The Court Strikes Blows to Gamesmanship by Election Lawyers and State Bullying of Pro-Lifers

The Supreme Court handed down two important decisions Wednesday, and conservatives have good reason to be pleased. In Louisiana v. Callais, the Court reined in decades of Voting Rights Act overreach that had turned redistricting into a partisan lawsuit industry. And in First Choice Women’s Resource Centers v. Davenport, a unanimous Court slapped back New Jersey’s attempt to bully a pro-life pregnancy center by extracting its private donor lists. Both decisions reflect the Court doing what it should do: reading the law as written and protecting constitutional and statutory rights.

Louisiana v. Callais

In Callais, the Court brought the Voting Rights Act back to its statutory language and original intent—to outlaw actual racial discrimination by states. If a state is intentionally drawing lines to give minority races less opportunity because of their race, they will still be held liable. But the Court is shutting down the gamesmanship of simply “repackag[ing] a partisan-gerrymandering claim as a racial-gerrymandering claim.” No longer will states face the damned-if-you-do, damned-if-you-don’t quandary of how to draw districts based on race without discriminating on the basis of race.

Louisiana’s own predicament, which I previously explored, perfectly illustrated the trap. After the 2020 census, the state legislature drew a congressional map with one majority-black district. The Middle District of Louisiana promptly ruled that the map likely violated Section Two of the Voting Rights Act by failing to include a second majority-black district and ordered a new one. The legislature took advantage of time it was given by the Fifth Circuit to enact SB8, drawing a new map with that second district—a sprawling configuration connecting black populations in Baton Rouge, Lafayette, and Shreveport across 250 miles of the state. The map reflected typical political considerations, including protecting the districts of Speaker Mike Johnson and Majority Leader Steve Scalise. A different district court, the Western District of Louisiana, then struck that map down as an unconstitutional racial gerrymander under the Equal Protection Clause. The state was trapped: add a majority-minority district, violate the Constitution; don’t add one, violate the VRA.

Writing for a 6–3 majority, Justice Alito cut through the knot by returning to what Section Two actually says. The provision imposes liability when a districting scheme gives minority voters “less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.” That text needs to be construed according to the constraints of the Constitution. As a “general rule . . . the Constitution almost never permits the Federal Government or a State to discriminate on the basis of race. Such discrimination triggers strict scrutiny,” which is satisfied only by narrowly defined “compelling interests” such as “remediating specific, identified instances of past discrimination.” Section Two of the Fifteenth Amendment requires “appropriate legislation” to enforce the Fifteenth Amendment, which bars conduct “motivated by a discriminatory purpose” and does not authorize a prohibition of “mere disparate impact.” What follows is not that congressional legislation must require “a finding of intentional discrimination”—something the dissent misleadingly claimed was the majority’s standard—but that liability could arise “only when the circum­stances give rise to a strong inference that intentional dis­crimination occurred.”

That is the proper way to understand Section Two of the VRA, and it has the added virtue of declining to “intrude on States’ prerogative to draw districts based on nonracial factors.” Such factors include “the drawing of districts to achieve partisan advantage.” Since partisan gerrymandering is constitutionally permissible under Rucho v. Common Cause (2019), a plaintiff cannot satisfy Section Two simply by showing that race and party preference are correlated and that Republicans benefited. Race and politics must be genuinely disentangled. The Court also updated the framework of Thornburg v. Gingles (1986) that has governed Section Two cases for 40 years: Plaintiffs may demonstrate disentanglement with illustrative maps if those maps satisfy all of the state’s legitimate districting goals—“including traditional districting criteria and the State’s specified political goals”—and must not themselves “use race as a districting criterion.”

The legislature’s “enactment of SB8 triggered strict scrutiny because the State’s underlying goal was racial. The State never hid the ball,” Alito’s opinion noted. And it could not prove “that its use of race was narrowly tailored to further a compelling governmental interest.” So SB8 was struck down not because the state was hostile to black voters, but because the court that originally ordered a second majority-minority district was itself applying an inflated reading of Section Two—one that imposed liability without any genuine inference of intentional discrimination.

To read Justice Kagan’s dissent for the three liberals, you would think the Court is overturning the VRA, when in reality they are just limiting the law to what it actually says and in light of constitutional text. The reason she is so upset is that in the process, the Court is taking away a partisan tactic that has grown into a booming industry among Democrat lawyers. Marc Elias and his operation figured out how to reverse-engineer political gerrymandering claims into “racial gerrymandering” claims, and the Court has now shut that down. Sorry, Marc.

First Choice Women’s Resource Centers v. Davenport

The second decision Wednesday was briefer but also significant. The Court unanimously struck down the New Jersey attorney general’s attempt by subpoena to force a pregnancy care center to hand over its private donor information. This is a straightforward application of the First Amendment’s protection of anonymous speech and freedom of association, in this case against government bullying of pro-lifers.

The state attorney general argued that the plaintiff pro-life organization, which sued in federal court to protect its associational rights, failed to suffer a sufficient injury to have standing since there was no state court order compelling production—an argument that, lame as it was, won in district court and (over Judge Stephanos Bibas’ dissent) the Third Circuit. Demanding donor lists is a classic lawfare tactic—one that can financially cripple an organization by incurring a chilling effect on donors, who fear public exposure and retaliation.

Justice Gorsuch, writing for the Court, asserted that against the backdrop of the decision in Americans for Prosperity Foundation v. Bonta (2021) affirming the First Amendment right to anonymous speech and association, “the question before us all but answers itself.” He also helpfully clarified the standing doctrine: “An injury in fact does not arise only when a defendant causes a tangible harm to a plaintiff, like a physical injury or monetary loss. It can also arise when a defendant burdens a plaintiff’s constitutional rights.” That is good news for a lot of litigants with religious liberty claims.

The Court also identified a “more general principle” gleaned from prior cases: “Across contexts, . . . courts may make ‘commonsense inferences’ when assessing Article III standing, including inferences about ‘third party behavior.’” That is a useful tool for plaintiffs whose injuries occur through indirect channels.

The fact that not a single justice dissented speaks volumes about the state’s indefensible conduct. First Choice is a big win pushing back on lawfare and attempts to leverage state power to intimidate groups it disapproves of.