The Supreme Court spent Wednesday morning trying to figure out a way to legalize racial gerrymandering. While the justices didn’t coalesce around a single approach, they generally appeared to agree that Section 2 of the Voting Rights Act must fall.
The high court’s conservative majority signaled during oral arguments in Louisiana v. Callais that it would likely strike down the VRA’s provisions that prohibit racial gerrymandering by state legislatures. In doing so, the justices appear ready to demolish what remains of one of the most important laws ever passed by Congress—and to upend the nation’s political landscape in the GOP’s favor.
If the Supreme Court sides with the anti-VRA forces, the impact will be monumental. A New York Times analysis found that if Republicans merely maximized their efforts to eliminate majority-minority districts in the South, they could flip about a dozen House seats to the safely Republican column in future elections. Some analyses by voting-rights groups are even more dire.
In a post-Section 2 world, that could require Democrats to win the national popular vote by 5 to 6 percentage points just to have a chance of flipping the chamber. But the true impact goes beyond election results. Gutting Section 2 would drastically reduce minority representation in Congress in general and largely wipe out Black congressional representation in the South at a scale unseen since the end of Reconstruction.
The case began with Louisiana’s response to the 2020 Census. The Constitution requires states to redraw their maps every ten years to account for population shifts and changes. Louisiana adopted a new, visibly gerrymandered map with five ultra-safe Republican seats and one ultra-safe Democratic seat. The Democratic seat, centered around New Orleans, incorporated most of the state’s Black communities and diluted their influence in other districts.
A group of Black voters and voting-rights groups filed a federal lawsuit to challenge that map, arguing that it effectively disenfranchised the state’s Black voters by denying them the opportunity to elect lawmakers of their choice. They invoked Section 2 of the Voting Rights Act’s ban on racial gerrymandering. A federal district court agreed and ordered Louisiana to draw new maps with a second majority-Black district, a decision that the conservative Fifth Circuit Court of Appeals upheld.
“Six appellate judges affirmed findings that Louisiana, in the face of extreme racially polarized voting, packed and cracked Black voters, and it rejected seven non-dilutive maps in favor of one that would give its 58 percent declining white electorate entrenched control over 83 percent of the congressional districts,” Janai Nelson, who argued on behalf of the voting-rights groups, told the justices.
Louisiana adopted the new map in 2023 to comply with the court’s ruling. After that map became law, a group of plaintiffs who described themselves as “non-African American voters” sued in a different federal district court to challenge the 2023 map. They argued that the state had violated the Fourteenth Amendment’s Equal Protection Clause by using race as a factor in legislative redistricting—even though it did so to comply with a federal court order that sought to remedy the state’s racial gerrymandering.
It is worth emphasizing this part again, because the Supreme Court has managed to all but obscure it: When it agreed to rehear the case at the end of its previous term—more on that part later—it reframed the question presented as follows: “Whether the state’s intentional creation of a second majority-minority congressional district violates the Fourteenth or Fifteenth Amendments to the U.S. Constitution.”
This framing makes it sound like the Louisiana state legislature woke up one morning and decided to add a second majority-Black district for fun. In reality, it was obeying a federal court order after the court concluded that it had engaged in unconstitutional racial gerrymandering. Equating these things to one another is like confusing rat poison with chemotherapy medication, or a switchblade with a surgeon’s scalpel.
Under the court’s precedents, the government can only consider race in laws and policies if it has a “compelling interest” to do so. This threshold, known as strict scrutiny, is the most exacting form of judicial review that courts can use. It is rarely overcome. The Supreme Court has long held, however, that enforcing compliance with the Voting Rights Act is a compelling interest on the government’s part, including when it fashioned remedies under Section 2.
The Supreme Court upheld a lower-court ruling in 2023 that required Alabama to create a second majority-Black district, ruling that it was the proper application of the court’s precedents. At the same time, Kavanaugh signaled in his concurring opinion that he would be willing to hear a case in the future on whether Section 2’s remedies were themselves unconstitutional. He suggested that “even if Congress in 1982 could constitutionally authorize race-based redistricting under Section 2 for some period of time, the authority to conduct race-based redistricting cannot extend indefinitely into the future.”
This “temporal argument” is a familiar one for the conservative justices, who have used it to roll back other portions of the Voting Rights Act and to abolish race-conscious admissions programs in higher education. As I noted in July, most of the justices appear reluctant to say outright that such measures would have been unconstitutional all along, perhaps because it could be taken as a vindication of Jim Crow. Instead they have argued that these laws and measures were always on a ticking clock, winding down to their inevitable obsolescence, and the timer is now beeping.
“This court’s cases, in a variety of contexts, have said that race-based remedies are permissible for a period of time—sometimes for a long period of time, decades, in some cases—but that they should not be indefinite and should have an end point,” Justice Brett Kavanaugh claimed at one point.
Maybe this argument works at the country-club set in the Maryland and Virginia suburbs, or gets approving nods from the well-fed conservative lawyers at Federalist Society galas. It does not hold up as well in less fluffy climates. Naturally, the Fourteenth and Fifteenth Amendments make no mention of a timer. Justice Sandra Day O’Connor remarked in a 2003 case on affirmative action in higher education that she hoped such measures would not be necessary twenty-five years later. In Students for Fair Admissions v. Harvard, the court transmuted that remark into a hard deadline and invoked it ahead of schedule. Now, in Callais, the justices are poised to use it to kneecap the Voting Rights Act.
“I’m asking what you think the time limit on that should be, or [whether] there really shouldn’t be a time limit,” Kavanaugh asked Nelson. “I think you might be saying there shouldn’t be a time limit unless Congress chooses one.” She agreed. “I am saying that,” Nelson replied. “I’m saying there should not be a time limit.”
Other conservative justices floated alternative ways to kill racial-gerrymandering remedies. Justice Samuel Alito opened the door to giving state lawmakers a pretextual justification for it, a tactic he has happily adopted in past cases to weaken the VRA. “if incumbent protection is a permissible districting criteria, then, under Rucho [v. Common Cause], isn’t seeking partisan advantage also an objective that a legislature may legitimately seek?” he asked Nelson, referring to the 2019 case where the conservative justices said federal courts couldn’t hear partisan-gerrymandering claims.
“Not if it comes at the cost of the equal protection principle and the Fifteenth Amendment’s prohibition on race discrimination in voting, it is not,” Nelson reminded him. “Well, if the objective is simply to maximize the number of representatives of a particular party, that’s seeking a partisan advantage, it is not seeking a racial advantage, isn’t that right?” Alito replied. “Well, if race is used as a means to seek the partisan advantage, then that is unconstitutional,” she explained.
This argument boils down to “actually, it’s not racial gerrymandering because we’re just discriminating against Democrats.” It does not make sense if you think about it for more than a minute or have a rudimentary knowledge of American political demography. While it is theoretically possible to carry out partisan gerrymandering without racial gerrymandering in some states, Louisiana and other places in the South are not among them.
Justice Neil Gorsuch appeared to favor a blunt and unsparing bright-line rule against any use of race whatsoever. “You know, sometimes federal district courts order maps,” he told Nelson. “And you’re saying sometimes acceptable for a federal district court to order a map that intentionally discriminates on the basis of race?”
Nelson countered that his premise was mistaken. “They don’t have breathing room to intentionally discriminate on the basis of race,” she argued, referring to state legislatures that add majority-minority districts after losing racial-gerrymandering cases. “They have breathing room to use race to remedy their own discrimination.”
Accepting the case’s premise also requires a certain amount of either malevolence or foolishness. Congress has the power to enforce voting rights from the Fourteenth and Fifteenth Amendments. Those amendments’ drafters intended for them to be robust tools to break racial apartheid in the post-Civil War South, and while they were not always used to their full potential, they have been a robust tool in favor of multiracial democracy since the 1960s.
That era is now drawing to an end in favor of one where young Republican staffers write Nazi jokes and swap racial slurs in private group chats, where the Trump administration considers reorienting the refugee-admissions program towards bringing in white nationalists from Europe, and where the Supreme Court spends a morning debating a question it went out of its way to ask: How do we make Congress even more white and more Republican?
The only small mercy is that the Supreme Court’s conservative majority felt constrained enough by its internal practices to not hand down this ruling last term. Instead, they punted the case to this term after massaging the question presented in more existential terms. Since ballot deadlines are rapidly approaching for the 2026 midterms, the court likely won’t hand down a ruling in time to affect next year’s elections. Enjoy them while you can.
The post The Supreme Court’s War on the Voting Rights Act Is Almost Over appeared first on New Republic.
