The U.S. Supreme Court released its 6-3 Louisiana v. Callais opinion, holding that race-based gerrymandering of congressional districts to purportedly comply with § 2 of the Voting Rights Act (“VRA,” 52 U.S.C. § 10301) is not a narrowly tailored compelling governmental interest and therefore unconstitutional. Justice Samuel Alito wrote the opinion, which straightforwardly applied existing statutes and case law. It did not overturn any prior cases. Justice Elena Kagan dissented.
§ 2 prohibits states from denying or abridging “the right of any citizen of the United States to vote on account of race or color,” and that violations are shown if, “based on the totality of the circumstances,” the “political processes” are not “equally open to participation.” § 2 also provides “no right to have members of a protected class elected in numbers equal to their proportion in the population.” Accordingly, the VRA guarantees all voters equal opportunity to vote and simultaneously allows states to draw their electoral districts based on compactness, contiguousness, geographical boundaries, political subdivisions, protecting incumbents, etc. — but not race.
The Callais respondents argued that complying with § 2 required Louisiana to create an additional race-based, predominantly Black congressional district. The question before the court was whether complying with § 2 is a narrowly tailored compelling governmental interest which satisfies the highest level of constitutional analysis, known as “strict scrutiny.” The court said no, and stated that “allowing race to play any part in government decision-making represents a departure from the constitutional rule that applies in almost every other context” and that “the Constitution almost never permits the Federal Government or a State to discriminate on the basis of race,” such as where it is improperly used to draw maps that intentionally dilute or otherwise harm minority voters.
Unfortunately, the immediate, knee-jerk reaction from the legacy media and many partisan commentators has been to wrongly claim that the court is “racist” or that it “weakened,” “gutted” or “obliterated” the VRA. An objective analysis of Callais, its underlying facts and its progenitor cases disproves these inaccurate claims.
For example, Justice Kagan wrote the majority opinion in Cooper v. Harris (2017), which Justices Sonia Sotomayor, Ruth Bader Ginsburg, Stephen Breyer and Clarence Thomas joined, holding that North Carolina unconstitutionally used race as “the dominant factor” in creating majority Black districts. Justice Kagan also wrote that litigants must “disentangle race from politics and prove that the former drove a district’s lines.” Callais is a natural outgrowth from Cooper and does not contradict it.
In Allen v. Milligan (2023), Chief Justice John Roberts wrote the majority/plurality opinion which struck an Alabama redistricting map that diluted Black voters and thus violated § 2. The court wrote that “there is a difference ‘between being aware of racial considerations and being motivated by them’… the former is permissible; the latter is usually not.” The court, citing Cooper, also wrote that, when drawing district lines, it is improper for “race-neutral considerations” to come into play “only after the race-based decision [already] had been made.” Furthermore, the court stated that “forcing [racially] proportional representation is unlawful and inconsistent with the court’s approach to implementing § 2.”
As Justice Sandra Day O’Connor warned in her Shaw v. Reno (1993) majority opinion, “Racial gerrymandering, even for remedial purposes, may balkanize us into competing racial factions; it threatens to carry us further from the goal of a political system in which race no longer matters – a goal that the Fourteenth and Fifteenth Amendments embody, and to which the Nation continues to aspire.”
Much of the overly harsh response against Callais seems to assume that voters, especially minority voters, automatically vote for candidates of their own respective races, an assumption which in and of itself could be considered racist. In fact, it is incorrect that so-called “majority-minority” districts are absolutely necessary to have minority representatives. For example, according to the U.S. Solicitor General’s office, currently there are approximately 60 Black members of Congress, but only 15 majority-Black districts.
The unwarranted attacks on the court may be due to partisan concerns that certain states with Republican-controlled legislatures may now attempt to redraw their congressional districts, responding to Democratic-controlled California and Virginia creating their new lopsided Democratic districts that eliminated numerous Republican ones, which in turn was a response to Texas. This probably will not be a litigable issue; the court held in Rucho v. Common Cause (2019) that partisan gerrymandering claims are not justiciable because they present political questions beyond federal court jurisdiction. Additionally, time is awfully short for any state to now begin the process of redrawing its congressional districts before the 2026 midterms, especially for states that already started their primaries and/or have early voting.
In Callais, the Supreme Court followed the existing law and correctly ruled. The court’s opinion is well-reasoned and modest. The law still requires that citizens have equal opportunity to vote and still prohibits denying or abridging their right to vote based on race or color. This includes race-based vote dilution, literacy tests, poll taxes, etc. Callais affirmed the VRA’s plain text and original intent as well as the existing case law; race-based quotas and “proportional representation” are forbidden, as they are in the court’s university admissions jurisprudence. Furthermore, they do not require disparate impact analyses nor so-called majority-minority districts, and challengers to state redistricting plans may not hide nor shoehorn partisan-based complaints as race-based § 2 ones.
