Supremely Partisan: How the Conservative Justices are Destroying the Voting Rights Act to Further the Interests of the Republican Party
Any day now, the Supreme Court is going to issue its decision in the complicated election law dispute Louisiana v. Callais. There is no suspense as to the outcome of this case. The Court will either eliminate altogether or make it extremely difficult and rare for lower courts and legislatures to take race into account when plaintiffs challenge racial redistricting under the Voting Rights Act (VRA). That decision will will lead to the bizarre result that legislatures can cleverly use racial concerns to redistrict people of color in ways that violate the VRA but not allow judges to effectively provide a remedy for those violations-accomplishing the exact opposite of what the VRA actually requires. This is judicial aggression at its worst.
Section 2 of the VRA provides the following: “No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color….” The facts and background of the Callais case are well summarized by the Brennan Center:
The Callais case arises from the redrawing of Louisiana’s congressional map after the 2020 census and subsequent litigation in two different federal district courts. Shortly after the Louisiana legislature adopted a new congressional map in 2021, Black voters and organizations filed lawsuits challenging the map. The suits contended that the map violated Section 2 of the Voting Rights Act because it diluted the votes of Black voters in central Louisiana. As a remedy, the plaintiffs asked the court to order the state to redraw the map to create a second Black-majority congressional district in affected areas.
The district court ruled in their favor....The Fifth Circuit Court of Appeals subsequently affirmed the ruling, and, in early 2024, the state legislature redrew the map to add a new Black-majority congressional district running between Shreveport and Baton Rouge. However, a group of white voters then challenged the redrawn map in a second federal lawsuit. Their suit contended that the configuration of the map’s new Black-majority congressional district was an unconstitutional racial gerrymander...Black plaintiffs from the original cases intervened in the new case.
After a trial, a three-judge panel ruled in favor of the white plaintiffs. Both Louisiana and Black voters from the original case then appealed to the Supreme Court, which first heard argument in the case in March 2025. However, rather than decide the case, the Court announced on the last day of its term that the Callais case would be held over for reargument in the fall. In conjunction with the reargument, the Court asked the parties to brief a different question: Whether creation of a majority-minority district as a remedy for vote dilution found by a court under Section 2 of the Voting Rights Act violates either the 14th or 15th Amendments.
The Court is almost certainly going to answer that question in the affirmative.
There will
be time enough to explain the legal shortcomings of the inevitable destruction
of the VRA by the conservative justices. The purpose of this post is to show
what this new election law landscape will look like once the Supreme Court eviscerates
the VRA and rewrites it to suit the justices’ partisan preferences.
The story begins with a series of cases in the 1990s in which the Court held that states violate the Constitution when the “predominant intent” of the legislature when drawing an election map involves racial considerations. The Court made no distinction between legislatures trying to address the harm caused by generations of racial discrimination in map drawing and legislatures trying to continue that harm by making it more difficult for minorities to elect their preferred candidates. The Court's failure to distinguish those two types of redistricting is the cause of much of the chaos and harm we see today in election law cases.
That line of cases also held that, despite the close correlation between race and partisan voting, legislatures could draw maps that help or hurt racial minorities as long as the motivation for doing so was not racial but to insure favored partisan results. In fainess to the conservatives on the Court, the first case to so hold was decided by four liberals and Justice O'Connor. But make no mistake, that decision was likely motivated by a reaction of the justices in the majority to the other justices' refusal to distinguish the legislative drawing of maps to address racial discrimination and the creation of maps to perpetuate racial discrimination.
Given that line of cases, which effectively insulates most allegations of racial redistricting from judicial review, it became even more important for the Court to police partisan redistricting in a meaningful way. Otherwise, legislatures could simply pack and crack minority voters in ways that are clearly race based but then defend that result (which violates Section 2 of the VRA) on the basis that making it more difficult for racial minorities to elect their own candidates was done for partisan, not racial reasons.
Unfortunately, in Rucho v. Common Cause, the conservative justices held that cases presenting challenges to maps drawn for partisan purposes present non-justiciable political questions. Thus, as long as a legislature can show that it drew its map for primarily partisan not racial reasons, there will be no viable way to challenge that map, and even if such a challenge is successful, Callais will likely forbid or greatly limit race-based remedies.
Of course, Callais will not be the first time that the Roberts Court guts the VRA for partisan purposes. In Shelby County v. Holder, the Court all but ended Section 5 of the VRA, which required states and counties with long histories of using racial discrimination in voting to preclear with either the Department of Justice or a three-judge court any election changes that hurt minority voters. The Court took that step based largely on a non-textual, anti-historical principle that Congress must have a strong reason to treat some states differently than others. There is a vast literature criticizing that novel equal state sovereignty principle made up by the Roberts Court out of whole cloth.
Red states after Callais will almost certainly use the expected decision to redistrict minority voters in ways that weaken their ability to elect the leaders they prefer. You might respond that blue states will do just the opposite to help elect more Democrats. But that assumes the Roberts Court will treat those two types of racial redistricting the same way in the future. That would be a very bad bet.
More importantly, the VRA was enacted and re-enacted many times to address a specific problem: the use of race by legislatures to hurt minority voters. There is no history in this country of legislatures voluntarily using race to help minority voters until the VRA required them to do so. And Congress had the authority to enact the VRA under Section 2 of the 15th Amendment, which gives Congress the power to enforce its ban on racial discrimination in voting through "appropriate legislation."
The VRA's work is nowhere near done, though some progress has been made. The Court is about to end all of that progress, however, and the result will greatly help the Republican Party. And that judicially mandated redistricting landscape will not be grounded in text, history, or tradition, but in the partisan political preferences of the conservative justices.
-- Eric Segall