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Much of the reporting on Louisiana v. Callais suggests the court stopped short of finding Section 2 of the Voting Rights Act (which prohibits racial discrimination in voting) unconstitutional. The opinion’s author, Justice Samuel Alito, took great pains to suggest as much. The court, he wrote, was not “abandon[ing]” the prior framework, that, for decades, authoritatively construed Section 2’s sweep. Instead, Alito insisted, Callais was merely an “update” to the evidence required under Section 2 to challenge racial vote dilution – the drawing of electoral districts in a way that divides or submerges minority voting power.
In truth, Callais did something far more extreme: it rewrote the VRA, and in doing so, made vote-dilution claims impossible. Perhaps even more radically, Callais may have turned the Fourteenth Amendment into a tool to undo the legacy of this transformative statute.
In this two-part series, we unpack Callais piece by piece. In Part 1, we describe how Callais eviscerated the VRA’s ability to shield against the dilution of minority voting power. In Part 2, we will explain how the case turns racial gerrymandering claims under the Fourteenth Amendment into a sword against maps enacted to comply with the VRA.
Vote-dilution claims before Callais
The Voting Rights Act of 1965 has been described as the “most important civil rights bill [ever] enacted by Congress.” For our purposes, what is relevant are the 1982 amendments to the act that Congress passed in response to Mobile v. Bolden, which held that the Constitution and the VRA outlawed exclusionary voting practices “only if motivated by a discriminatory purpose.”
The 1982 amendments sought to undo Bolden’s intent requirement. And Congress did so by outlawing voting practices that “result[]” in an abridgement of the right to vote “on account of race or color.” Such a violation occurs if “a class of citizens protected by subsection (a) . . . have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.” Put together, then, Section 2 (as amended) requires that the class of citizens “protected by subsection (a)” – those classified by “race or color” – have an opportunity to elect “representatives of their choice” equal to “other members of the electorate.”
This enacted what others (including the Supreme Court) call a “results” or “effects” test for vote dilution claims. Such a test requires a benchmark relative to which district boundaries dilute minority votes. If a Section 2 plaintiff claims that how a state’s congressional districts are drawn dilutes the number of House representatives that minority voters can elect, we need to know how many representatives they should be able to elect. The amended Section 2 expressly disavows perfect proportionality as a benchmark (for instance, requiring 30% of congressional districts to be majority-Black if 30% of the state is Black). But below that limit, how do we know if district boundaries unlawfully dilute minority electoral opportunity?
Enter Gingles v. Thornburg, the seminal precedent interpreting the 1982 amendments. Gingles operationalized a benchmark for Section 2 cases by laying out a series of “preconditions,” or requirements that VRA plaintiffs must meet to successfully prove racial vote dilution. The first precondition required minority voters to be sufficiently numerous and compact to constitute a “reasonably configured district” without violating “traditional districting criteria.” Traditional districting criteria include principles like compactness (roughly speaking, the shape of the district is not too weird), contiguity (all parts of the district touch; there are no disconnected islands), and the preservation of political subdivisions (keeping towns and counties in the same districts). This first precondition requires plaintiffs to produce an “illustrative map” – a proposed map that demonstrates how minority voters could constitute a majority in a district that is reasonably shaped under these criteria.
The second and third Gingles preconditions asked whether there is (what the court interchangeably called) “racially polarized voting” or “racial bloc voting.” Racial bloc voting exists if “minority group members constitute a politically cohesive unit and [] whites vote sufficiently as a bloc usually to defeat the minority’s preferred candidates.” Another way to think of racial bloc voting is just the presence of some (unspecified) high level of “voting in the districts [that is] racially correlated” – that is, white citizens tend to vote for one type of candidate and Black citizens for another. Finally, after satisfying these preconditions, the final step is an open-ended “totality of the circumstances” inquiry that asks whether the political process is “equally open” to minority voters.
Without these conditions, the shape of the district (and therefore what voters the district encompasses) cannot be responsible for the minority population’s inability to elect candidates of its choice, as opposed to the fact that the group was too geographically dispersed or that the group simply did not have discernible “representatives of their choice.” Suppose that a state wants to disadvantage the political power of Black voters vis-à-vis white voters in a jurisdiction where white and Black voters have the same distribution of political preferences. Even if the Black communities were split across different districts, the electoral outcomes wouldn’t change, because the white voters (with the same preferences) would express the same distribution of votes.
Putting these requirements together, for the past 40 years, the Supreme Court has set the benchmark for vote-dilution claims by (roughly) asking: Is it possible to draw additional districts where minority voters would elect their representative of choice, without violating traditional districting criteria?
How Callais rewrote the Voting Rights Act
With that background in hand, we can now see how Callais contorted this framework beyond recognition to extinguish Section 2’s protections. It did so by issuing two new demands, misleadingly framed as evidentiary requirements.
First, Callais held that “[t]o satisfy the second and third [Gingles] preconditions—politically cohesive voting by the minority and racial-bloc voting by the majority—the plaintiffs must provide an analysis that controls for party affiliation”; they “must show that voters engage in racial bloc voting that cannot be explained by partisan affiliation.” In other words, Alito asks for an analysis of racial bloc voting that “controls for party.” Which is to say, don’t look at whether racial groups have different preferences between parties – look at whether they have different preferences within party. Or put graphically, don’t look at Chart 1 below, look at Chart 2. He claims that this will prove whether racial bloc voting is “explained by” partisanship as opposed to race.
But these evidentiary demands about racial bloc voting either misunderstand or misrepresent Gingles. Recall that Gingles asked whether racial bloc voting was occurring because it was necessary for minorities’ diluted opportunity to elect their preferred candidates to be explained by the map design – how the district boundaries are drawn (rather than, for example, a lack of common political preferences among the minority group). Alito’s majority opinion in Callais now asks what explains racial bloc voting, demanding that plaintiffs show that racial bloc voting is “explained” by race rather than party.
But that demand is nonsensical. As we saw above, racial bloc voting is usually operationalized as white voters preferring one party and Black voters preferring another – a correlation between race and party. It makes no sense to ask whether race or party is more responsible for the correlation between the two. Conditioning the analysis on party does not prove that racial bloc voting is “explained by” partisanship as opposed to race. It just changes what kind of racial bloc voting we are looking at – from inter-party (Chart 1) to intra-party (Chart 2). So, Callais effectively declares that one kind of opportunity for minority voters – the opportunity to elect the party of their choice – cannot be a right secured by the VRA.
Second, Callais demands that plaintiffs’ illustrative maps – the maps that demonstrate a reasonably configured majority-minority district can be drawn – “must meet all the State’s legitimate districting objectives, including traditional districting criteria and the State’s specified political goals.” These “specified political goals” require the plaintiffs to accommodate a state’s preference for “a specific margin of victory for certain incumbents” or a “target partisan distribution of voters.” In other words, if Louisiana wants a 6-0 Republican map that preserves certain incumbents, Section 2 plaintiffs have to create a map that includes an additional majority-minority district – yet still produces that 6-0 result and keeps those incumbents in power.
This demand for illustrative maps that meet a state’s “specified political goals” makes Section 2 claims impossible whenever there is (1) racially polarized voting and (2) partisan gerrymandering. Imagine a state that has drawn all six of its congressional districts to be Republican despite the fact that 30% of its population is Black, and over 90% of that population votes Democratic. In that state, a Section 2 violation is logically impossible because, as Justice Elena Kagan points out in dissent, “[a]ny map with a majority-Black district will not be a map with all Republican seats.”
Alito’s stated basis for “control[ling] for party affiliation” is the court’s 2018 decision in Rucho v. Common Cause, which held that “claims of partisan gerrymandering are not justiciable in federal court.” Alito reads this holding on non-justiciability into an absolute right of paramount importance: the right of state legislatures to engage in partisan gerrymandering. Of course, nothing about Rucho compelled this outcome. Rucho was premised on the supposed lack of a legal standard to adjudicate partisan gerrymandering, because the question – “How much partisan dominance is too much?” – raised a fundamentally political, not legal, question. But in racial vote-dilution claims, there was such a standard: Section 2 of the VRA, as interpreted by Gingles. Therefore, even if we grant that Rucho was correct on justiciability, the VRA question remained – as it has always been – whether states are free to partisan gerrymander in a way that dilutes the opportunity of minority voters to elect representatives of their choice.
Alito says the answer must be yes, because otherwise “litigants can[] circumvent [Rucho] by dressing their political-gerrymandering claims in racial garb.” Alito is correct that any partisan gerrymander will automatically produce a racial gap in electoral opportunity if race and party are “closely correlated.” But Congress knew that race and party were “closely correlated”; that is the very premise upon which they legislated – to grant some measure of political power by race, below which a districting scheme would be called dilutive. Callais thus overrides Congress’ goal – that is, the VRA’s design – in favor of another principle that the court invented: the right to partisan gerrymandering.
Imagine applying that same logic in another context. Take the Religious Freedom Restoration Act of 1993, another so-called effects test that, like the 1982 VRA amendments, Congress passed to override a Supreme Court decision. Specifically, RFRA says that the federal government may not “substantially burden” a person’s exercise of religion even via neutral, generally applicable laws unless it demonstrates that the burden is the least restrictive means of furthering a compelling government interest.
Assume that the federal government passes a rule making people who do not work on Sundays ineligible for Medicaid. Assume that federal courts have held that the government may impose work requirements as a condition of Medicaid. Alito’s logic demands that to establish a RFRA violation we must “control for Sunday work compliance.” After all, the government is free to impose work requirements on any day they choose, just as states are free to gerrymander on the basis of partisanship (by way of non-justiciability). Alito’s rule would hold that there is no RFRA violation if Christians and non-Christians who both refuse to work on Sundays lose Medicaid at equal rates. But that defeats the congressional purpose of RFRA, just as Alito’s alterations to Gingles defeat the congressional purpose of the VRA.
With the VRA, Congress answered the political question that Rucho said courts were not equipped to answer: Partisan gerrymandering is “too much” when it gives minority voters less opportunity than other voters to elect representatives of their choice. A majority of the Supreme Court evidently did not like that answer. But they are only empowered to reject Congress’ answer if it violates the Constitution. And if the court believes that the VRA as written is unconstitutional, they must say that and defend the position on the merits. Here, the court utterly failed to discharge that duty. Callais purports to uphold the VRA while – at every juncture – dismantling it.
