The authors of the Reconstruction Amendments did not trust the Supreme Court to ensure that Black Americans would be able to participate fully in the political life of the nation. That is why the amendments expressly gave Congress the power to enforce their provisions through additional legislation.
It took nearly a century, but as part of the Second Reconstruction, Congress fulfilled that responsibility. It enacted a Voting Rights Act that goes beyond merely restating the constitutional prohibitions contained in the first sections of the Fourteenth and Fifteenth Amendments. The single most important contribution the Court ever made to minority citizens’ voting rights was to uphold and apply those congressionally expanded prohibitions.
The current Supreme Court thinks differently. Section 2, as amended by Congress in 1982, was designed, and had been read for decades, to bar not only intentional discrimination but also practices and procedures that resulted in minority voters having less opportunity to elect representatives of their choice. (That “results” language, after all, is what the text explicitly provided.) In Louisiana v. Callais, the Court returned amended section 2 of the Voting Rights Act to a mere restatement of the constitutional prohibition on purposeful vote dilution. We are only just beginning to see how Justice Samuel Alito’s disingenuous opinion for the Court threatens to dismantle a fundamental pillar of the Second Reconstruction.
Callais involved the complex interaction of three strands of the Court’s districting jurisprudence: racial vote dilution claims under section 2 that the way district lines were drawn unfairly minimizes a minority group’s ability to elect; now-nonjusticiable claims that the lines are an unconstitutional political gerrymander; and so-called Shaw claims that race played an excessive role in the construction of district lines. Justice Alito wrote for the six-justice majority; Justice Elena Kagan wrote a dissent, which was joined by Justices Sonia Sotomayor and Ketanji Brown Jackson.
Initially, Louisiana (whose population is roughly one third Black) redrew its six congressional districts after the 2020 census in a way that created one majority-Black district and five majority-white ones. (The majority-Black district is the successor to a district the State was forced to draw in the mid-1980s following one of the first lawsuits successfully litigated under amended section 2.) A group of Black plaintiffs sued, claiming that the refusal to draw a second majority-Black district constituted unlawful racial vote dilution under section 2. After a district court held that they were likely to prevail, Louisiana redrew its map to create a second majority-Black district. The configuration of the revised map was driven by political considerations—in particular, the desire to protect three powerful Republican incumbents. A different group of plaintiffs—the Callais plaintiffs—then sued, claiming the state’s new map was an impermissible racial gerrymander. (This Shaw claim did not require them to allege or prove any dilution of their votes.) On reargument before the Court, Louisiana did not defend its map. Rather, it sought to return to its 5-1 plan. The Court ultimately agreed that “the State’s underlying goal was racial”—to create a second majority-Black district. The Court held that the map could not survive strict scrutiny under the Fourteenth Amendment given that section 2 of the Voting Rights Act, properly construed, did not require the creation of a second majority-Black district.
So let’s look at how the Court construed amended section 2.
Justice Alito conceded, as he must, that amended section 2 was a congressional response to (and rejection of) the Court’s decision in City of Mobile v. Bolden, which had held that section 2 of the Act in its initial form prohibited only purposeful racial vote dilution. Congress amended section 2 to impose a “results” standard: Under section 2(b), a voting practice or procedure violates that standard “if, based on the totality of circumstances,” members of a racial minority group “have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.”
Justice Alito stated that this language “sets a baseline against which to assess the opportunity of minority voters” and that “the baseline is the chance enjoyed by nonminority voters to secure the election of their preferred candidates.”
But it doesn’t make sense to frame the baseline that way. By definition, in any jurisdiction where minority plaintiffs bring a section 2 claim, there are some nonminority “other members of the electorate,” to use section 2(b)’s language, who have the chance to elect their preferred candidate. (Otherwise the elected positions would be vacant.) And there are also of course some nonminority voters whose chance of electing their preferred candidate is nonexistent. To which group ought minority voters be compared?
The more sensible place to begin is with one of the key “circumstances,” to deploy another word from the statutory text, when it comes to vote dilution cases: American elections are conducted from geographically defined constituencies. We should therefore begin by asking whether the minority’s reduced voting power is in some way attributable to the current configuration of those constituencies. Thus, in Thornburg v. Gingles, the foundational section 2 vote-dilution decision, the Supreme Court offered a three-part framework whose first prong asks whether there is an alternative to the challenged scheme that would give minority voters an opportunity to elect: Is the minority group sufficiently numerous and geographically concentrated that it could form a majority of the electorate in a fairly drawn single-member district? If the plaintiffs establish this first element, then the section 2 inquiry can proceed through the other two prongs of the Gingles test to determine whether racially polarized voting is preventing minority voters from succeeding within the existing scheme, before turning to whether, under the totality of the circumstances, the political process is not equally open to minority citizens. In short, the initial comparator is the current configuration of districts versus an illustrative district.
Callais replaces that straightforward inquiry with one that focuses from the outset on the chances white voters enjoy. It then cunningly defines that chance as being “whatever opportunity results from the application of the State’s combination of permissible criteria.”
That allows the Court to hold, under a purported “update” and “realign[ment]” of the Gingles framework, that a defendant jurisdiction can deny minority voters an opportunity to elect representatives of their choice as long as it also denies that opportunity to some group of white voters who share a salient characteristic with the minority voters. To be more specific, states can deny minority voters any chance to elect candidates of their choice whenever minority voters prefer candidates who are Democrats as long as the State creates no majority-white Democratic districts. Indeed, the implications are more radical still: Protection of incumbents is apparently also a permissible basis for drawing district lines. Thus, in any jurisdiction where minority voters have not already succeeded in electing a representative of their choice, they can be locked into electoral impotence. They cannot effectively challenge the existing system because they will be unable to show that they can create an opportunity district without removing an incumbent. And when it comes to local offices, the Court’s analysis creates a roadblock to challenging at-large elections, since by definition any section 2 suit seeks a change to the jurisdiction’s current election criteria.
More fundamentally, to call rank partisanship a permissible criterion marks a sea change in the Court’s approach. Less than two years before Justice Alito joined the Court, all nine Justices then sitting agreed that severe partisan gerrymandering is incompatible with constitutional values and likely unlawful; they disagreed only over whether this constitutional violation was justiciable. In Rucho v. Common Cause, the Court again reiterated the incompatibility of partisan gerrymandering with democratic principles, even as it held such challenges nonjusticiable. But in Alexander v. South Carolina State Conference of the NAACP, Justice Alito treated South Carolina’s partisan desire to disadvantage a group of voters not as regrettable, but as evidence of legislative “good faith.” And in Callais, he declared that partisanship is “a constitutionally permissible criterion that States may rely on as desired.”
The Court’s insistence that partisan motivations defeat a section 2 results claim makes it unlikely that plaintiffs can ever prevail in challenging a districting plan involving partisan elections, since partisanship (or, at the very least, incumbent protection) will nearly always be one consideration. Or as Justice Kagan phrased it in her powerful dissent, “Bang, bang, bang. It is like shooting fish in a barrel.” That presumably leaves available the possibility that plaintiffs can establish liability under section 2 only by proving a racially discriminatory purpose. (And perhaps they will have to show, in mixed-motive cases where both racial and political purposes are at play, that the jurisdiction would have adopted the plan even absent any political considerations—a near-impossible task.) Justice Alito comes close to saying just that when he wrote that a court can find a section 2 violation “only when the circumstances give rise to a strong inference that intentional discrimination occurred.” The Court’s statement that this “does not demand a finding of intentional discrimination” seems only to mean that a district court can make an “inference of racial motivation” without using magic words to announce “whether the state legislature as an institution” was motivated by racial concerns. How a reviewing court is then supposed to decide whether to affirm a finding of liability that stops short of that final step is nowhere explained.
This too marks a doctrinal sea change. Justice Alito cited City of Boerne v. Flores for the proposition that “a law that seeks to enforce the Fifteenth Amendment by prohibiting mere disparate impact would fail to enforce a right that the Amendment secures.” But that is not what Boerne says. To the contrary, the Court there expressly stated that legislation “can fall within the sweep of Congress’ enforcement power even if in the process it prohibits conduct which is not itself unconstitutional.” And an example it gave was Congress’s decision in the Voting Rights Act to ban literacy tests nationwide despite the fact that the Court had previously upheld North Carolina’s test on the ground that such tests were constitutional unless it was shown that they had been adopted for the purpose of excluding Black citizens. And in earlier decisions, the Court had recognized that prohibiting disparate impact can be an appropriate way to capture purposeful discrimination given the difficulty in proving a discriminatory motivation.
It was entirely foreseeable that the Court’s decision in Callais would set off a series of attempts by states under Republican control to eliminate majority-Black and -Latino districts even before the Court took the extraordinary step of issuing its mandate immediately, so as to enable Louisiana to eliminate its second majority-Black district although the primary election was already underway with mail ballots having been sent out and returned. So Callais marked not only the gutting of section 2 but also a rollback of the Purcell principle, which directs federal courts to hesitate before altering the legal landscape close to an election.
In short order, Louisiana adopted a plan that eliminated the second majority-Black district. Alabama and Tennessee also adopted new plans for this fall’s election. Georgia, Mississippi, and South Carolina may follow suit for the next election cycle. And Texas and Florida may be emboldened to tweak their maps even more.
In a June 2 per curium order, with a 6-3 vote breaking down on the same lines as Callais, the Court applied Callais to uphold the Alabama legislature’s 2023 map, which (unlike the remedial map the federal court adopted after finding that Alabama’s 2021 map violated section 2) failed to draw a second majority-Black district. The Court’s analysis shows that its “update” of Gingles goes far beyond its treatment of the three-part framework. In Gingles, the Court had reaffirmed that a finding of a racially discriminatory purpose in a vote-dilution case is a finding of fact that “must not be set aside unless clearly erroneous, and the reviewing court must give due regard to the trial court’s opportunity to judge the witnesses’ credibility.” The three-judge court in Alabama found that the 2023 plan Alabama proposes to use for the 2026 election was intentionally discriminatory. “[T]ry as we might,” that court wrote, “we cannot understand the 2023 Plan as anything other than an intentional effort to dilute Black Alabamians’ voting strength.”
The court pointed to a series of subsidiary facts supporting this determination. One telling example: as part of the 2023 plan, the legislature enacted a series of “findings” that reflected a commitment to providing a majority-white Gulf Coast community, described in terms of its “French and Spanish colonial heritage,” with a district, while not discussing at all “the majority-Black community of interest in the Black Belt, which shares a heritage of enslavement.” Moreover, the Alabama court squarely “reject[ed]” any argument that “partisan goals rather than racial animus motivated the 2023 Plan.”
After the Supreme Court directed it to reconsider that holding in light of Callais, the Alabama court reaffirmed its finding: “[T]he purpose of the 2023 Plan was to distribute Black voters across districts to dilute their votes, at least in part because they are Black. . . . We reach this conclusion with great reluctance and dismay and even greater restraint — only after another exhaustive analysis of an extensive record, as the Supreme Court’s remand order and its precedent instructs us. We reject in the strongest possible terms the State’s attempt to finish its intentional decision to dilute minority votes with a veneer of legislative regularity.”
Under any principled application of the clearly erroneous standard, the Supreme Court would not have overturned this finding, which involved precisely the kind of “intensely local appraisal of the design and impact” of the challenged plan by a court having “particular familiarity with the indigenous political reality” of Alabama that used to produce an affirmance. Instead, late at night and again by a 6-3 vote, the Court allowed Alabama to put into effect the new plan for the already-underway 2026 election.
And those congressional maps are only the beginning. We should expect to see the dismantling of state legislative districts as well. To the extent that the Voting Rights Act served as at least a minimal constraint on political gerrymandering, that constraint is gone. In tandem with Rucho’s elimination of the deterrent effect on the most egregious gerrymanders that the possibility of Supreme Court intervention used to provide, the post 2030 round of redistricting is likely to be exceptionally bloodthirsty.
A half-century ago, the Supreme Court declared that “[t]he very essence of districting is to produce a different—a more ‘politically fair’—result than would be reached with elections at large, in which the winning party would take 100% of the legislative seats.” That essence was the impetus behind Congress’s decision in 1842 to require states to use single-member districts to elect their Representatives. Before that, many states elected their House delegations through statewide elections. This produced many one-party delegations. For example, in the 11th Congress, Connecticut elected seven Federalists and no Republicans, while New Jersey elected six Republicans and no Federalists. In the 26th Congress (the last one before the 1842 act), Georgia elected nine Whigs and no Democrats while New Hampshire elected five Democrats and no Whigs. The current Court seems completely comfortable that we might return to the days in which states create winner-take-all congressional delegations. That situation could only exacerbate the pathologies of our current politics. And if it results in monoracial as well as single-party delegations from southern states, it threatens to end the Second Reconstruction as well.
