30 Apr Supreme Court Decides Important Voting Rights Case
Yesterday in Louisiana v. Callais, the Supreme Court significantly modified the test courts must use to determine if a claim under §2 of the Voting Rights Act (VRA) for race-based vote dilution may proceed. The Court’s new test reframes the focus to discriminatory intent, separate and apart from any intent to gain a partisan advantage, rather than the prior focus on discriminatory results/impacts.
The majority indicated it was not “abandoning” the test to determine if a legislature has violated §2 of the VRA by diluting minority votes set forth in Thornburg v. Gingles, 478 U.S. 30 (1986), but merely “updating” it. The dissent called the updating “destruction” of the VRA and noted the new test will make success in these suits “nearly impossible.” Whether it was an update or destruction, the test has significantly changed, largely because under the Court’s precedent in Rucho v. Common Cause, 588 U.S. 684 (2019), partisan gerrymandering claims are nonjusticiable. The bottom line is that under the new Callais test, if a map can be explained by the legislature seeking partisan advantage, then that will likely doom a §2 claim.
Background
Section 2 of the VRA, as amended, provides that:
(a) No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color . . . as provided 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. The extent to which members of a protected class have been elected to office in the State or political subdivision is one circumstance which may be considered: Provided, That nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population.
52 U. S. C. §10301(emphasis added).
§2 was amended with the above language after the Supreme Court in Mobile v. Bolden, 466 U.S. 55 (1980) concluded that a plaintiff could only make out a §2 claim by showing the legislature acted with a “discriminatory purpose.” The amendment was seen as a repudiation of the intent test from Bolden, and thereafter, the Court interpreted the amended §2 language to have an “effects” test, which it set forth in Gingles.
Under the original Gingles framework, a plaintiff needed to make four showings to succeed on a §2 vote dilution claim: 1) the minority group is “sufficiently large and [geographically] compact to constitute a majority in a reasonably configured district”; 2) “the minority group must be able to show that it is politically cohesive”; 3) “the minority must be able to demonstrate that the white majority votes sufficiently as a bloc to enable it . . . to defeat the minority’s preferred candidate”; and 4) based on the ‘totality of circumstances,’ that the political process is not ‘equally open’ to minority voters.”
Procedural History
After the 2020 census, Louisiana redrew its congressional districts. While the State’s population was approximately one-third African American, there was only one majority-Black district. A group of African American voters sued and in 2022, a federal judge struck down the map as likely violating §2 of the VRA and ordered the State to draw a new map with a second majority-Black district.
The State complied and that new map with a second majority-Black district was challenged by a group of non-African American voters as a racial gerrymander in violation of the Fourteenth Amendment. A new three-judge panel held the new map violated the Equal Protection Clause and the Supreme Court granted certiorari.
The Supreme Court heard oral argument last term. At the time, Louisiana argued it did not engage in racial gerrymandering, but that it had drawn the new second majority- Black district in a way for partisan advantage that would protect certain incumbents in Congress. In an unusual move, the Supreme Court did not issue a decision last term and instead held the case over for the current term and ordered new arguments on the question of whether “the State’s intentional creation of a second majority-minority congressional district violates” either the 14th Amendment or the 15th Amendment, which bars the government from denying or restricting voting rights based on race.
Holding
In a 6-3 decision authored by Justice Alito, the Supreme Court held that “[c]ompliance with §2, as properly construed, can provide” a compelling reason for race-based districting. However, a §2 claim will only succeed where “evidence supports a strong inference that the State intentionally drew its districts to afford minority voters less opportunity because of their race” and not other nonracial factors (like partisan advantage). That is because §2 of the VRA “was designed to enforce the Constitution— not collide with it.” And in this case, compliance with §2 “could not justify the State’s use of race-based redistricting” and the State’s use of the 2022 map with the second majority-Black district was therefore an unconstitutional racial gerrymander.
The Court explained the “general rule that the Constitution almost never permits the Federal Government or a State to discriminate on the basis of race” and that such discrimination triggers strict scrutiny. The Court has only previously identified two compelling interests that can satisfy that standard: 1) “avoiding imminent and serious risks to human safety in prisons, such as a race riot”; and 2) “remediating specific, identified instances of past discrimination that violated the Constitution or a statute.” The Court concluded that compliance with §2 of the VRA could be added to that very short list of compelling interests that can justify racial discrimination.
With that established, the majority then went on to explain how to properly construe §2 of the VRA, severely limiting its reach in the process. The Court turned to the text of §2 and it noted the “key concept” was the language “less opportunity than other members of the electorate to . . . elect representatives of their choice.” The term “‘opportunity’ must mean a chance to achieve a desired result,” which is “whatever opportunity results from the application of the State’s combination of permissible criteria,” which after Rucho includes partisan advantage. (emphasis added).
The Court underscored that its reading of the text ensured that §2 complied with the Fifteenth Amendment because the Fifteenth Amendment “bars only state action ‘motivated by a discriminatory purpose.’” Therefore, a law that prohibits disparate impact would “fail to enforce a right that the Amendment secures.” The Court reasoned that because §2 was drafted as a result of Congress’ authority to enforce the Fifteenth Amendment, the focus of the statute must be on the “the prohibition of intentional racial discrimination.” The majority noted that this interpretation does not “demand a finding of intentional discrimination,” but liability under the VRA will only arise when there is a “strong inference that intentional discrimination occurred.”
The Court emphasized that §2 does not interfere with States’ ability to draw districts based on nonracial factors, including for partisan advantage. Therefore, to bring a §2 claim, the plaintiff must be able to “disentangle race from politics by proving that the former drove the district’s lines.” And “[i]f either politics or race could explain a district’s contours, the plaintiff has not cleared its bar.”
The majority then explained that its interpretation of §2 required an “update” to the Gingles framework based on several factors including “vast social change” in the country, particularly the South, the existence of a full-blown two-party system, the Court’s Rucho decision, and the use of computers in drawing districts which can control for partisan preferences. Because a state legislature may engage in political gerrymandering after Rucho, the Court explained that litigants cannot circumvent the Rucho decision by “dressing their political-gerrymandering claims in racial garb.”
As a result of these changes, the Court announced a new Gingles framework. To satisfy the first Gingles pre-condition, a plaintiff must provide an alternative map that shows a community of minority voters that is sufficiently numerous and compact such that it constitutes a majority in a reasonably configured district. Under the new framework announced in Callais, this new map cannot use race as a districting criterion and it must “meet all the State’s legitimate districting objectives, including traditional districting criteria and the State’s specified political goals,” which can include partisan advantage.
Next, under the new re-worked Gingles framework, the plaintiff must provide an analysis that controls for party affiliation when it demonstrates the second and third pre-conditions: “politically cohesive voting by the minority and racial-bloc voting by the majority.” In other words, the Court explained, the plaintiff “must show that voters engage in racial bloc voting that cannot be explained by partisan affiliation” in order to “disentangl[e] race and politics.”
And if a plaintiff sets forth evidence that passes those three pre-conditions, for the final “totality of circumstances inquiry” the plaintiff must focus on “present-day intentional racial discrimination regarding voting.” According to the majority, “discrimination that occurred some time ago, as well as present-day disparities that are characterized as the ongoing ‘effects of societal discrimination,’ are entitled to much less weight.”
Turning to the facts of this case, the Court found they “easily require affirmance.” The Court found the State’s goal in the creation of the second majority-minority district was an unconstitutional racial gerrymander. The State could not satisfy the “extraordinarily onerous” strict scrutiny standard because the original plaintiffs in the first suit could not meet the new Gingles standard. For example, the plaintiffs did not provide “an illustrative map that met all the State’s nonracial goals,” including the State’s political goals. And the plaintiffs failed to control for partisan preferences in voting and failed to focus on “current conditions” regarding racial discrimination.
Dissent
The dissent, authored by Justice Kagan (and joined by Justices Sotomayor and Jackson) offered a blistering critique finding the new requirements have “laid the groundwork for the largest reduction in minority representation since the era following Reconstruction.” The dissent accused the majority of making “a nullity of Section 2” and threatening “half-a-century’s worth of gains in voting equality.”
Justice Kagan criticized the majority for claiming it is merely “updating” the Court’s §2 case law, when in the dissent’s view, they have “eviscerate[d]” it. That is because, per the dissent “States now have an automatic political-gerrymandering defense to vote-dilution claims.” The dissent also lambasted the majority for creating a discriminatory purpose/intent test, which the dissent calls directly contrary to the effects-test commanded by Congress when it repudiated Bolden and amended the VRA.