The Supreme Court’s 6–3 decision in Louisiana v. Callais, handed down Wednesday morning, is a big deal. The majority’s decision, though certain to be criticized by progressives, is a major win for those who oppose the balkanization of America into racially defined political blocs.
The case concerns the Voting Rights Act (VRA), Section 2 of which prohibits practices or procedures that deny or abridge the right to vote on the basis of race. For more than a generation, the Supreme Court read Section 2 to require, in certain situations, the drawing of electoral districts to allocate representation to and for racial blocs. At the same time, the Court said that the Constitution forbids the drawing of districts where race “predominated” in the assignment of voters, unless that arrangement could meet strict scrutiny as serving a compelling interest in the least discriminatory way possible. Over that whole time, the Court avoided deciding whether trying to comply with the VRA’s requirements could satisfy strict scrutiny as a “compelling” interest.
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Legal commenters long noted that this created a “Goldilocks” problem, where states too “hot” in their consideration of race violated the Constitution, while those too “cold” in their treatment of same violated the VRA. The resulting muddle made districting law an oddball exception to the nation’s otherwise broadly applicable rules against race-based policymaking.
The Callais majority, led by Justice Samuel Alito, has finally resolved this paradox. It goes back to basics, reiterating the Court’s long-standing holdings that Congress enacted the VRA to enforce the Fifteenth Amendment’s bar of abridgements or denials of the right to vote because of race. That constitutional prohibition has long barred only state actions “motivated by a discriminatory purpose.” The Court then adds the long-standing rule of constitutional law that any congressional enforcement of the Fifteenth (or Fourteenth) Amendment must be congruent and proportional to the set of potential constitutional violations Congress seeks to remedy or prevent.
Building on these premises, the Callais majority holds that Section 2 of the VRA could not constitutionally enforce the Fifteenth Amendment by prohibiting maps based solely on disparate impacts—that is, simply by finding that a map leaves a racial group controlling the election results in fewer districts than its proportion of the population. It adjusts the existing tests—deriving from a 1986 case, Thornburg v. Gingles, and its progeny—to reflect the actual words of the statute and to refocus Section 2 on what the Fifteenth Amendment prohibits: “intentional racial discrimination.”
This doesn’t mean that the VRA demands a finding of intentional discrimination. But under Callais, the VRA imposes liability only “when the circumstances give rise to a strong inference that intentional discrimination occurred.”
The Court rightly—if gingerly—notes that Gingles emerged from “a time when this Court often paid insufficient attention to the language of statutory provisions.” The Gingles Court read Section 2 to apply whenever plaintiffs met a four-part test. They needed to show that: (1) the plaintiff’s racial minority was sufficiently numerous in a compact area to constitute a majority in an additional, reasonably configured district; (2) the minority in that area was politically cohesive; (3) a racial majority bloc-voted sufficiently to defeat its preferred candidates; and (4) the totality of the circumstances reflected a local political process unequally open to the minority’s voters.
Today’s decision uses the actual language of Section 2 to revise and update that test. The first prong remains, but will now specifically require plaintiffs to draw a demonstrative map without basing it on race (if the government couldn’t do so, the fact that one could be so drawn sheds no light on the government’s intent in failing to do so). And, recognizing that governments always have sets of priorities in map-making, many of which are legal—for example, partisan ends, consistency with prior maps, or protecting incumbents—such a demonstrative map will now be required to meet such legal legislative priorities at least as well as the challenged map at issue.
The second and third prongs will now expressly require a disaggregation of racial and partisan influences—with partisan districting perfectly legal, this update will assure that correlations of race and party don’t allow partisan disputes to slip around Rucho v. Common Cause by donning racial drag, in doing so threatening to force judges to intrude on non-judiciable party spats. The Court refocuses the final “totality” prong on current data and conditions.
The bottom line is that the justices have finally set Goldilocks free, by assuring that their interpretation of a statute complies with their interpretation of the constitutional provision that it enforces. Critics are wrongly condemning the Callais ruling as a loss for civil rights. It’s not. It’s a win for legal consistency and a restoration of the equal protection of all Americans under our laws.