In oral arguments Monday, the Supreme Court seemed inclined to end the era of racial balkanization of congressional districts. In a case involving Louisiana's running gunfight to establish congressional districts, two members of the majority that created the current mess questioned the role of the courts in adjudicating district boundaries.
After the 2020 redistricting, the Louisiana legislature created a congressional map with only one "minority majority" district. Louisiana has six House seats. One-third of Louisiana is Black, and under existing Supreme Court precedents, it would follow that two seats should be "minority majority," so, naturally, a lawsuit was filed, and the redistricting moved from the State House to the courthouse.
The trial court ordered Louisiana to draw a second majority Black district. The state appealed, and as it was awaiting a hearing by the Fifth Circuit, the Supreme Court decided a case with very similar facts called Allen vs. Milligan. In that case, the Supreme Court threw out Alabama's "race neutral" map and forced the creation of a second predominantly Black congressional district. The decision was 5-4, with Roberts and Kavanaugh crossing over to vote with the three progressives on the court.
BACKGROUND:
Shock-Ruling From SCOTUS Puts Republican House Majority in Jeopardy – RedState
Federal Court Strikes Down Alabama's Redistricting Maps yet Again; What's the End Game? – RedState
That case could've settled the legitimacy of racial gerrymandering but for Chief Justice Roberts and Justice Kavanaugh declining to join one section of the majority opinion. Kavanaugh's dissent was Delphic, but his main points seem to be that for a "minority majority" district to be constitutional, it must be compact and that at some point, the Voting Rights Act bean counting had to end.
Despite Alabama’s apparent confidence in its arguments, it is difficult to know what conclusions to draw from Justice Kavanaugh’s refusal to join Part III-B-1. Because he agreed, in his concurrence, that courts sometimes must account for voters’ race, he likely believes that there is some line between racial consciousness and predominance. And if he thought the district court crossed this line and let race predominate, would he have voted to affirm? Probably not. It seems more plausible that Justice Kavanaugh took issue with Justice Roberts’ reasoning, rather than his ultimate conclusions. Justice Kavanaugh might have been reluctant to endorse the plaintiffs’ experts methodology, the plurality’s approval of “racial targets,” or Roberts’ contention that the dissent misapplied Bethune-Hill.
While it’s impossible to determine why Justice Kavanaugh declined to sign on to the plurality section, he has given Section 2 defendants an opening to exploit what they perceive as gaps between him and the other four justices in the majority. These efforts will go hand in hand with the argument, also invited by Justice Kavanaugh, that Section 2—as currently applied—must sunset. Georgia, defending its congressional and state house maps from a Section 2 challenge, is already contending that race predominates in its plaintiffs’ illustrative maps and that the Voting Rights Act is unconstitutional because its “inherently race-based remedies are not justified by present conditions.” Across the nation, states and local jurisdictions will follow Alabama and Georgia’s lead, further threatening the crown jewel of civil rights laws.
The real effect of Roberts and Kavanaugh refusing to sign onto a full-throated defense of the VRA's racial balkanization requirement was that more challenges, with better facts, were invited.
As that was playing out, the Louisiana situation was looking more and more chaotic with two sets of maps and competing court orders.
A group of Black voters challenged that map, arguing that it diluted the votes of Black residents. A federal court agreed that it likely violated Section 2 of the Voting Rights Act, which prohibits election practices that result in a denial or abridgement of the right to vote. It instructed the state to draw a new map with a second majority-Black district and barred the state from using the existing map.
The U.S. Court of Appeals for the 5th Circuit upheld that ruling and instructed Louisiana to draw a new map by Jan. 15, 2024. Without a new map by then, the court of appeals said, the district court would hold a trial and, if necessary, adopt a map for the 2024 elections.
The legislature drafted a new map, known as S.B. 8, with a second majority-Black district that begins in the northwest corner of the state near Shreveport and stretches 250 miles southeast toward Baton Rouge.
The “non-African American” voters then challenged S.B. 8. A three-judge federal district court ruled that the creation of the second majority-Black district was an unconstitutional racial gerrymander, and it barred the state from using the map in the 2024 elections.
A divided Supreme Court put the three-judge courts’ decision on hold in May, allowing the state to use the map during the 2024 elections, and in November it set the appeal by the state and the Black voters for argument.
That brings us up to Monday's hearing.
Most of the arguments were predictable. The Milligan minority was skeptical of race-based redistricting, while the three leftists were in favor. What was interesting was the direction taken by Chief Justice Roberts and Justice Kavanaugh.
Kavanaugh brought up the expiration of VRA racial gerrymandering requirements, which Roberts raised a decade ago in the decision that struck down Section 5 preclearance requirements under the VRA in Shelby County v. Holder. At one point, he said, "race-based remedial action must have a logical end point." Chief Justice Roberts asked only a few questions, but those were in support of the concerns that the newly created majority Black district seemed created to rope unconnected Black populations together into a single district.
But Chief Justice John Roberts complained that the resulting second majority-Black district was too oddly shaped to pass muster. It “runs from one end of the state to the other,” he said. Stuart Naifeh, representing the Black voters who challenged the 2022 map, insisted that “politics is the only reason” that Louisiana chose the current map. But Roberts questioned this point, “You think race was not the basis for this district,” Roberts said skeptically. It goes from one side of the state to the other, “picking up Black populations.”
As always, predicting how the Supreme Court will vote based on the oral arguments is hazardous. But given the Supreme Court's increasing reluctance to allow race-based policies to stand, I think it is safe to say that the proponents of gerrymandering a second Black district in Louisiana had a bad day.
The importance of this decision, legally and politically, is hard to overstate. As Chief Justice Roberts once said, "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race." So long as we organize our government based on grievance-mongering, activist law firms, and judges will be happy to participate. You don't have to believe that there is no racism in America to think that we've gotten to the point where the cures we are using are much worse than the disease.
Currently, 23 states comprising 41.5 perecnt of the US population live in states with a Republican legislature and Republican governor. A decision in favor of sunsetting VRA requirements would prevent legal assaults of redistricting. That, in turn, would largely remove judges from the redistricting process, which properly belongs to the political branches of government.
