The Supreme Court on Wednesday appeared ready to strike down a 2024 congressional map that a group of voters has challenged as the product of unconstitutional racial gerrymandering – that is, according to them, it sorts voters based on race in violation of the 14th Amendment’s equal protection clause. During nearly two-and-a-half hours of oral arguments, the court’s conservative justices signaled that they are likely to undermine a key provision of the Voting Rights Act, even if they may not ultimately strike it down altogether.
Wednesday’s oral argument was the latest chapter in a dispute that dates back to 2022, when Louisiana adopted a new congressional map in the wake of the 2020 census. Roughly one-third of the state’s population is Black, but the 2022 map had only one majority-Black district out of the six districts allotted to the state. That prompted a group of Black voters to go to federal court, where they argued that the 2022 map violated Section 2 of the federal Voting Rights Act, which bars discrimination in voting practices.
U.S. District Judge Shelly Dick agreed that the 2022 map likely violated Section 2. She prohibited the state from using the map in future elections and ordered the state to draw a new map with two majority-Black districts.
The U.S. Court of Appeals for the 5th Circuit upheld that ruling. It gave the state until Jan. 15, 2024, to enact a new map or face the prospect that the lower court would adopt a plan for the 2024 elections.
Louisiana drew a new map that created a second majority-Black district. The 2024 map drew a challenge from a group of voters who describe themselves as “non-African American.” A three-judge federal district court agreed with them that the 2024 map violated the Constitution’s equal protection clause by sorting voters based on race, and it barred the state from using the map in future elections.
In May 2024, the Supreme Court put the three-judge district court’s ruling on hold, which allowed the state to move forward with using the new map in the 2024 elections. Voters in the 6th District, the new majority-Black district, elected Cleo Fields, a former member of Congress who had represented another majority-Black district during the 1990s, to represent them.
Louisiana and the Black voters appealed to the Supreme Court, which heard oral arguments for the first time in the spring of this year. Louisiana contended that, once the lower courts had concluded that the 2022 map likely violated the VRA and directed it to draw a map with a second majority-Black district, its primary goal was to protect the state’s powerful Republican incumbents in Congress, such as Speaker of the House Mike Johnson and Rep. Julia Letlow, who sits on the House Appropriations Committee.
The “non-African American” voters countered that it was “utterly implausible” that both race and politics were equally responsible for the 2024 map. The state first decided to draw the second majority-Black district and then considered how to draw the map in a way that would protect Republicans, they contended.
On June 27, the last day before the justices’ summer recess, the court issued a brief order setting the case for another argument in the 2025-26 term.
On Aug. 1, the justices issued an order in which they directed the litigants to file briefs addressing a new question: “whether the State’s intentional creation of a second majority-minority district violates” either the 14th Amendment or the 15th Amendment, which bars the government from denying or restricting voting rights based on race.
At Wednesday’s oral argument, lawyer Janai Nelson, representing the Black voters, defended the 2024 map. She told the justices that “[a] mere two years ago, in Allen versus Milligan, a case nearly identical to” this one, the Supreme Court “noted that under certain circumstances, it has authorized race-based redistricting to remedy state redistricting maps that violate Section 2.”
Louisiana Solicitor General Benjamin Aguiñaga, by contrast, urged the court to “reevaluate its voting precedents.” Although the state had defended the 2024 map when the case was before the Supreme Court in March, Aguiñaga told the justices on Wednesday that those precedents had “placed states in impossible situations where the only sure demand is more racial discrimination for more decades.” Therefore, he said, “we have taken the position that Section 2, insofar as it requires race-based redistricting, is unconstitutional.”
Chief Justice John Roberts, the author of the court’s opinion in Milligan, appeared to suggest that the Milligan case should not necessarily dictate the outcome of the Louisiana case. “That case,” Roberts said, “took the existing precedent as a given.” And, he continued, “it was a case in which we were considering Alabama’s particular challenge based on … what turned out to be an improper evidentiary showing.”
Justice Elena Kagan countered that Alabama had “made several arguments that we specifically rejected” in Milligan. “And in the answers that you just gave to me,” she told Aguiñaga, “it seems to me that you repeated each and every one of those arguments that we rejected.”
Justice Brett Kavanaugh, who joined the majority in Milligan, raised a point that he had made in a concurring opinion in that case. “[T]his 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 … they should not be indefinite and should have a[n] end point.”
Nelson resisted any contention that Section 2 or race-based redistricting should have a similar end point. She noted, among other things, that Congress “decidedly did not” include a time limit in Section 2, even though it had done so elsewhere in the VRA.
Justice Ketanji Brown Jackson emphasized that Section 2 “is not a remedy in and of itself” but is instead “the mechanism by which the law determines whether a remedy is necessary” – which, she said, may or may not involve the consideration of race. “And so that’s why it doesn’t need a time limit,” she reasoned, “because it’s not doing any work other than just pointing us to the direction of where we might need to do something.”
As they had at the oral argument in March, some justices questioned whether the district court’s decision finding that the 2022 map likely violated Section 2 justified the creation of the 2024 map with its second majority-Black district. Justice Clarence Thomas pressed Nelson, asking whether the lower court had “order[ed] this particular map.”
Nelson responded that it had not. “The court gave the State of Louisiana an opportunity, as this Court has suggested it do. It gave it broad discretion, gave it wide latitude to create a map that it felt was satisfactory.”
But Aguiñaga told Thomas that the district court’s decision on the 2022 map “is the only reason” that the 2024 map exists. Louisiana, he said, drew the 2024 map “under protest … because the threat was that the federal courts were going to do it if we didn’t.”
Justice Amy Coney Barrett echoed Thomas’ concerns about the weight that the district court’s decision should carry. She noted that the court had “assumed without deciding … that complying with Section 2 is a compelling interest for purposes of the Fourteenth Amendment,” as part of the test that comes into play when race occupies a predominant role in redistricting. But in a case like the one involving the 2022 map, when “the State doesn’t really think” that the map “violates Section 2 and it hasn’t been finally adjudicated yet,” she seemed to suggest, is there really a compelling interest?
Kavanaugh also appeared somewhat receptive to the Trump administration’s argument, made by Principal Deputy Solicitor General Hashim Mooppan, that the constitutional problem before the court “is not the mere consideration of race in districting. The problem is when race subordinates traditional neutral principles and is the factor that cannot be compromised.” The Trump administration, while not jettisoning Section 2, would make it more difficult to bring a Section 2 claim: in its view, a violation of Section 2 cannot rest on a lack of equal opportunity for minority plaintiffs to participate in the political process when “politics, rather than race, is the likely reason for the State’s refusal to create a majority-minority district.”
Nelson pushed back when Kavanaugh broached the Trump administration’s argument, telling Kavanaugh that such a “suggestion would swallow Section 2 whole.”
Nelson cautioned that adopting her opponents’ position would create “a staggering reversal of precedent that would throw maps across the country into chaos.” But if the court believes that the 2024 map is unconstitutional, she continued, it should send the case back to the lower court for it to “use one of the many alternatives that are available that meet Section 2 and also comply with the Constitution.” But it should leave the lower court’s finding that the 2022 map violated Section 2 “undisturbed,” she said, “and it must be remedied.”
Mooppan countered that “there are roughly 60 Black representatives” in Congress right now, but “only 15 majority-Black districts.” “[N]one of these positions” advanced by the Trump administration or the other litigants opposing the 2024 map, he said, “is going to lead to there being no Black representation in Congress or anything remotely approaching that.”
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