Oct. 20 (UPI) — The U.S. Supreme Court is weighing a decision in the case Louisiana vs. Callais that may guide how the Voting Rights Act is enforced.
The high court heard rearguments last week in the case over the Louisiana legislature’s redistricted congressional map. A decision may be weeks, if not months, away.
The legislature redrew its congressional map in 2024 to comply with Section 2 of the Voting Rights Act. The new map included two districts where a majority of voters are Black out of six districts total.
Plaintiffs in Louisiana vs. Callais argue that the redrawn map violates the Equal Protection Clause of the 14th Amendment of the U.S. Constitution because race was a guiding consideration in redistricting.
The Supreme Court has broadened the scope of this case with reargument under a supplemental question: Is Section 2 of the Voting Rights Act constitutional?
The collision between these two pieces of doctrine, both intended to insure equality in political participation, raises a critical question about how race and representation should be approached, one that the court is now poised to answer.
“The court is signaling that there has to be some reconciliation that happens beyond the status quo,” Atiba Ellis, Laura B. Chisholm Distinguished Research Scholar and professor of law in the Case Western Reserve School of Law, told UPI. “It’s hard to predict exactly how far that will go.”
One goal, different approaches
Section 2 and the Equal Protection Clause may share an underlying purpose but they take different approaches to meeting that goal.
Section 2 of the Voting Rights Act of 1965 prohibits racial discrimination in election practices.
The extremes, according to Ellis, are that the court could determine Section 2 of the Voting Rights Act is unconstitutional or it could reinterpret the test that it has long used in addressing concerns about race in redistricting cases.
Somewhere between the extremes is the court striking down the map at question but preserving Section 2.
“On the scale of possible solutions, it demonstrates that the court, informed by its colorblind jurisprudence that we saw in Students for Fair Admissions vs. Harvard College, is wanting to further restrict if not all but abolish the use of race-conscious remedies in the elections context,” Ellis said.
Legal tests, cases
In the 2023 case Students for Fair Admissions vs. Harvard, the Supreme Court ruled that using race as a factor in college admissions violates the Equal Protection Clause.
The test that guides Section 2 enforcement, referred to as the Gingles test, is the criteria required to prove vote dilution under Section 2. It is based on the court’s decision in the case Thornburg vs. Gingles in 1986.
The Gingles test is a “results test,” Ellis said.
“We simply look at a practice like redistricting in its context and the results that it has,” he said. “Thornburg v. Gingles basically created a roadmap for the inquiry. Then a court can make an inquiry within the totality of the circumstances, including the impact, the history, the background and determine whether that practice violates Section 2.”
Equal Protection Clause enforcement is guided in part by a precedent established in the case Shaw vs. Reno. This case in 1993 was over an oddly shaped majority-Black congressional district drawn in North Carolina.
The Supreme Court struck down this map, ruling that it violated the Equal Protection Clause because race was a predominant factor in its creation.
Unlike the Gingles test, the Shaw test is based on intent, according to Ellis.
“From the Shaw line to today, legislatures have had to basically walk this balance between not making race the predominant factor in redistricting — but you also can’t use race divisively by subsuming a minority group’s political power to the majority’s advantage,” Ellis said. “The former is what the Shaw line of precedent is out to do. The latter is what Section 2 does.”
“The problem, at least according to the Callais plaintiffs bringing the suit and other political entities that are supporting their position, is that these two precedents are inherently irreconcilable,” he continued.
John Cusick, assistant counsel at the Legal Defense Fund, serves as a member of the counsel in the Louisiana vs. Callais case arguing in defense of the Louisiana congressional map. He represents the appellants in the case Robinson vs. Landry, which was the impetus for Louisiana to redraw its congressional map.
Cusick told UPI that the case is part of a broader effort to limit race-conscious remedies to Civil Rights violations.
“What’s at stake in this case is that opponents are seeking to roll back progress while there is a simple truth that remains: that Black voters in Louisiana deserve the same fair and effective representation as many other communities throughout the country,” Cusick said. “So Louisianans have organized and legislated and litigated for the promise of a fair legislative map.”
“What’s consistent here is that decades of Supreme Court precedent make clear that districts created to remedy the type of racial discrimination against Black voters that’s at the heart of this case is clear and consistent and well-settled law,” he continued. “That Louisiana creating a first and second majority minority district is constitutional and not, per se, a racial gerrymander.”
Broader issue
Based on the Supreme Court precedents at play, Cusick believes Louisiana’s congressional map will be found to be permissible. However, the supplemental question over whether the constitutionality of Section 2 as a whole could send ripples across Civil Rights law.
“The Voting Rights Act is the crown jewel of Civil Rights legislation,” Cusick said. “It has the greatest effect on this country’s promise of full and equal citizenship for all Americans. We are seeing efforts throughout the country to attack many of the tools that Civil Rights legislatures have relied on, whether they are constitutional protections, whether they are statutory protections, that identify racial discrimination, that root it out and provide fair and effective remedies in doing so.”
Cusick adds that attempts to peel away Section 2 can also have effects beyond Civil Rights protections against racial discrimination. Protections for people based on gender identity and disability are also at risk.
“If the court is adhering to the supplemental question presented, this case shouldn’t have a broader impact on the Voting Rights Act, specifically Section 2, let alone other areas of the law,” Cusick said. “While we’re hopeful of that, we’re not naive.”