In a blockbuster ruling, the Supreme Court just struck down a Louisiana redistricting map because the state legislature, attempting to comply with the Voting Rights Act, had deliberately created a “majority-minority” district—a district where blacks were a majority. There are many majority-minority congressional districts in other states, similarly drawn to comply with the Voting Rights Act, all of which may now be unconstitutional under the Court’s decision in Louisiana v. Callais. Because those districts tend to elect Democrats, some have predicted that the outcome the Court just reached in Callais could upend the midterms, turning between 12 and 20 blue House seats red.
Such dramatic consequences are very unlikely, as I’ll explain in a moment. But first—what happened in Callais, and what did the Court hold?
The background of the case is tortuous. In 2022, Louisiana’s Republican-dominated legislature drew a redistricting map that created five safe Republican congressional seats and one safe Democratic seat. Black voters were the majority in the safe Democratic district.
That map was challenged in federal court. The plaintiffs argued that under the Voting Rights Act, the state should have a second majority-black district because blacks make up about 32 percent of Louisiana’s population, whereas one out of six districts amounts to only 16 percent.
The plaintiffs won, and the federal court ordered Louisiana to redraw its map to create a second majority-black district.
Louisiana complied, but then was sued again—in a different case, in a different federal court, this time by plaintiffs representing white and other non-black voters. These plaintiffs argued that deliberately creating a second black-majority district was an unconstitutional racial gerrymander under the Equal Protection Clause, violating the rights of non-black voters. And if the Voting Rights Act mandated that result, the plaintiffs argued, then the Voting Rights Act itself was unconstitutional.
The plaintiffs in this new case also won, which directly contradicted the outcome of the first case. In other words, in 2022 a federal court ordered Louisiana to create a new majority-black district on statutory grounds, but in 2024 a second federal court ordered the state to undo that district on constitutional grounds. That second holding went to the Supreme Court, and this week the Court, by a 6–3 vote, affirmed, concluding that purposefully creating a majority-black district was indeed unconstitutional.
More than that, the Court—in a lengthy opinion written by Justice Samuel Alito—strongly suggested that nearly all deliberately created majority-minority districts are likely unconstitutional. Dividing up citizens by race, said the Court, is “odious to a free people whose institutions are founded upon the doctrine of equality.” And “where the State assumes from a group of voters’ race that they ‘think alike, share the same political interests, and will prefer the same candidates at the polls,’ it engages in racial stereotyping at odds with equal protection mandates.”
The Supreme Court ruling in Callais leaves open a possible exception for cases where the evidence strongly suggests that a redistricting map deliberately discriminates against minority voters. What about the fact that black voters are 32 percent of Louisiana’s population but got only one of six districts in the state’s original map? Doesn’t that show purposeful discrimination?
No, according to the new ruling—not if it was simply the result of partisan redistricting. If the state’s Republican-dominated legislature was just trying to cram as many Democratic voters as they could into a single district—while spreading out the rest harmlessly in safe Republican districts—that’s a partisan gerrymander, not a racial gerrymander. And partisan gerrymanders, said the Court, are perfectly constitutional. As long as state legislators pursue purely partisan objectives or other constitutionally permissible goals, and do not prejudice minority voters on account of their race, their map will get the green light.
The Callais dissenters were harshly critical, accusing the majority of distorting the Constitution and gutting the Voting Rights Act. As she often does, Justice Elena Kagan—who wrote the dissent—came up with a powerful hypothetical. Imagine, she wrote, that due to a history of racial discrimination, almost all of a state’s blacks live in one city, while almost all of the state’s white voters live outside that city. Imagine further that most blacks vote Democrat, whereas most whites vote Republican. Under traditional districting schemes, that city would get to be its own district, and blacks would be able to elect a congressman of their choice.
Callais’ implications for the midterms will probably not be as dramatic as some have predicted.
But instead, a Republican-dominated legislature draws a map that breaks that city into six little pieces and assigns each of those pieces to one of six outlying districts, drawn in such a way as to create six safe Republican seats. The result is that blacks are not a majority in any district and can’t elect the candidate of their choice. In that scenario, Kagan argues, blacks’ votes are “wasted”; they “matter less” than white votes. Yet under the Court’s new Callais opinion, Kagan concludes, that would be a mere political gerrymander, violating neither the Voting Rights Act nor the Constitution.
I think Kagan is correct in this conclusion: The Callais majority’s decision would indeed allow a state legislature to break up a racial bloc of voters so long as the legislature did so for purely partisan reasons. To the conservative majority, that’s no more an act of racial discrimination than it would be for a college to use only SAT scores to admit applicants. If fewer applicants from certain minority groups happen to be admitted as a result, that’s disparate impact, not racial discrimination.
I predicted the outcome of Callais in these pages six months ago, precisely because of the Court’s 2023 decision prohibiting affirmative action in university admissions. To the conservative justices, using race to benefit black voters is essentially another form of affirmative action. For Justice Kagan, along with Justices Sonia Sotomayor and Ketanji Brown Jackson, deliberately dividing up voters by race and drawing majority-minority districts is critical in some contexts to overcoming this country’s history of racial discrimination. But to the conservatives, doing that is itself racial discrimination.
Callais’ implications for the midterms will probably not be as dramatic as some have predicted. While Republicans are likely to pick up an additional seat in Louisiana, the Court’s decision comes almost certainly too late to spur a wave of judicial decisions finding other majority-minority districts unconstitutional. Cases alleging racial gerrymanders take time, and federal courts are not allowed to interfere in state electoral rules too close to an election. So while Callais is of great importance, its immediate impact will probably be limited.
But I’ll conclude with one point against the Callais dissenters, and one point in their favor.
Here’s the point against. The liberal position on affirmative action and other uses of race to benefit minorities would be much stronger if the left, over the last couple of decades, had not steered the ideology and practices of affirmative action in so palpable an anti-Asian and anti-white direction. What the left called “anti-racism” became racist, and everyone with eyes could see it. What the left called “inclusion” became exclusion.
By overplaying its hand on affirmative action, and by engaging in doublespeak while pushing “anti-racism” and “diversity,” the left made a huge tactical mistake, undermining its own credibility and empowering the conservative backlash. When, today, Democratic opponents of Louisiana’s partisan gerrymandering call it racist, they are not going to be taken seriously. And they shouldn’t be: They are simply playing a race card to conceal their own partisan objectives.
Now here’s the point in the dissent’s favor. The Callais dissenters vigorously decry the Court’s 2019 Rucho case, which held that partisan gerrymanders are constitutional. I agree with them. The sorry and democracy-eroding effects of that decision are now playing out all over the country.
Partisan redistricting can lock in control of a political party even if that party does not represent the majority. In Louisiana, for example, registered Democrats actually outnumber Republicans by about 37 percent to 35 percent (the rest are independent or belong to other parties). But if, in a given year, Republicans happen to get control of the statehouse, they can in theory draw redistricting maps that lock in their party’s legislative control, and assure it disproportionate congressional representation, for decades. The same, of course, goes for Democrats—as recent developments in Virginia may illustrate.
That’s not democracy, and it shouldn’t be constitutional.
Good article, but it needs to include a discussion of how illegal immigration increased the number of seats a state gets in the House of Representatives.
Maybe the partisan gerrymander is Constitutional, maybe it isn't. What one would think, however, is that to a free people it should be odious. It's odious in Texas, it's odious in California. But how do we get to where we should be in this toxic environment?