When the Supreme Court hears oral argument tomorrow in Louisiana v. Callais, it will confront two strains of precedent that contradict each other. On the one hand, a string of voting rights decisions starting with Thornburg v. Gingles (1986) interpreted Section Two of the Voting Rights Act (VRA) in a way that compelled states to consider race in the drawing of legislative districts, on the theory that that would ensure the opportunity for minority voters to elect their preferred candidates. But of course, the overarching rule that has emerged in the Court’s constitutional jurisprudence is that drawing distinctions based on race is presumptively unconstitutional and subject to strict scrutiny.
The competing lines of precedent were visible in two decisions of the Court from two years ago, in June 2023. Allen v. Milligan invalidated an Alabama congressional map that had one rather than two majority-black congressional districts. Three weeks later, Students for Fair Admissions v. President and Fellows of Harvard College invalidated the practice of discriminating based on race in college admissions.
As I noted at the time, the 5–4 Milligan decision applying Gingles, written by Chief Justice Roberts, was based on a fact-specific “totality of circumstances” test fraught with ambiguity. Justice Thomas’ dissent, joined in relevant part by three justices, asserted that to the extent Section Two applies to districting, it must work from a race-neutral benchmark—something the majority had not done even if they were cagey about it. In Students for Fair Admissions, a 6–3 majority was clear about the Fourteenth Amendment’s objective, dating back to its framing, to eliminate racial distinctions from the law. The principal dissent in that case by Justice Sotomayor noted in footnote 34 that “drawing district lines that comply with the Voting Rights Act may require consideration of race” as it made a losing argument in the education context.
Louisiana now finds itself ensnared in this legal morass, and the stakes are high for the future of race-neutral governance. The case traces its origins to Louisiana’s 2022 congressional map, which contained a single majority-black district out of six in a state where African Americans constitute roughly one-third of the population. The Middle District of Louisiana heard a challenge to the redistricting, enjoined the map as likely violating Section Two of the VRA, and ordered the legislature to enact “a remedial congressional redistricting plan that includes an additional majority-Black congressional district” by a June 2022 deadline; otherwise, the court would order further remedies to reach that result.
Appeals from that order had the effect of holding the case in abeyance pending the Court’s decision in Milligan and changing the timeline so that the redrawn maps would be for the 2024 election rather than the 2022 election. The legislature wished to redraw the map to create a majority-minority district itself instead of having a court do so. It applied typical political considerations, such as protecting high-profile incumbents including Speaker Mike Johnson and Majority Leader Steve Scalise, to the process. But the redrawn map’s second majority-minority district was struck down, this time in another challenge in the Western District of Louisiana, as a racial gerrymander that violates the Equal Protection Clause. A 2–1 majority of the three-judge panel criticized what it called the “‘bizarre’ 250-mile-long slash-shaped district that functions as a majority-minority district only because it severs and absorbs majority-minority neighborhoods from cities and parishes all the way from Baton Rouge to Shreveport.” That “fails to comport with traditional districting principles,” the court concluded as it applied the Gingles factors.
The appeal to the Supreme Court presented several questions challenging the Western District’s decision: Was the majority wrong to find that race predominated in the enactment of the district map? Or in finding that the map failed strict scrutiny? Or that the map was subject to the Gingles preconditions? And was the action non-justiciable? The case was argued in March but held over to this term for reargument—over the dissent of Justice Thomas, who noted the “intractable conflict between this Court’s interpretation of §2 of the Voting Rights Act of 1965 (VRA), . . . and the Equal Protection Clause” involved and the need for prompt resolution. In August, the Court asked the parties for supplemental briefing on the constitutional question: “Whether the State’s intentional creation of a second majority-minority congressional district violates the Fourteenth or Fifteenth Amendments.”
The inclusion of the constitutional question is a sign that a critical mass of justices is ready to grapple with the conflict in its case law. Will a majority finally fix the problem the Court left lingering in Milligan? On the one hand, the Court’s composition has not changed since that case was decided. At the same time, Justice Kavanaugh, part of the five-justice majority in Milligan, did not join Chief Justice Roberts’ opinion in its entirety. He issued a separate opinion concurring in part that indicated he was avoiding a point Justice Thomas raised in dissent—that “the authority to conduct race-based redistricting cannot extend indefinitely into the future” even assuming that Section Two authorized race-based redistricting. Since Alabama “did not raise that temporal argument in this Court,” Kavanaugh declined to consider it.
Hopefully Kavanaugh will now consider the constitutional question to have been presented directly enough to clear up the Court’s jurisprudence and affirm the Western District. After all, Louisiana didn’t create this predicament. The Court’s confused jurisprudence did. Now the Court has an opportunity to fix it. Let’s hope a majority of the justices seize it. When the Court issues its decision in Louisiana v. Callais, it should finally resolve this conflict in favor of the Constitution’s clear command of race neutrality. Equality before the law, regardless of race, is a principle that should guide redistricting no less than any other governmental function.