Democratic voting rights groups worry that it could give states the freedom to redraw their congressional boundaries in a way that helps Republicans maintain a majority in the U.S. House of Representatives.
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WASHINGTON – In 1965, when Congress passed the landmark civil rights law to prevent racial discrimination in voting, there were only six black members of the U.S. House of Representatives.
Currently, there are 10 times as many black members of Congress, and their share of the House of Representatives is equal to that of all black Americans.
Part of that change can be attributed to the Voting Rights Act of 1965, which included provisions aimed at giving racial minorities an equal opportunity to participate in the political process and elect candidates of their choice. Section 2 of the law is intended to prevent Congressional mapmakers from diluting minority votes by stuffing them into one district or spreading them across too many districts to have any impact.
But that part of the law could be in jeopardy in the case of Louisiana v. Calais, scheduled to be heard by the Supreme Court on October 15th.
The justices will debate whether states can create congressional districts consistent with the Voting Rights Act without violating the anti-discrimination clauses of the 14th and 15th Amendments, amendments passed after the Civil War to protect the rights of former slaves.
“This is a law designed to enforce the very amendments that the state of Louisiana and these[private]plaintiffs claim are being violated,” said Marina Jenkins, executive director of the National Democratic Redistricting Committee.
Depending on the high court’s decision, the case could be a continuation of the conservative court’s “colorblind” approach to the Constitution, which often views racial considerations as discriminatory.
A ruling along these lines could reduce the number of racial minorities holding public office at all levels of government.
And that could boost Republican elections, including efforts to maintain control of the closely divided House.
“The stakes are incredibly high,” said Sophia Lynn Lakin, director of the ACLU’s Voting Rights Project, one of the lawyers trying to protect the Voting Rights Act. “The outcome of this case will not only determine the next steps for Louisiana’s congressional maps, but could also shape the future of case redistricting nationwide.”
Year-long battle over Louisiana’s congressional map
The racially and politically charged case is one of the largest to be heard in this court and stems from a years-long battle over Louisiana’s congressional map.
After the 2020 Census, the state Legislature created a map that showed only one of the six districts was majority black, even though black people make up about one-third of the population.
The Baton Rouge-based U.S. District Court and the Louisiana-based 5th Circuit Court of Appeals said Louisiana could reasonably create a second-majority black district.
But as the Republican-led Congress did so, a divided panel of three federal judges argued that the new maps improperly categorized voters based on race.
The new district’s representative, Cleo Fields, is a Democrat, and self-identified non-black voters who objected to the boundaries argued that “racial quotas” would force the state to lose seats to Republicans in the narrowly contested Congress.
When the Supreme Court agreed to early intervention, Louisiana told the court the state was in an impossible situation. Louisiana was sued by civil rights groups for violating the Voting Rights Act when the map had only one majority-black district, and by white voters for violating the Constitution’s Equal Protection Clause when the map had two majority-black districts.
Supreme Court could ’cause ripples’
The Supreme Court took the unusual step of calling a second round of oral arguments instead of deciding whether Louisiana must rehear the case.
This time, the focus is on whether it is constitutional to intentionally create secondary electoral districts for majorities and minorities. The answer to this question could mean that vote dilution protections from the Voting Rights Act would be stripped or significantly reduced.
“The fact that the court decided to try it a second time suggests they intend to make waves with this case,” said Mark Miller, an attorney with the liberal group Pacific Legal Foundation.
That’s despite the fact that just two years ago, the court upheld a provision of the Voting Rights Act that was once again under scrutiny.
Its 2023 ruling on Alabama’s congressional map surprised court watchers. Two of the court’s conservatives, Chief Justice John Roberts and Justice Brett Kavanaugh, joined the three liberals in defending the law.
Irv Gornstein, executive director of the Supreme Court Institute at Georgetown Law Center, said there was speculation at the time that Roberts believed the court should not water down redistricting protections for minorities in the same way it limits the use of race in college admissions.
Deadline for racial discrimination relief
On admissions, Roberts wrote that Harvard and Carolina’s race-based admissions programs need a logical endpoint.
Similarly, when the court struck down another provision of the Voting Rights Act in 2013, one that monitored states with a history of discrimination, Roberts wrote that the restrictions were “based on decades-old data and eradicated practices.”
And while Kavanaugh agreed with Roberts and the court’s three liberals that Alabama’s 2023 congressional map violates the Voting Rights Act, he wrote that “the power to implement race-based redistricting cannot be extended indefinitely into the future.”
Louisiana says law is ‘unenforceable and unconstitutional’
Months ago, Louisiana defended maps drawn by lawmakers to include two majority-black districts, but now they are rejecting them. The state argues that the redistricting protections are “unworkable and unconstitutional.”
No amount of changes to the law will “ultimately eliminate the constitutional flaws inherent in a system that requires states to classify their citizens by race,” state lawyers wrote in a brief to the Supreme Court.
President Donald Trump’s Justice Department has similarly argued that even though the provision was constitutional when it was enacted, it is not now.
“The current voting situation does not justify undue consideration of race,” lawyers for the department told the court in briefs. “Too often, Section 2 is deployed as a form of affirmative action based on electoral race to override a state’s pursuit of constitutional political objectives.”
Civil rights groups say voting discrimination still exists
Carolyn Shapiro, co-director of the Supreme Court Institute at Chicago-Kent Law School, said the Voting Rights Act requires an assessment of the current state of affairs.
There must be a sufficiently large and compact majority to constitute a district, and white residents must vote with enough unity to defeat a minority candidate. These conditions may change over time.
“It has its own sunset clause,” Shapiro said. “And my concern is that the courts are so focused on a type of colorblindness that they don’t take that into account.”
The ACLU, which represents Black voters seeking a second majority Black district, told the Supreme Court that lower courts had found “contemporary serious voting discrimination” in Louisiana, including extreme disparities in access to polling places.
Louisiana has never elected a black candidate to statewide office, and the Voting Rights Act is “the only reason black voters have the right to vote,” the ACLU and the NAACP Legal Defense and Educational Fund said in written arguments.
Black members of the state Legislature say they must support black communities represented by white officials who “do little to address their needs.”
“The refusal of white legislators to even visit Black communities in their districts leaves black neighborhoods without access to basic government services, such as road repairs and sewer maintenance,” the Louisiana Legislative Black Caucus said in a filing.
The decision could accelerate Republican redistricting efforts.
Nationally, more than 80% of Congressional Black Caucus members and Hispanic members of Congress come from districts with a majority of people of color, said Spencer Overton, a law professor at George Washington University School of Law.
But if the Supreme Court sides with Louisiana, and it does so while there is still plenty of time for states to act before next year’s elections, it could further accelerate the power of the Republican Party, which has led an unusual mid-decade redistricting effort ahead of the 2026 midterm elections.
Democratic voting rights groups estimate that defeating the Voting Rights Act’s protections against voter dilution could help Republicans pick up 27 additional seats. Of these, 19 seats would be gained directly by repealing protections under the Act.
A report by Fair Fight Action and the Black Voters Affairs Fund concluded that “this is enough to cement one-party control of the U.S. House of Representatives for at least a generation.”
