Oral Argument in Callais Signals Uncertainty for the Future of Section 2 of the Voting Rights Act
The Supreme Court recently heard extended oral argument in a case that will address whether race-based redistricting is an appropriate remedy when a state-drawn map is held to violate Section 2 of the Voting Rights Acts. The Court specifically asked the parties to address whether the State’s intentional creation of a second majority-minority district violates the Fourteenth or Fifteenth Amendments.
By way of background, the map Louisiana initially drew after the 2020 census was found to be in violation of Section 2 of the Voting Rights Act. This initial map only contained one majority-Black district out of a possible six in a state where roughly one-third of the population is Black. In response, Louisiana drew a new map in 2024 that contained two majority-Black districts. This map, also known as S.B. 8, has been challenged by a group of non-Black voters who contend the map is the product of unconstitutional racial gerrymandering because it sorts voters based on race, which they contend violates the equal protection clause of the Fourteenth Amendment.
During the argument there were signs that members of the Court are inclined to further limit Section 2 of the Voting Rights Act or at least the remedies available under it. Justice Kavanaugh for example noted that “race-based remedies are permissible for a period of time, sometimes for a long period of time, decades in some cases, but . . . they should not be indefinite and should have an end point.” Chief Justice Roberts indicated that prior related decisions, including the opinion he authored in Allen v. Milligan, “took the existing precedent as a given,” indicating that now the Court may be considering the validity of prior precedents in this area.
Other Justices indicated that the arguments before the Court in this case were rejected in Milligan two years ago. Justice Kagan noted that the arguments being made now were also made by Alabama (the state involved in Milligan) in Milligan and that “it seems to me that you repeated each and every one of those arguments that we rejected.” And Justice Jackson pushed back on the concept of a time limit applying to Section 2 because Section 2 “is not a remedy in and of itself,” but merely “the mechanism by which the law determines whether a remedy is necessary” and that the remedy required may, or may not, involve the consideration of race.
While the outcome remains uncertain, one theme that emerged from the argument is the role of political objectives in redistricting and whether political objectives can serve as sufficient justification to support a particular map drawn by a state even though political objectives can be intertwined with racial issues. Justice Kavanaugh at least viewed considerations of political objectives, i.e., the interest of the political party drawing the map in furthering its own interests, in the analysis as “new.” Justice Kavanaugh appeared to view consideration of this factor as proper given the recent decision in Rucho which supported that a political party’s partisan interests in benefiting itself can serve as a legitimate justification for how a particular map is drawn.
Whatever the outcome, it is likely that the decision will have ripple effects throughout the law of discrimination, in which race-conscious remediation of past discrimination is increasingly in the cross-hairs. For example, in Students for Fair Admissions Inc. v. President & Fellows of Harvard College the Court severely curtailed the use of affirmative action, holding that a student “must be treated based on his or her experiences as an individual — not on the basis of race.” While the Court’s decision in Callais may only address the role of race in the context of Section 2 of the Voting Rights Act, it is likely the decision will provide insight into other areas of law where race plays a role and is considered. Areas such as employment, housing, and lending where race is a factor under Title VII, the Fair Housing Act, and the Equal Credit Opportunity Act.
Callais is one of the many cases Quarles is following on its Merits Review page, monitoring key cases before the Supreme Court this term. Additional updates for this case, and others, will be posted there throughout the year, including analysis of the Court’s ultimate decision in Callais and its broader implications.