madison and Milwaukee. Democrats can overcome this in the map-drawing process only by a very deliberate and creative gerrymander.
If Wisconsin is intractably divided by geography, Louisiana remains intractably divided by race, such that Democrats will win seats only where the maps are drawn to discriminate along racial lines. The newly created racially gerrymandered sixth district is not particularly competitive, and none of the state’s other districts are even close. The other majority-black Democratic district, the second, has been Republican-held for only one term since the 1890 midterm, that lone exception being Joseph Cao, elected in 2008 to replace scandal-plagued William “cash in his freezer” Jefferson in the post-Katrina hangover.
Callais took a winding path to the Court. The map drawn after the 2020 census contained only one black-majority district and was thrown out by the Fifth Circuit on the grounds that it did not sufficiently segregate black voters so as to give them more black-majority districts. So, the legislature created a new map with two such districts, which was challenged again and struck down for being a race-conscious gerrymander — after the courts had ordered the legislature to draw a race-conscious gerrymander. The Supreme Court, however, had stayed the second court order, so the race-conscious map was used in the 2024 elections and currently governs Louisiana’s House delegation. After the case was briefed at the Supreme Court, the Trump administration took over and withdrew the amicus brief for the United States.
Now, a showdown is set for the Court to decide during the 2025–26 term whether to use the same map in 2026. The justices have been told by Louisiana that under state law, candidates must start collecting signatures by September 16, with a December 17 deadline, to be on the 2026 ballot. Thus, a decision changing the map later than November would make the election unworkable.
Off Wisconsin
The two non-decisions spring from different roots. The liberal Wisconsin majority was feeling its oats when it redrew the state’s legislative maps in the state House and Senate. But there were more seats at issue then, and fewer potential federal-law bases to appeal its decisions to the Supreme Court. The arguments presented to the Wisconsin court for a mid-decade overturning of Evers’s map were weak ones, placing major emphasis on minor deviations from the “one person one vote” principle of equal-sized districts, and facing potential defenses that the challengers had waited too long to raise these particular types of arguments. The liberals haven’t given up; they’ve since filed yet another challenge in Dane County last week, arguing that the current map is insufficiently competitive. Timing-wise, that may be a tall order to get done ahead of the 2026 midterm.
Who Sues?
While the Wisconsin court pumping the brakes is a reprieve for Republicans, the delay in Callais may be bigger news. The Supreme Court has sent decidedly mixed signals on how extensively it wants to rethink its Voting Rights Act jurisprudence. The confusion goes back to the Court’s 1986 decision in Thornburg v. Gingles, a case under Section 2 of the VRA with an opinion written by Justice William Brennan, an expert in unmooring law from its text. Section 2, as amended in 1982 to overrule a previous decision of the Court, provides:
(a) No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State . . . in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color. . . .
(b)A violation of subsection (a) is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens [of one race or color] in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. . . . Nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population. [Emphasis added.]
Gingles dealt with an electoral system: North Carolina’s state legislature was apportioned into multi-member state legislative districts in which the majority chooses all of the district’s representatives. The Court at the time found, unsurprisingly, that this system was blatantly unfair to minority-group (i.e., black) voters. Brennan, always seeing an opportunity to steal a base, wrote the opinion crafting a standard mainly from a committee report in the legislative history, rather than by looking at the statutory language.
In Brnovich v. Democratic National Committee (2021), the Court zigged. In a 6–3 opinion written by Justice Samuel Alito, the Court went back to the basics of the statutory language, concluding in the context of voting rules and qualifications that “the core of §2(b) is the requirement that voting be ‘equally open,’” an inquiry that looks at “a State’s entire system of voting” rather than the marginal impact of each discrete change to a state’s rules. This significantly pared back the routine use of Section 2 lawsuits to tie state legislatures in a straitjacket that limited their freedom to amend their own laws — unless those laws favored Democrats, in which case they could be revised but never repealed.
Brnovich did not address how its new formulation would apply in redistricting cases. One additional major question the Court left open was whether Section 2 is enforceable by private lawsuits at all, or whether only the Justice Department can sue to enforce it. Alito had bitten off plenty in writing Brnovich as is. But the issue of a private right of action is one of several big questions that could yet be decided in Callais. It wasn’t briefed by the parties, but Callais is a private Section 2 case.
How Long?
In Allen v. Milligan (2023), the Court zagged. In a 5–4 opinion written by Chief Justice John Roberts, with Brett Kavanaugh concurring, the Court kept aspects of the Gingles test alive in redistricting cases, and compelled Alabama under VRA Section 2 to add another majority-black district for explicitly racial reasons. In Alexander v. South Carolina State Conference of the NAACP (2024), the Court zigged back again, ruling in a non-Section 2 case that the Constitution didn’t prohibit a politically gerrymandered map that didn’t take race into account. As in Brnovich, Alexander was a 6–3 opinion by Alito.
Thomas dissented in Allen and wrote a concurrence in Alexander. He continues to argue that equal protection prohibits racially segregating voters, and that this overrides the VRA. He would very much like those questions to be resolved. In his dissent from delaying the decision in Callais, he not only emphasized that the Court has a duty to decide redistricting cases swiftly because Congress mandates that the Court hear all such cases (one of the last remaining exceptions to the Court’s control over its own docket), but also reiterated his longstanding view that the entire project of requiring racial gerrymanders under the VRA is unconstitutional race discrimination: The “disastrous misadventure” of “our Janus-like election-law jurisprudence” creates an “intractable conflict” between complying with the VRA and complying with the equal protection clause. “For over three decades, I have called for a systematic reassessment of our interpretation of §2.” (Quotation omitted.)
Thomas, however, isn’t the decisive vote: Kavanaugh is. In Allen, Kavanaugh’s main argument for following Gingles was that the bar is higher for statutory stare decisis — in other words, that the Court shouldn’t overturn precedents in reading federal statutes when Congress itself could fix them. But that reasoning doesn’t apply to the question of whether Congress itself violated the Constitution. And Kavanaugh explicitly left open a specific point that echoes the Court’s refusal to apply permanent race-based remedies in Shelby County v. Holder and Students for Fair Admissions v. Harvard:
Alabama asserts that §2, as construed by Gingles to require race-based redistricting in certain circumstances, exceeds Congress’s remedial or preventive authority under the Fourteenth and Fifteenth Amendments. As the Court explains, the constitutional argument presented by Alabama is not persuasive in light of the Court’s precedents. . . . Justice Thomas notes, however, that even if Congress in 1982 could constitutionally authorize race-based redistricting under §2 for some period of time, the authority to conduct race-based redistricting cannot extend indefinitely into the future. . . . But Alabama did not raise that temporal argument in this Court, and I therefore would not consider it at this time. [Emphasis added; quotations and citations omitted.]
The potential that Kavanaugh might yet join a majority willing to say that racially segregated House districts are no longer constitutionally authorized would be a huge deal.
How Far?
Kavanaugh in Allen also suggested a more modest caution that could unravel the map in Callais: He reads Gingles to be consistent with the statutory restriction on mandating racial proportionality only when the resulting racial gerrymanders bear some relationship to geographically compact districts that respect existing county lines, city limits, and other preexisting communities. That’s bad news for the Louisiana map, albeit less bad for Democratic lawyers than a bigger-ticket decision on private Section 2 lawsuits or the continuing constitutionality of Section 2 remedies.
In short, the Court in Callais has quite a few paths open to it, some of them more consequential than others. Its time to decide will run short before the year is out. Any one of those paths could prove good news in the long run, both for conservative jurisprudence and for House Republicans.