SCOTUS Seems Ready to Scrap Fair Elections, Greenlight Racial Discrimination and Hand House Control to GOP
After more than two-and-a-half hours of oral argument Wednesday in Callais v. Louisiana, it’s clear that the U.S. Supreme Court’s conservative majority wants to make it much easier for states to get away with racial discrimination in voting.
The six Republican-appointed justices only seemed split on how exactly to handle the constitutional challenge to Section 2 of the Voting Rights Act (VRA) that they set in motion earlier this year when they ordered rare reargument in Callais on whether the state’s use of race in drawing electoral maps to remedy an unconstitutional racial gerrymander itself violated either the 14th or 15th Amendments.
If the court strikes down or significantly weakens Section 2, as looks likely, it would decimate the remainder of one of the most important civil rights laws in U.S. history, and give states carte blanche to draw electoral maps that eviscerate the political power of minority voters.
Such a ruling would also give the GOP a green light to gerrymander aggressively ahead of the 2026 midterm elections, dismantling minority districts held by Democrats — and potentially giving Republicans unassailable control of the House of Representatives for years to come, even after elections where most voters supported Democrats.
The VRA’s judicial dismantling began in 2013, when Chief Justice John Roberts wrote a 5-4 opinion in Shelby County v. Holder striking down the VRA’s “preclearance” provisions, which required certain jurisdictions with discriminatory pasts to get the federal government’s ok before changing election laws. Shelby cleared the way for Southern states to make it harder to vote, often in ways that received relatively little media attention.
The outcome could come down to Roberts and Justice Brett Kavanaugh, who joined the court’s liberals in upholding Section 2 — which prohibits racially discriminatory voting laws — in a similar case two years ago. In his concurrence then, Kavanaugh suggested he was open to a “temporal argument,” like the one used to weaken the VRA in Shelby County.
On Wednesday, Kavanaugh was joined by Justice Amy Coney Barrett in returning repeatedly to the temporality question, suggesting that for a remedy to be “narrowly tailored” enough to survive strict scrutiny, it must somehow be limited in duration.
Justice Ketanji Brown Jackson noted that, unlike the preclearance conditions found suspect in Shelby County, Congress made a violation of Section 2 contingent on current conditions — not past discrimination — and did not set a durational sunset on the provision.
While Roberts didn’t tip his hand with his questioning, the court’s remaining conservatives seemed interested only in figuring out which argument for gutting Section 2 they wanted to endorse, not whether to do so. The lawsuit’s conservative plaintiffs, the state of Louisiana, and the Department of Justice all offered options.
While Louisiana and the plaintiffs both asked the bench to find Section 2 of the VRA unconstitutional, Principal Deputy Solicitor General Hashim Mooppan pushed for merely weakening the law.
Mooppann did his colleagues no favors during a colloquy with Justice Neil Gorsuch, where he characterized their argument as “eliminat[ing] Section 2 entirely,” while arguing that doing so would not reduce Black representation in Congress.
“Just to be fair, they’re not arguing for eliminating Section 2 entirely,” Gorsuch interjected.
The current maps were defended by the NAACP’s Janai Nelson, who noted that Louisiana has never elected a Black person to statewide office. All of Louisiana’s Black members of Congress, all of its Black state justices, and most of its Black state representatives came from “opportunity districts” created to remedy violations of Section 2.
This case began in 2022, when the Louisiana legislature drew a congressional map that packed Black voters in just one of the state’s six districts, even though they make up roughly a third of voters. A group of Black voters sued, leading to a court ordering state lawmakers to redraw the map with two majority-Black districts.
Justice Clarence Thomas seemed preoccupied with that case, Robinson v. Ardoin, focusing his questions for both sides on how the court’s remedy there came as a preliminary injunction, not a final determination.
A group of “non-African American voters,” recruited by anti-VRA activists then sued, arguing that the new map, drawn to fix an unconstitutional racial gerrymander, was itself an unconstitutional racial gerrymander.
Outside the arguments, supporters rallied for the VRA on the steps of the Supreme Court, highlighting the law’s impact on their lives.
“Before we got the map, and up until that time, we had a very unfair system in terms of all services,” Dr. Alice Washington, one of the intervenors in Robinson, told Democracy Docket. “We were an underserved population. Without the fair map, people are not represented, their issues are not addressed and they have no way of getting their needs and issues addressed.”
Another Robinson intervenor, Davonte Lewis, was elected to the Louisiana Public Service Commission — a race he would’ve never won, but for the VRA, he said to Democracy Docket.
“I’m only the third person in Louisiana’s history who is Black to serve on this powerful body representing one-fifth of the state,” Lewis said. “If the court strikes this down, I don’t know what it does for my constituents who finally have a voice in regulating their energy and utility bills. And what that means for our future.”
Under the 14th Amendment, the courts have required that the government can only consider race if it’s done in a “narrowly tailored” manner for a “compelling state interest.” The Supreme Court has held that redressing a racial gerrymander is a pretty compelling reason to redraw an electoral map. In 1986, the court clarified the constraints on using race in remedial mapmaking in Thornburg v. Gingles, which laid out factors for judges to consider.
The conservative justices could “clarify” or “modify” Gingles, as they alternately characterized that argument, in a manner that would implicitly — if not explicitly — require plaintiffs prove that mapmakers intended racial discrimination in order to establish a VRA violation.
As Justice Elena Kagan noted, the Supreme Court already did that once, in a 1980 ruling that Congress responded to two years later by amending Section 2 to explicitly prohibit racial discrimination in effect.
If the court nevertheless insists that intent must be central to a VRA inquiry, then it would be all but nullifying the second part of the 15th Amendment: “Congress shall have power to enforce this article by appropriate legislation.”
Justice Samuel Alito seemed to agree with Mooppan’s arguments that the court’s decision in 2019’s Rucho v. Common Cause — which effectively validated partisan gerrymandering — changes what constitutes a sufficiently constrained racial redistricting in response to a VRA violation. Now that states can argue that their maps were redrawn for nakedly partisan ends like maximizing the number of Republican safe seats, perhaps the Gingles factors need to be updated to incorporate those goals. That could lead to a new requirement for winning a Section 2 claim — that the remedial maps aren’t likely to change an electoral map’s partisan split.
That ruling would clear the way for Republicans to redraw congressional maps across the country, and particularly in the South, to effectively gain 19 new safe U.S. House seats, as a recent analysis by Fair Fight Action and Black Voters Matter determined. On top of the other mid-decade gerrymanders demanded by President Donald Trump, the GOP could net 27 House seats, all but precluding Democrats from winning back control of the House.
Matt Cohen and Maya Bodinson contributed to this report.
