The alarmingly high stakes in an easy Supreme Court voting rights case

Louisiana v. Callais, a case about whether Louisiana’s congressional maps are an illegal racial gerrymander, should be one of the easiest cases the justices have heard in many years. That’s because less than two years ago, the Supreme Court decided another gerrymandering case, known as Allen v. Milligan (2023), which by Louisiana’s lawyers’ own admission “presents the same question” as Callais. The Court will hear oral arguments in Callais on March 24. In Milligan, the Court — normally quite hostile to plaintiffs alleging violations of the Voting Rights Act, which is meant to protect minority ballot access — surprised most Court-watchers by reaffirming longstanding legal principles, first established in Thornburg v. Gingles (1986), which are intended to prevent states from drawing legislative maps that weaken the influence of voters of color. Chief Justice John Roberts and Justice Brett Kavanaugh, both Republicans, joined with all three of the Court’s Democrats in Milligan. The dispute in Callais began with a Louisiana congressional map that included only one Black-majority district (out of six total), despite the fact that Black Americans make up about a third of Louisiana voters. In Milligan, the Supreme Court ordered Alabama to redraw a similarly gerrymandered map to include a second Black-majority district. That similarity means there’s really no question how the Callais case should be decided. Nevertheless, this case is complicated because it forces the Supreme Court to resolve a conflict between two different federal courts, each of which has weighed in on Louisiana’s maps. One faithfully applied precedents like Milligan, ruling the state’s original maps needed to be redrawn; the other outright defied precedents requiring new maps. Also complicating matters is that this Court’s Voting Rights Act decisions often depart from the text of the law, they frequently are at odds with established precedents, and they almost always seek to narrow the scope of this landmark statute. Moreover, while Kavanaugh provided the fifth vote to retain preexisting law in Milligan, he also penned a brief concurring opinion suggesting that Congress’s power to enact laws that sometimes require “race-based redistricting cannot extend indefinitely into the future.” These factors make every racial gerrymandering case that reaches the Supreme Court an alarming event for voting rights lawyers, because each case provides an opportunity for the Court to do great damage to the Voting Rights Act. And that means though this should be an open-and-shut case, there is still uncertainty about whether the Court will maintain the status quo, or if it will choose to radically reshape the country’s voting rights protections. A battle between two different federal courts The struggle over Louisiana’s congressional maps began in June 2022, when Chief Judge Shelly Dick, an Obama appointee to the US District Court for the Middle District of Louisiana, determined that the state’s original maps — the ones that had only one majority-Black district — violated the Voting Rights Act. Her opinion concluded that “the appropriate remedy in this context is a remedial congressional redistricting plan that includes an additional majority-Black congressional district,” so she ordered Louisiana to draw new maps that include at least two Black-majority districts. This case is known as Robinson v. Ardoin. There have been lots of twists and turns in the Robinson case since Dick’s 2022 decision. But a federal appeals court eventually agreed with Dick that Louisiana must draw new maps with two Black-majority districts in November 2023. With two courts aligned against it, and no sign that the Supreme Court was likely to bail it out, Louisiana soon decided to give up the fight. The state passed a new map that includes two majority-Black districts, and the matter appeared to be settled. But then a different federal court, the Western District of Louisiana, decided to insert itself into the dispute. A new set of plaintiffs filed a lawsuit claiming that the state’s new maps are unconstitutional because the state paid too much attention to race when it drew the second Black-majority district. This is the Callais case, which was assigned to a three-judge panel in the Western District. Two of those judges, the ones appointed by Donald Trump, agreed with the plaintiffs and struck down the new maps. So Louisiana is now subject to two competing court orders. The first, from Dick, forbids it from using the old single-Black-district maps. The second, from the two Trump judges in the Western District, forbids it from using the new maps the state legislature enacted to comply with Dick’s order. In May 2024, the Court handed down a brief order permitting the state to use the new, two-Black-district maps during the 2024 election. The question before the Court now is whether to make that order permanent, allowing Louisiana to use the new maps until the next redistricting cycle begins after the 2030 census. Dick is clearly correct, and the two Trump judges are clearly wrong, about Louisiana’s maps If the Louisiana dispute is so similar to Milligan, how did the Western District justify its decision striking down Louisiana’s new maps? The short answer is that the two Trump judges behind that decision focused on a different line of Supreme Court cases which establish that the Constitution forbids states from using “race as the predominant factor in drawing district lines unless it has a compelling reason.” The two Western District judges essentially concluded that race predominated in the Louisiana legislature’s decision to draw the new maps, because it knew it had to include at least two Black-majority districts to comply with Dick’s order. The problem with this conclusion is that the Supreme Court has long held that states may consider race when they need to do so in order to comply with the Voting Rights Act. As the Court held in Cooper v. Harris (2017), a state may engage in “race-based districting” when it has “a strong basis in evidence” for concluding it must do so to comply with the Voting Rights Act. Under Cooper, a Voting Rights Act-compliant map is lawful if the state “had ‘good reasons’ to think that it would transgress the Act if it did not draw race-based district lines.” And it’s obvious that Louisiana had both “good reasons” and a “strong basis in evidence” for its conclusion that it needed to draw a second Black-majority district to comply with the law. A federal judge had literally ordered the state to do so. This decision was then upheld by a federal appeals court. And the Supreme Court had recently reached the same conclusion in a virtually identical case. A Supreme Court decision siding with the Western District, in other words, would make a mockery of the idea that the law should apply consistently and in a predictable manner. The justices already fought this exact same fight less than two years ago — the ink is barely even dry on the Milligan opinion — and the Court decided that maps like Alabama and Louisiana’s single-Black-district congressional maps violate the Voting Rights Act. So how could the justices resolve this case? Because the Milligan opinion is so recent, and because the Court’s membership has not changed since that decision, the most likely outcome in Callais is that the Supreme Court upholds Louisiana’s new maps. If no justice changes their vote from how they came down in Milligan, that means a 5-4 decision in favor of those maps. One wild card is Kavanaugh’s suggestion that the Voting Rights Act’s safeguards against racial gerrymandering “cannot extend indefinitely into the future.” Kavanaugh did not elaborate very much on this point in his Milligan concurrence, so it is impossible to know when he thinks the Voting Rights Act should expire. But Callais gives him an opportunity to impose such an expiration date if he chooses to do so. In their brief to the justices, Louisiana’s lawyers also propose another way the Court could resolve this case, which could make it much harder to challenge a racial gerrymander in the future. The Court has long held that any plaintiff who lives in an allegedly gerrymandered district may challenge the configuration of that district in federal court. Louisiana’s brief spends several pages criticizing this rule, but it doesn’t really propose an alternative rule or identify who should be allowed to file a racial gerrymandering suit if the current rule is abandoned. Because Louisiana does not lay out a clear alternative to existing law, it’s hard to predict what would happen if the rule permitting anyone in a legislative district to challenge its configuration were abandoned. But if the Supreme Court were to embrace a too-restrictive rule — one that does not allow anyone, or anyone who can reasonably be identified by voting rights lawyers, to file gerrymandering lawsuits — that would have the same effect as a decision permitting racial gerrymanders to exist. The law, after all, is meaningless if no one can enforce it. So Callais presents the Court with plenty of opportunities for mischief if five or more justices are determined to cut off racial gerrymandering suits. Should they follow their recent decision in Milligan, however, the obvious outcome is clear.

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The alarmingly high stakes in an easy Supreme Court voting rights case