Courtly Observations is a recurring series by Erwin Chemerinsky that focuses on what the Supreme Court’s decisions will mean for the law, for lawyers and lower courts, and for people’s lives.
The Supreme Court’s decision in Louisiana v. Callais is the culmination of decades of its rulings limiting the Voting Rights Act. No one, including the court’s majority, disputes the impact of the decision: throughout the South, election districts that were drawn to protect Black voters, such as having districts with a majority of voters of color, will be redrawn to try and help Republicans. As a result, there will likely be many fewer people of color elected to Congress and state legislatures.
Louisiana v. Callais, and its impact, must be understood as the product of five prior decisions by the court in the area of voting rights, all split along ideological lines: City of Mobile v. Bolden, Shaw v. Reno, Shelby County v. Holder, Rucho v. Common Cause, and Alexander v. South Carolina State Conference of NAACP.
The first case noted above, City of Mobile v. Bolden, was decided in 1980, and held that an election system that had the impact of disadvantaging minorities was not to be subjected to strict scrutiny (the most stringent form of review) unless there was proof of a racially discriminatory purpose. The case involved a challenge to Mobile, Alabama’s use of an at-large election for its city council. The city was predominately white, with a sizeable Black population. The long history of racially polarized voting meant that only white individuals were elected in the at-large system. Nonetheless, the Supreme Court found no constitutional violation because there was not sufficient evidence of a discriminatory purpose.
Previously, the court had ruled that proving an equal protection violation under the 14th Amendment required proof of a racially discriminatory purpose. In City of Mobile v. Bolden, the court said that this also applies to claims under the 15th Amendment, which had a broad goal of eliminating race discrimination in voting. If proof of discriminatory impact (as opposed to purpose) were sufficient to show a violation of the 15th Amendment, then election practices that disadvantage racial minorities – such as through partisan gerrymandering – would be impermissible.
Two years after City of Mobile v. Bolden, Congress thus amended Section 2 of the Voting Rights Act to expressly provide that proof of a racially disparate impact – not just a racially discriminatory purpose – was sufficient for liability under the statute.
The next case of note, 1993’s Shaw v. Reno, held, and many subsequent cases reaffirmed, that the use of race in drawing election districts to benefit racial minorities is permissible only if the government can show that it is necessary to achieve a compelling purpose. This is the premise of Justice Samuel Alito’s majority opinion in Louisiana v. Callais, which says that the government cannot use race as a predominant factor in drawing election districts even if it is needed to comply with Section 2 of the Voting Rights Act.
Although this is consistent with Supreme Court cases mandating strict scrutiny for government affirmative action efforts, the dissent argued that affirmative action in voting is different from affirmative action in areas such as employment or education. In the latter areas, racial classifications benefiting minorities arguably disadvantage a white individual who is not hired or admitted because of the affirmative action program. But in voting, every person still gets to vote and every vote is counted equally.
Shaw v. Reno is actually the predicate for Alito’s opinion in Callais. In Shaw v. Reno the court held that the government’s use of race as a predominant factor in drawing election districts violates equal protection unless strict scrutiny is met. In other words, the court rejected that preventing a discriminatory effect against voters of color in drawing a district is a sufficiently compelling interest to meet strict scrutiny.
The court then decided Shelby County v. Holder in 2013. In the wake of the court’s decision in Louisiana v. Callais, there rightly has been much discussion of its relationship to Shelby County. The Voting Rights Act of 1965 had two crucial mechanisms to protect voting rights: Section 2, which prohibits election systems from discriminating against voters of color (and was at issue in Callais), and Section 5, which requires jurisdictions with a history of race discrimination in voting to obtain preapproval from the attorney general before changing election systems. In Shelby County, the court effectively nullified Section 5; no jurisdiction has needed to get preclearance since it was decided.
But Shelby County is also relevant to Louisiana v. Callais in another way: it reflects the court giving no deference to Congress when it is legislating under Section 2 of the 15th Amendment, which empowers it to enact legislation to enforce the prohibition of race discrimination in voting. Shelby County was the first time since the 19th century that the court declared unconstitutional a federal civil rights law protecting racial minorities.
Quite similarly, the Supreme Court in Callais gave no deference to Congress, which, as noted above, in 1982 amended Section 2 of the Voting Rights Act to provide that proof of a racially disparate impact is sufficient for liability. Alito’s majority opinion in Callais was explicit that only proof of intentional race discrimination will be sufficient. As Justice Elena Kagan said in dissent, “a plaintiff will have to show—contrary to Section 2’s clear text and design—that the legislators were motivated by a discriminatory purpose.” As she said, this almost always will be “impossible” as legislators rarely will express a racist motive.
Also directly relevant is the 2018 case of Rucho v. Common Cause. In Rucho, the Supreme Court held, 5-4, that challenges to partisan gerrymandering are non-justiciable political questions (that is, such challenges cannot be heard in federal court). Partisan gerrymandering is where the political party that controls the legislature draws election districts to maximize safe seats for that party. The result – as we have witnessed this year in Texas, California, and most recently Virginia – is that legislatures can engage in partisan gerrymandering with impunity knowing that there is no possibility of a challenge in federal court.
Race and politics, especially for Black Americans, are closely linked. Black individuals overwhelmingly vote Democratic. Before Callais, Section 2 of the Voting Rights Act had been interpreted to require that Republican controlled state legislatures draw election districts that had a majority of voters of color to ensure that there was not a racially discriminatory impact. This led to more individuals of color being elected to public office. But now state legislatures, unconstrained by the Voting Rights Act, can redraw their maps to eliminate these districts. They can spread Black voters among many districts so that they are a minority or pack them into a district to limit their political strength and help Republicans.
Without partisan gerrymandering, the impact of Callais would be limited. But with it, and with sophisticated modern techniques of gerrymandering, Callais will have a devastating effect on the election of Black individuals for legislative offices.
Finally is the 2024 case of Alexander v. South Carolina State Conference of the NAACP. With race and party so intertwined, one solution would be to create a presumption that any use of race in drawing districts would have to meet strict scrutiny even if it was done for purposes of partisan gerrymandering. In a case largely forgotten, 2016’s Cooper v. Harris, the court in an opinion by Kagan said exactly this (in a footnote): “In other words, the sorting of voters on the grounds of their race remains suspect even if race is meant to function as a proxy for other (including political) characteristics.” This would mean that there would be no need to decide if districting was based on race or politics; the use of race would be impermissible.
But the court abandoned this approach in Alexander. After the 2020 census, South Carolina’s Republican-controlled legislature adopted a new congressional map that moved tens of thousands of Black voters to a different district, effectively making the district a safe seat for Republicans. A three-judge federal district court found that this violated equal protection.
The Supreme Court, in an opinion by Alito, reversed and said that courts must presume that legislatures acted in good faith and unless there is proof of a racially discriminatory motive, they must accept that the goal was gaining a partisan advantage. As Kagan explained in her dissent in Callais, “the State need do nothing more than announce a partisan gerrymander.” Therefore, according to her, “a State may (so says the majority) draw districts for any political purpose, including for a purely ‘partisan purpose[]’—that is, to increase one party’s electoral strength—no matter their racial effects.”
If any one of these cases had come out differently, Louisiana v. Callais would not matter. If proof of racially disparate impact would be sufficient for a constitutional violation, states could not engage in partisan gerrymandering which disadvantages racial minorities. If the court said that race could be used in districting to benefit minorities without violating equal protection, then using race to avoid liability under Section 2 would pose no equal protection problems. If the court gave deference to Congress in acting under the 15th Amendment, it would uphold Section 2 of the Voting Rights Act allowing liability based on disparate impact. If partisan gerrymandering was not allowed, then state legislatures could not use it with the effect of limiting the impact of racial minorities’ votes. If the court said that it would be assumed that gerrymandering was based on race rather than politics when both were present, then states could not respond to Louisiana v. Callais in a way that will be to the detriment of voters of color.
Looked at this way, it is possible to appreciate the enormous significance of Louisiana v. Callais. After all the court had done in its earlier decisions to limit the protection of voting rights, the one potent tool for protecting voting rights that remained was Section 2 of the Voting Rights Act. But as Kagan said, the court’s decision renders Section 2 all but a dead letter.