The Supreme Court’s recent decision in Louisiana v. Callais prompted strong reactions, mainly intense criticism on the left. It deals with the controversial subject of racial gerrymandering and the Voting Rights Act (VRA) on which the Court’s jurisprudence is complex and often confusing.
The case is complicated factually, legally, and procedurally. Adding to its perplexity, the majority opinion and dissent have very different takes on the decision’s significance. The majority opinion by Justice Alito claims to be faithful to existing precedents and merely “update” their interpretations of the VRA. Justice Kagen’s fierce 48-page dissent counters that the decision effectively overrules existing precedents and fundamentally changes how the VRA is interpreted and applied, “eviscerating” it in the process.
Despite the confusion, the bottom-line holdings of Callais are clear:
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- The Fourteenth Amendment prohibits race-conscious electoral districting unless required by the VRA to remedy race discrimination.
- The VRA “as properly construed” prohibits only intentional race discrimination in districting and does not reach actions that have discriminatory effects but lack provable racist motives.
- To establish the necessary “strong inference” of intentional race discrimination in districting, challengers must “disentangle” race from all “legitimate” alternative motives, including partisan politics.
- Applying the foregoing principles, the race-based majority-minority electoral district at issue in Callais was not required by the VRA and therefore constituted a racial gerrymander prohibited by the Fourteenth Amendment.
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The decision’s practical consequences are likewise clear. First, since African Americans (and some other minorities) vote heavily Democratic, it’s very challenging to “disentangle” race from politics in modern day gerrymandering. Finding evidence of overt racism is also very difficult in this day and age.[1]Whether this is because racism has in fact receded or just gone underground is debatable. Therefore, it will now be virtually impossible to successfully invoke the VRA to overturn a gerrymander no matter how much it may adversely impact minority voters.
Second, while devaluing the vote of African Americans based on racist motives remains illegal (at least in theory), devaluing their vote based on partisan political considerations is perfectly OK. As the Callais majority puts it, “a minority voter is entitled to nothing less and nothing more” than the same opportunity as any other voter to elect their preferred candidates. Minority voters also share the same opportunity to be victimized by partisan gerrymandering.[2]Partisan gerrymandering may still be limited or outlawed under state law.
Third, the Callais decision severely jeopardizes many current majority-minority House districts and adds considerable fuel to the gerrymandering war that President Trump ignited last year. (More on this below.)
There’s ample room for debate over the legal merits of the Callais decision. All agree that the Fifteenth Amendment, the ultimate source outlawing race discrimination in electoral districting, prohibits only intentional race discrimination.[3]Justice Kagen’s dissent acknowledges this point. But the Fifteenth Amendment authorizes Congress to enforce it by appropriate legislation. That’s what Congress did in the VRA. The VRA seemed to be expanded to reach actions having discriminatory effects under a 1982 amendment and was apparently so viewed in subsequent judicial decisions, including those of the Supreme Court.
Given the above, Justice Kagen makes a convincing case that the Callais majority fundamentally changed rather than just “updated” how the Act is interpreted. The majority opinion does come across as an attempt (perhaps a compromise among the majority justices) to downplay the extent to which it departs from the current understanding of the law.
Nevertheless, the fact that the majority’s explanation may be disingenuous in parts doesn’t necessarily mean its conclusions are wrong. Surely, Congress cannot rewrite the Fifteenth Amendment in the guise of enforcing it. Thus, it’s not unreasonable to maintain that Congress’s enforcement authority operates only within the parameters of the Fifteenth Amendment and doesn’t extend to enlarging the scope of what it prohibits.
Whether one agrees with it or not, the Court’s decision in Callais seems less outrageous from a strict legal viewpoint than the liberal commentariat makes it out to be. But there’s another decision lurking in the background that is truly outrageous: Rucho v. Common Cause, the 5-4 decision in which the Court held that partisan (as opposed to racial) gerrymandering raised political questions that the federal judiciary is unable to resolve. Had the Court done its job in Rucho, the outcome in Callais would be far less concerning. No citizen, minority or majority, should be subject to the pernicious, grossly anti-democratic gerrymandering practices that Rucho effectively condoned.[4]See, e.g., here and here.
The majority’s reasoning in Rucho was exceptionally lame while the dissent, here also written by Justice Kagen, was far more persuasive in every respect. It begins:
“For the first time ever, this Court refuses to remedy a constitutional violation because it thinks the task beyond judicial capabilities.
“And not just any constitutional violation. The partisan gerrymanders in these cases deprived citizens of the most fundamental of their constitutional rights: the rights to participate equally in the political process, to join with others to advance political beliefs, and to choose their political representatives.”
Justice Kagen renews her criticism of Rucho in her Callais dissent. She observes (correctly) that Rucho’s “adverse effects have never been more obvious than today, as this country’s two major parties compete in a race to the bottom.”
The combined effect of Callais and Rucho is sure to supercharge the current gerrymandering frenzy. In fact, it already has. Southern red states are rushing to eliminate majority-minority House districts established under the VRA. Blue states will likely enact retaliatory gerrymanders. Two such states (Colorado and New York) are working to undo their independent redistricting processes so they can join in. Two others (California and Virginia) that already “temporarily” sidestepped their independent processes will probably do so again or simply repeal them.
It’s hard to know which party will come out on top when the dust settles—if it ever does. However, the losers are all too obvious. Millions of Americans of all races, ethic backgrounds, and political leanings will be effectively disenfranchised. Competitive House districts will become even rarer than they are now; extremists in both parties will become even more dominant with primaries the only meaningful election stage; and House members will become even more polarized, reflexively partisan, and less representative of their constituencies as a whole. In short, our politics and governance will sink even lower.
Much of this could have been avoided if the Court hadn’t washed its hands of partisan gerrymandering in Rucho. There’s no way the courts can stamp out gerrymandering completely; politics will always play a role in electoral districting. However, it’s hardly challenging to identify and overturn the blatant, openly acknowledged partisan gerrymanders that are commonplace today. Even the threat of judicial scrutiny would probably be enough to deter many of them.
Sadly, there’s little chance that the Court as now constituted will revisit this issue and “update” Rucho based on current conditions.