Two things were obvious at Wednesday morning’s Supreme Court argument in Louisiana v. Callais, a case asking the Court to abolish longstanding safeguards against racially gerrymandered legislative maps.
The first thing is that the Court will split along party lines, with all six Republicans voting to destroy the federal Voting Rights Act’s (VRA) restrictions on racial gerrymandering, and all three Democrats in dissent. The other thing is that there is no consensus among the Republicans about how they should write an opinion gutting these protections.
While all six Republican justices almost certainly walked into Wednesday’s argument with a particular result in mind, they had wildly divergent theories of how to get there.
Justice Samuel Alito seemed to argue that maps that exclude Black voters are acceptable so long as they were enacted for the purpose of benefiting the Republican Party, rather than for explicitly white supremacist reasons.
Justice Brett Kavanaugh argued that the Voting Rights Act must sunset after an undetermined amount of time.
Justice Amy Coney Barrett proposed imposing a limit on Congress’s power to remedy discrimination — one that the Court has applied in nonvoting cases — on election-related laws like the VRA.
But even if the Court’s Republican majority cannot agree on a reason why they want to kill decades-old protections against racial gerrymanders, it’s been obvious for a long time that they are eager to kill them. As a young lawyer, Chief Justice John Roberts was a central figure in a failed effort to convince President Ronald Reagan to veto an amendment to the Voting Rights Act that strengthened its protections and spawned its modern rules against gerrymandering.
Although Roberts shocked many Court-watchers when, in a 2023 case that is virtually identical to Callais, he wrote an opinion leaving the VRA’s anti-gerrymandering provisions in place. Roberts claimed on Wednesday that the 2023 case “took the existing precedent as a given.” In Callais, by contrast, the Court specifically asked the parties to brief whether requiring states to draw maps that give more representation to racial minorities, as the VRA sometimes requires, violates the Constitution.
The Court, in other words, essentially asked the lawyers challenging Louisiana’s current maps to directly challenge the precedents which, Roberts now claims, he previously “took as a given.”
The Republican justices, moreover, began the process of dismantling the Voting Rights Act a dozen years ago, in Shelby County v. Holder (2013), and they’ve handed down at least two other decisions since then that attacked this landmark civil rights law. So, in the almost certain event that Callais takes another bite out of the VRA, it will be a continuation of an ongoing Republican project.
Wednesday’s argument was largely political theater. The outcome of this case was almost certainly determined long before the argument began.
How we got here
The Voting Rights Act, as amended by the law Reagan signed in 1982, prohibits any state election law that “results in a denial or abridgement of the right of any US citizen to vote on account of race or color.” In Thornburg v. Gingles (1986), the Court held that this language requires states to redraw their legislative maps in a limited set of circumstances.
While the Gingles framework is complex, it primarily turns on two factors: whether a state is residentially segregated by race, and whether the state’s voters are racially polarized — meaning that voters of one race tend to vote for one party and voters of another race tend to vote for another party.
When these two factors exist, they will produce two separate political communities within a state. And whichever racial group is in the majority can use its dominance of the state legislature to draw electoral district maps that cut the other racial group out of representation. Gingles held that courts sometimes must step in when this happens and require new maps that give additional representation to the minority groups.
In Callais, for example, Louisiana’s Republican legislature initially drew maps that included only one (out of six) Black-majority congressional districts, despite the fact that Black people make up about 30 percent of the state’s population. A lower court, applying Gingles, struck down this map, and the state responded by drawing new maps with a second Black district.
During Wednesday’s arguments, the Court’s Republicans made a hodgepodge of attacks on this Gingles framework. Alito, for example, appeared at odds with Gingles’s holding that racially polarized voting is a problem. Louisiana, he argued, enacted its maps to protect Republicans, not to cut Black people out of representation. And partisan gerrymandering, as Alito has said in the past, is permissible.
Justice Neil Gorsuch, meanwhile, seemed to want to impose a catch-22 on racial gerrymandering plaintiffs that the Court recently rejected in the 2023 case.
The Gingles framework requires these plaintiffs to produce a sample map showing that it is possible to draw additional districts where a racial minority group is in the majority, because if it is not possible to draw such a map, then there is no point in litigating the question of whether the state must draw one. But Gorsuch seemed to argue that it is unconstitutional for courts to consider these sample maps, because the only way to draw one is to draw lines based on race.
Kavanaugh, meanwhile, proposed expanding a rule that the Court announced in Shelby County. In that case, the Court held that a central provision of the Voting Rights Act — requiring states with a history of racist election laws to “preclear” new election laws with the federal government — could not remain in effect any longer because the United States was less racist in 2013 than it was when the VRA was initially enacted in 1965.
Many of Kavanaugh’s questions suggested that a similar rule must apply to the VRA’s racial gerrymandering safeguards, and that those safeguards also must sunset after some time.
Finally, Barrett suggested that the Voting Rights Act may violate a standard, known as “congruence and proportionality,” that the Court first announced in City of Boerne v. Flores (1997). City of Boerne concerned the scope of Congress’s power to enforce civil rights protections enshrined in the 14th Amendment. But the Voting Rights Act was enacted under Congress’s power to enforce the 15th Amendment, which prohibits states from denying the right to vote “on account of race, color, or previous condition of servitude.”
The Supreme Court has never applied City of Boerne to a 15th Amendment case. And, in any event, it is unclear how Congress, which amended the VRA in 1982, could have complied with a test that the Court first announced in 1997.
Whichever argument the Court’s Republican supermajority chooses to accept, there were no surprises in Wednesday’s argument. The Court’s Republicans proposed multiple, wildly divergent explanations for why they want to strike down the VRA’s racial gerrymandering safeguards, but they were all rowing in the same direction. It’s hard to imagine Callais ending well for voting rights plaintiffs.
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