The Supreme Court's New, Absurdly Messy Gerrymandering Case, Explained

The Supreme Court announced Monday that it will hear a bizarre dispute between two different federal courts over how to fix Louisiana's racially gerrymandered congressional maps. Under current law, one of these courts was clearly right, while the other was clearly wrong. But because this Supreme Court is often hostile to voting rights plaintiffs, there is some risk that the justices will change the law and allow more racist gerrymanders.

The court will hear this dispute in two consolidated cases, known as Louisiana vs. Callais And Robinson vs. Callais.

In June 2022, Chief Judge Shelly Dick, an Obama appointee to a federal court in Louisiana, found that the state's congressional maps involved illegal racial discrimination. According to the invalid maps, black voters represented a majority in only one of the state's six congressional districts, even though black people make up about a third of Louisiana's population.

Dick ruled that “the appropriate remedy in this context is a remedial congressional redistricting plan that includes an additional majority-black congressional district” — meaning Louisiana must create a new map that includes at least two black-majority districts. Dick's case is known as Robinson vs. Ardoinand Dick is a judge on the U.S. District Court for the Middle District of Louisiana.

Dick's decision was followed by numerous legal battles, including a brief trip to the Supreme Court, but Louisiana's attempts to appeal Dick's ruling ultimately failed. After the Fifth Circuit, the federal appeals court that serves Louisiana, rejected an attempt to overturn Dick's conviction, the state decided to abandon the fight and comply with her order. The state legislature passed a new map that includes two black-majority districts.

But then a completely different federal court, the Western District of Louisiana, decided to intervene in the dispute. A new group of plaintiffs filed suit in the Western District, claiming the new maps were unconstitutional. This case, which became known as Callais vs. Landry While it was before the court, it was assigned to a three-judge panel. Two of those judges — those appointed by former President Donald Trump — agreed with these new plaintiffs that the state's new maps were unconstitutional.

In other words, Louisiana is now subject to two competing court orders. The first, from Judge Dick, prohibits the use of the old maps. The second, from the two Trump judges in the Western District, prohibits the state from using the new maps it issued to comply with Dick's order.

The Supreme Court ruled last May that the state could use its new maps during the 2024 election, temporarily delaying resolution of that dispute. But the long-term situation is clearly untenable. Louisiana needs to be able to draw some sort of congressional maps. And it has to know the rules according to which it has to draw these cards.

This is not possible as long as two entirely separate courts, each of which appears to have completely different views on how racial discrimination disputes should be resolved, are allowed to issue competing court orders.

What does the law actually say about racist gerrymandering in Louisiana?

Under existing law – including the recent Roberts Supreme Court decision in Allen vs. Milligan (2023) – Dick is clearly right and the two Trump justices are clearly wrong about what to do with the Louisiana maps. Among other things Milligan It involved a nearly identical racial gerrymandering dispute from Alabama, and the Supreme Court ordered Alabama to draw a second black congressional district in that case.

But this Supreme Court, with its 6-3 Republican supermajority, is often hostile to voting rights claims — and it is particularly hostile to claims made under the Voting Rights Act, the law Dick relied on in her decision. So while the correct result comes in Callais As the law stands, it is clear that there is always a risk that this court will strike down this law.

In MilliganAlabama effectively asked the Supreme Court to abandon the legal framework for racial crime cases brought under the Voting Rights Act, which the court first announced Thornburg vs. Gingles (1986) and replace it with a new test that would render the law's protections against racial gerrymandering ineffective.

In a 5-4 decision, the court rejected Alabama's request, instead finding that a lower court decision striking down Alabama's racially manipulated maps “faithfully implemented our precedents.” The Gingles Framework that the court confirmed therein Milliganis complex. But it primarily required that Milligan Plaintiffs must show that it was possible to create two geographically “compact” black-majority districts in Alabama and that black and white voters in the state tend to vote in separate blocs.

The Ardoin The case – heard by Judge Dick – is similar in all relevant respects Milligan. Louisiana lawyers previously told the Supreme Court Ardoin “poses the same question” as the one in which the decision was made Milligan. In its ruling against Louisiana, the Fifth Circuit concluded that “most of the State's arguments raised here have been addressed and rejected by the Supreme Court.” Milligan.”

So that should have been the end of this argument. Lawyers who wanted the court to give up Gingles and legalizing the kind of racist gerrymanders originally advanced by the Alabama and Louisiana state legislatures took their case to the justices, and a majority of the justices rejected those arguments in 2023. That probably explains why, after Louisiana lost its appeal to the Fifth Circuit, it decided to abandon that fight and voluntarily draw new maps.

How on earth did the Western District get involved?

To understand how a second federal circuit ultimately invalidated the very maps that Louisiana had enacted to comply with Judge Dick's order, it is important to understand the tensions that have long existed in federal voting rights law.

The 14th Amendment generally prohibits racial discrimination of any kind. Accordingly, the Supreme Court has ruled that this amendment prohibits states from “using race as a predominant factor in determining district boundaries unless there is a compelling reason.” At the same time, the Voting Rights Act sometimes requires states to create a minimum number of electoral districts in which an ethnic minority is a majority. This principle has been reinforced in many cases, including: Gingles And Milligan.

A tension arises between these two principles because if a state knows that it must draw at least two black-majority congressional districts, it cannot truly accomplish that task without taking race into account. To resolve this tension, the court held Cooper v. Harris (2017) that a state can implement “race-based districting” if it has “a strong evidentiary basis” for concluding that it must do so to comply with the Voting Rights Act.

Under cooperA VRA-compliant map is lawful if the state had “good reason” to believe that it would violate the law by not establishing race-based district boundaries.

So, under cooperThe Western District had nothing to do with destroying Louisiana's new map. Louisiana clearly had “good reasons” to believe it needed to draw a new map with two black-majority counties, given a federal court's order to draw a new map with two black-majority counties and the state's attempts to counter Appeals against this decision were unsuccessful.

To avoid that conclusion, the two Trump judges responsible have Callais The decision largely depends on one line Milligan It states that the Voting Rights Act “never requires the adoption of districts that violate traditional redistricting principles.” They argue that the new maps, which were also created to protect multiple Republican incumbents, violate the traditional principle that legislative districts should be compact.

But that's a pretty strained reading Milligan. While the Supreme Court ruled that the VRA does not require Although it called for states to draw ugly districts, the same paragraph also said that redistricting was “primarily the duty and responsibility of the states and not of the federal courts.” So Millligan not forbid States are not allowed to draw ugly, misshapen districts as long as those districts otherwise comply with the Voting Rights Act.

This is worth mentioning Callais falls within the mandatory jurisdiction of the Supreme Court, which means that the justices are obliged to hear this case or at least issue an order to resolve it. So the mere fact that the justices will hear what should be a very simple voting rights case does not mean that they intend to overturn decades of law.

Nevertheless, while the legal principles that should apply in Callais It is crystal clear that it is always concerning when this unpredictable court takes up a case of any kind involving the Voting Rights Act. In MilliganThe court surprised most Supreme Court observers when it voted to maintain longstanding protections against racial gerrymandering. We'll find out soon whether all five judges in the Milligan The majority actually meant what they said in this case.