Racism is wrong. At least that’s what I’ve been told my entire life. But if racism is wrong, why do so many people demand we make decisions based on race? Is an election fair if the people who vote are racially chosen? If it was wrong for people to be denied the representation because of their race, why is it OK for them to deny representation to others for the same reason? Is choosing representation based on race is wrong? That is the question presented to the Supreme Court in the case Louisiana v. Callais et al.
How, Not if, We Gerrymander
Gerrymandering, or drawing district to gain a political advantage is nothing new in America.
The term is derived from the name of Gov. Elbridge Gerry of Massachusetts, whose administration enacted a law in 1812 defining new state senatorial districts. The law consolidated the Federalist Party vote in a few districts and thus gave disproportionate representation to Democratic-Republicans. The outline of one of these districts was thought to resemble a salamander. A satirical cartoon by Elkanah Tisdale that appeared in the Boston Gazette graphically transformed the districts into a fabulous animal, “The Gerry-mander,” fixing the term in the popular imagination.
Gerrymandering – Britannica
More recently, states have used race to draw district maps, but still with a political advantage in mind. Louisiana’s latest congressional map has been challenged in court as being unconstitutional.
These cases concern whether Louisiana’s new congressional map is an unconstitutional racial gerrymander. In 2022, after the State redrew its congressional districts, a federal judge in Robinson v. Ardoin, …, held that the 2022 map likely violated §2 of the Voting Rights Act of 1965, 52 U. S. C. §10301 et seq., because it did not include an additional majority-black district.
Louisiana v. Callais et al.
After the 2020 census, Louisiana, like other states, redrew their congressional districts. Technically, Louisiana did not have to redraw their maps, since the state had the same number of members in the House of Representatives as they had under the previous census. They did redraw their maps, and a federal judge decided that they had violated §2 of the Voting Rights Act of 1965. Subsection (a) states that no citizen of the United States can have their right to vote denied or abridged because of their race. The question really comes up in subsection (b).
(b) A violation of subsection (a) is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.
52 USC §10301
What does it mean to “have less opportunity” to elect representatives of their choice? According to the judge in the Robinson v. Ardoin case, that meant having a congressional district made up of a majority of black citizens. The judge ordered Louisiana to draw a new map.
But when the State drew a new map, SB8, that contained such a district, the new map was challenged as a racial gerrymander. A three-judge court in Callais v. Landry, …, held that SB8 violated the Equal Protection Clause of the Fourteenth Amendment, and the State appealed to this Court.
Louisiana v. Callais et al.
Sounds to me like damned if you do, damned if you don’t. Don’t include a majority black district and one court says no. Include a majority black district and other court says no. What was Louisiana to do? They appealed to the Supreme Court.
The parties originally briefed and argued this suit last Term, and their arguments at that time highlighted problems in the existing body of §2 case law. One problem resulted from the rule that in racial gerrymandering cases, unlike other cases involving claims of racial discrimination, strict scrutiny is triggered only if race “predominated” in the State’s decision making process.
Louisiana v. Callais et al.
In other words, the courts had created problems based on how they decided cases involving racial discrimination and the Voting Rights Act. The first problem was that the courts treated racial discrimination differently if it involved gerrymandering. The courts said the only way to trigger strict scrutiny, the highest level of effort needed for governments to infringe on your rights, is if the state predominantly based its decision on race. Well, the State doesn’t make decisions, the representatives in their legislature does. Just how does a court determine what the legislators were thinking when they had the maps drawn, or when they voted on them? That is just one problem with the court’s precedent.
Another problem stemmed from the long-unresolved question whether compliance with the Voting Rights Act provides a compelling reason that may justify the intentional use of race in drawing legislative districts.
Louisiana v. Callais et al.
In other words, does the Voting Rights Act require states to predominantly use race when laying out their congressional maps? Wouldn’t that automatically trigger strict scrutiny?
For over 30 years, the Court has simply assumed for the sake of argument that the answer is yes. These and other problems convinced the Court that the time had come to resolve whether compliance with the Voting Rights Act can indeed provide a compelling reason for race-based districting.
Louisiana v. Callais et al.
For over 30 years, the Supreme Court has simply rubber stamped the idea that racially based gerrymandering was OK because the Voting Rights Act said so. But, as Justice Alito wrote in the majority opinion, the court decided it was time to resolve whether or not that was true.
Racial Discrimination
Are states allowed to discriminate based on race? According to the court, the answer is yes.
(a) The Constitution almost never permits a State to discriminate on the basis of race, and such discrimination triggers strict scrutiny. The Court’s precedents have identified “only two compelling interests” that can satisfy strict scrutiny: “avoiding imminent and serious risks to human safety in prisons,” and “remediating specific, identified instances of past discrimination that violated the Constitution or a statute.”
Louisiana v. Callais et al.
Apparently the states can use racial discrimination, but only to avoid safety risks in prison or to remediate specific instances of past discrimination. Which points to another question.
The question presented is whether compliance with §2 of the Voting Rights Act should be added to this very short list of compelling interests. The Court now holds that compliance with §2, as properly construed, can provide such an interest. A proper interpretation of §2 requires examining the statutory text to understand what it demands with respect to drawing legislative districts.
Louisiana v. Callais et al.
Does §2 of the Voting Rights Act identify specific instances of past discrimination? No. So the Supreme Court plans to decide how hard governments must work to infringe on your rights. There is a twist that I did not see the court deal with. Specifically, that a majority black congressional district must deny to at least one group, the opportunity to elect the representatives of their choice. Which is exactly what Justice Kagan argued for in her dissent.
Kagan Dissent
To justify her position, Justice Kagan came up with a rather strange straw man for her argument.
Consider the story of a hypothetical congressional district in a hypothetical State, subjected to a redistricting scheme. The example is admittedly stylized, but in its essence simulates the dispute before us, and clarifies the immense issues at stake. The district, let’s say, is a single county, in the shape of a near-perfect circle, sitting in the middle of a rectangular State.
Louisiana v. Callais et al.
OK, let’s imagine this hypothetical district, consisting of a single county. Its shape really is irrelevant. This county, like all others, is in a state that has a history.
The State is one with a long history of virulent racial discrimination, and its many effects, including in residential segregation and political division, remain significant even today.
Louisiana v. Callais et al.
A history of virulent racial discrimination. How long ago? Justice Kagan claims it remains significant today, but she’s creating the hypothetical in an attempt to promote her agenda.
The population of the circle district is 90% Black; the rest of the State, divided into five surrounding districts, is 90% White. And voting throughout all those districts is racially polarized: Black residents vote heavily for Democratic candidates, while White residents vote heavily for Republicans. The circle district thus enables the State’s Black community to elect a representative of its choice, whom no neighboring community would put in office.
Louisiana v. Callais et al.
Again, a perfectly crafted straw man, based not in any practical reality, but meant to promote an agenda. Along with what comes next.
But that arrangement, in this not-so-hypothetical, is not to last. The state legislature decides to eliminate the circle district, slicing it into six pie pieces and allocating one each to six new, still solidly White congressional districts. The State’s Black voters are now widely dispersed, and (unlike the State’s White voters) lack any ability to elect a representative of their choice. Election after election, Black citizens’ votes are, by every practical measure, wasted.
Louisiana v. Callais et al.
In Justice Kagan’s crafted straw man, her own racial bias shows through. Blacks vote heavily for Democrats and Whites for Republicans. This mythical state, apparently, has no significant hispanic or asian population. And while the stereotype of voting patterns may have some historic basis, they also have been changing over time. What is Kagan’s conclusion from this thought exercise?
That is racial vote dilution in its most classic form. A minority community that is cohesive in its geography and politics alike, and that faces continued adversity from racial division, is split—“cracked” is the usual term—so that it loses all its electoral influence.
Louisiana v. Callais et al.
This straw man that Justice Kagan comes up with has one fatal flaw. While the straw man may be an excellent example of racial vote dilution, it in no way resembles what Louisiana did with their congressional map.
And because that is so, Congress in the Voting Rights Act made the practice illegal. Section 2 of that Act guarantees that members of every racial group have an equal “opportunity” to “elect representatives of their choice.” 52 U. S. C. §10301(b).
Louisiana v. Callais et al.
The Voting Rights Act may have claimed to make Justice Kagan’s straw man illegal, but she seems to forget that the Constitution of the United States supersedes federal law.
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land;
U.S. Constitution, Article VI, Clause 2
So when the Fifteenth Amendment says citizens shall have their right to deny or abridge for reason of race, wouldn’t that include denying a majority of citizens their chosen representative in favor of the minorities choice?
Even after the Fifteenth Amendment banned racial discrimination in voting, state officials routinely deprived African Americans of their voting rights. Through a seemingly boundless array of mechanisms—most of them facially race-neutral and among them the drawing of district lines—States either prevented Black citizens from casting ballots or ensured that their votes would count for next to nothing.
Louisiana v. Callais et al.
And those cases of state officials depriving people their right to vote due to their race have been prosecuted, or at least the ones we know about. And while the Voting Rights Act has helped enforce the Fifteenth Amendment’s prohibition on denying or abridging the right to vote, does it guarantee the outcome they desire?
The Voting Rights Act was meant as the corrective. And when this Court construed it too narrowly—insisting that a person suing under Section 2 had to prove discriminatory intent—Congress amended the law so that it turned solely on discriminatory effects. Under that revised version, a person has a good Section 2 claim if the challenged state action, in the “totality of circumstances,” “results in” an electoral system “not equally open” to members of his racial group—meaning a system giving those citizens “less opportunity” to “participate in the political process and to elect representatives of their choice.” §10301 (emphasis added).
Louisiana v. Callais et al.
Which brings to mind an interesting question? Is this obsession with gerrymandering a question of race or of political party? Because the United States doesn’t have a black political party or a white political party. Yes, election outcomes have shown that majority black districts tend to vote for the Democratic party, but then there are quite a few predominantly white districts that do as well. So is the vote dilution racial or political? Is Justice Kagan attempting to justify the vote dilution of the Republican party?
And for 40 years now, this Court has recognized that language to encompass districting decisions that, in the way illustrated above, result in vote dilution—the “minimiz[ing]” of minority voters’ “ability to elect their preferred candidates.”
Louisiana v. Callais et al.
In other words, fewer members of the House of Representatives from the Democratic party.
But no longer. Under the Court’s new view of Section 2, a State can, without legal consequence, systematically dilute minority citizens’ voting power. Of course, the majority does not announce today’s holding that way. Its opinion is understated, even antiseptic. The majority claims only to be “updat[ing]” our Section 2 law, as though through a few technical tweaks. Ante, at 26, 29, 32. But in fact, those “updates” eviscerate the law, so that it will not remedy even the classic example of vote dilution given above.
Louisiana v. Callais et al.
Except when the court looked at outcome, rather than intent, the effect was to guarantee democratic candidates an advantage by requiring gerrymandering based on race.
I dissent. The Voting Rights Act is—or, now more accurately, was—“one of the most consequential, efficacious, and amply justified exercises of federal legislative power in our Nation’s history.” … It was born of the literal blood of Union soldiers and civil rights marchers. It ushered in awe-inspiring change, bringing this Nation closer to fulfilling the ideals of democracy and racial equality. And it has been repeatedly, and overwhelmingly, reauthorized by the people’s representatives in Congress. Only they have the right to say it is no longer needed—not the Members of this Court. I dissent, then, from this latest chapter in the majority’s now-completed demolition of the Voting Rights Act.
Louisiana v. Callais et al.
The problem isn’t with the Voting Rights Act, but with the Supreme Court’s requirement that a certain outcome be achieved.
Conclusion
What did the court conclude in this case?
Held: Because the Voting Rights Act did not require Louisiana to create an additional majority-minority district, no compelling interest justified the State’s use of race in creating SB8, and that map is an unconstitutional racial gerrymander.
Louisiana v. Callais et al.
Contrary to what Justice Kagan said in her dissent, the Voting Rights Act does not require a state to set aside a certain number of congressional districts to be a majority of minority voters. For that reason, Louisiana had no compelling interest in using race to create their congressional map. Which means it was the judges in the Robinson v. Ardoin who was wrong when they demanded that Louisiana do so. They did so by placing a flawed opinion of the Supreme Court above the actual supreme law of the land.
The ridiculous straw man that Justice Kagan put forward shows just how racism is still alive and well in the federal government. It goes far beyond recognizing past voting habits, but assumes they are based on a person’s race rather than how they were raised. If we want racism to stop, we must stop acting in a racist fashion. If Justice Kagan wants to make sure that members of the Democratic party get more votes, she should just say so.
