Courtesy of the Library of Congress, Prints and Photographs Division, [Reproduction Number LC-DIG-pga-02587].
THE SUPREME COURT EMBRACES THE ENTANGLEMENT OF RACE AND POLITICS AND PULLS REDISTRICTING INTO THE MODERN ERA—Louisiana v. Callais, 608 U.S.___ (2026).
INTRODUCTION
In an earlier edition of this blog, I correctly predicted that Louisiana would prevail and that the cynical and disguised attempt by Voting Rights Act plaintiffs to redistrict House Speaker Mike Johnson, House Majority Leader Steve Scalise, and Appropriations Committee Chair Julia Letlow out of their seats would fail. Louisiana was placed in an impossible position as the result of a challenge by plaintiffs to a new redistricting map passed by the Legislature and which occurred after the 2020 census. A United States District Court ruled that the new map likely violated Section 2 of the Voting Rights Act because it failed to create a new majority-Black district. After appeals stalled, the Legislature created a new map, which it contended harmonized Section 2 requirements (that drove the federal court to essentially force their hand) while combining traditional political goals of protecting the incumbency of the above prominent and influential members of the six-person Louisiana Congressional representatives. A new set of plaintiffs promptly filed suit and contended that race was the predominating factor in the new map—compelled under threat by the other federal court—and obtained a ruling that the new map indeed violated the Equal Protection Clause, as race was used in governmental decision-making. In such an instance, the most rigorous test is applied to review such action—strict scrutiny. Ultimately, the case was granted review by the Supreme Court, and after initial arguments, the case focused more narrowly, and briefing was ordered on a single question that was answered in the Court’s April 29th, 2026, decision:
“Whether the State’s intentional creation of a second majority-minority congressional district violates the Fourteenth or Fifteenth Amendments to the U.S. Constitution.”
The Supreme Court, therefore, had a case before it that involved the intentional creation of a new and second majority-minority district, which had been prompted by a court order suggesting that such district was required by the Voting Rights Act. The Court’s question implicated the correctness of the Court’s longstanding assumption that compliance with the Voting Rights Act may justify what the Constitution generally condemns: the use of race as a basis for government action. The Court, by a 6-3 majority consisting of Justices Alito, the opinion’s author, Roberts, Barrett, Gorsuch, Kavanaugh, and Thomas, answered the question in the negative by holding that:
- Because the Voting Rights Act did not require Louisiana to create an additional majority-minority district, no compelling interest justified the State’s use of race in creating SB8 to overcome strict scrutiny, and that map is an unconstitutional racial gerrymander;
- To establish a violation of Section 2 of the Voting Rights Act, intentional discrimination based upon race established by various factors is required, and a prospective plaintiff bears the burden of disentangling race from permissive objectives in gerrymandering that include incumbent protection, partisan advantage, the avoidance of splitting counties or cities, and other politically permissive objectives;
- Although partisan gerrymandering is controversial, long-standing precedent of the Court establishes that these political processes are generally not justiciable in federal court;
- The focus must be on evidence that has more than a remote bearing on what the Fifteenth Amendment prohibits: present-day intentional racial discrimination regarding voting. Discrimination that occurred some time ago and present-day disparities characterized as ongoing “effects of societal discrimination” are entitled to much less weight. Societal changes suggest that minority engagement in the voting process is significant, and past discrimination and practices have little bearing on a present-day alleged violation.
- In short, Section 2 imposes liability only when the evidence supports a strong inference that the State intentionally drew its districts to afford minority voters less opportunity because of their race. Not only does this interpretation follow from the plain text of Section 2, but it is consistent with the limited authority that the Fifteenth Amendment confers on Congress to enforce its objectives.
BACKGROUND AND OPINION HIGHLIGHTS
Ratified in 1870, the Fifteenth Amendment provides that the “right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.” For many years afterward, however, States heavily suppressed the right of Black citizens to vote. States, mainly in the Democrat-controlled South, employed a variety of notorious methods, including poll taxes, literacy tests, property qualifications, white primaries, and grandfather clauses, to suppress Black voting. Both the Fourteenth and Fifteenth Amendments grant Congress the authority to enact legislation to enforce those provisions. The 1965 Voting Rights Act represented such an exercise of that power, and amendments in the 1970s specifically forbade some of the practices that had been used to suppress Black voting, including literacy tests and poll taxes. A further 1982 amendment to Section 2 of the Act was interpreted in connection with the Court’s ruling and provides:
“(a) No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color . . . as provided in subsection (b).
“(b) A violation of subsection (a) is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. The extent to which members of a protected class have been elected to office in the State or political subdivision is one circumstance which may be considered: Provided, That nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population.” 52 U. S. C. §10301.
The provision requires consideration of the “totality of circumstances” in each case and demands proof that the “political processes leading to nomination or election in the State or political subdivision are not equally open to participation” by members of a protected class “in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.”
The Court interpreted this provision with the following analysis:
For example, the legislature might want to minimize changes in the prior map, avoid districts with discontiguous territory, and avoid splitting counties or municipalities. It might impose a certain standard of compactness, aim to protect some or all incumbents, or promote the prospects of a particular political party. When this algorithm is used, the map it produces may place a particular voter or group of voters in a district in which a majority generally agrees, generally disagrees, or only sometimes agrees with their voting preferences. But in any event, the “opportunity” of these “members of the electorate” to contribute their votes to a winning cause is whatever opportunity results from the application of the State’s combination of permissible criteria. That is what our randomly selected individual voter and group of voters can expect regarding their opportunity to elect a preferred candidate. And under §2, a minority voter is entitled to nothing less and nothing more.
Properly understood, the Court observed, Section 2 does not intrude on States’ prerogative to draw districts based on nonracial factors. Redistricting constitutes a traditional domain of state legislative authority. The Constitution imposes some important restrictions on the States’ exercise of this power, but they are otherwise free to draw districts as they please. The Court previously held that states may use traditional districting factors such as compactness, contiguity, maintaining the integrity of political subdivisions, preserving the core of existing districts, and protecting incumbents. This is exactly what the evidence established was at the core of Louisiana’s deliberative processes in coming up with the new 2020 census-driven map that was ultimately upheld by this decision.
A future plaintiff challenging Section 2 will have to produce a map and evidence which creates an inference of intentional discrimination and, further, disentangles race from permissible politically partisan objectives which are beyond the reach of federal courts to pass upon. The Court firmly established that proof must focus on modern-day discriminatory practices and acknowledged the reality that minority engagement in the political process, writ large, is light years from 1965 and the preceding shameful Jim Crow era. In fact, it is my belief that continued references to past practices makes attainment of a color-blind society elusive and furthers baseless “systemic racism” claims that are more political fundraising strategy grounded in identity politics than a reflection on true civil society in the modern United States. Many cynical and pretextual Section 2 challenges were, and are, partisan political gerrymandering initiatives in racial gerrymandering clothing. This is what occurred in the original Section 2 challenge in Louisiana that would have removed three prominent Republicans from Congress in a thinly disguised Voting Rights claim. The Supreme Court majority, in my opinion, inferred this with the following:
When the vast majority of voters, regardless of race, favors the same political party, a map that is disadvantageous for members of one racial group cannot be explained on the ground that it was drawn to favor a particular political party. But in a State where both parties have substantial support and where race is often correlated with party preference, a litigant can easily exploit Section 2 for partisan purposes by repackaging a partisan-gerrymandering claim as a racial-gerrymandering claim.
This was the case in Louisiana. The Court noted that by 2004, the racial gap in voter registration and turnout in the South had largely disappeared, with minorities registering and voting at levels that sometimes surpassed the majority. Black voters now participate in elections at similar rates as the rest of the electorate, even turning out at higher rates than white voters in two of the five most recent Presidential elections nationwide and in Louisiana. The Court doubled down on its rejection, historically, of race-based state action, and compliance with Section 2 does not sanction state action based predominantly on race and does not, without more, establish a compelling state interest:
Our acceptance of race-based state action has been rare for a reason. Distinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality. And in redistricting, where the State assumes from a group of voters’ race that they think alike, share the same political interests, and will prefer the same candidates at the polls, it engages in racial stereotyping at odds with equal protection mandates.
CONCLUSION
Section 2 of the Voting Rights Act of 1965 was designed to enforce the Constitution—not to endorse and mandate state action based upon race that ultimately collides with it. Unfortunately, lower courts, like the federal court in Louisiana, have sometimes forced States to engage in the very race-based discrimination that the Constitution forbids. These were essentially the opening words in Justice Alito’s opinion for the majority. Far from gutting the Voting Rights Act, as decried by the legacy and alphabet cable media and the predictable dissenting Justices, the Court brought the decades-old and antiquated policy bases for this remedial legislation into the political realities and voting trends of the modern era. In fact, pretextual so-called racial discrimination claims brought under the Voting Rights Act heretofore were nothing more than attempts to establish impermissible proportionality and gain political advantage by removing incumbents who do not share the political objectives of the challengers. Now courts have a workable decisional analysis to streamline such claims and determine if permissible race-neutral political objectives predominate in any census-driven or other redistricting initiatives by the party in power. This was a step forward, not backward. Stand by for the fundraising and hand-wringing in the raucous midterms to come in a scant six months.
Mike Imprevento
April 30th, 2026
