WASHINGTON – When Congress passed landmark civil rights legislation in 1965 to stop racial discrimination in voting, only six members of the U.S. House were Black.
Today, there are ten times as many Black lawmakers, a share of the House on par with the total share of Black Americans.
Some of that change is attributed to the 1965 Voting Rights Act, including a provision aimed at giving racial minorities an equal opportunity to participate in the political process and elect candidates of their choice. Section Two of the act tries to prevent legislative map drawers from diluting the votes of minorities by either packing them into one district or spreading them out among too many districts to have an impact.
But that part of the law could be in jeopardy in a case, Louisiana v. Callais, the Supreme Court is scheduled to hear Oct. 15.
The justices will debate whether states can create legislative districts that comply with the Voting Rights Act without violating the bans on racial discrimination in the Fourteenth and Fifteenth Amendments – changes to the Constitution passed after the Civil War to protect the rights of formerly enslaved people.
“This is a law that is designed to enforce the very amendments that the state of Louisiana and these (private) plaintiffs are claiming it violates,” said Marina Jenkins, executive director of the National Democratic Redistricting Committee.
Depending on what the high court decides, the case could be a continuation of the conservative court’s “colorblind” approach to the Constitution that often views consideration of race as discriminatory.
A ruling along those lines could reduce the number of racial minorities in office at all levels of government.
And it could give the GOP an electoral boost, including in efforts to keep control of the closely divided House.
“The stakes are incredibly high,” said Sophia Lin Lakin, director of the ACLU’s voting rights project, who is among the lawyers trying to protect the Voting Rights Act. “The outcome of the case will not only determine the next steps for Louisiana’s congressional map but may also shape the future of redistricting cases nationwide.”
Multi-year battle over Louisiana’s congressional map
The racially and politically charged case – one of the biggest the court will hear this term − grew out of a yearslong battle over Louisiana’s congressional map.
After the 2020 Census, the state legislature created a map that had only one majority-Black district out of six, even though Black people make up about one-third of the population.
A Baton Rouge-based federal district court and the Louisiana-based 5th U.S. Circuit Court of Appeals said it seemed likely that Louisiana could reasonably create a second majority-Black district.
But when the GOP-controlled legislature did so, a divided panel of three federal judges said the new map improperly sorted voters based on race.
The congressman elected from the new district, Rep. Cleo Fields, is a Democrat, and the self-described non-Black voters who challenged the boundary lines argued a “racial quota” cost the state a Republican seat in a narrowly divided Congress.
When the Supreme Court agreed to get involved last term, Louisiana told the Supreme Court the state is in an impossible situation. Louisiana got sued by civil rights groups for violating the Voting Rights Act when the map had only one majority-Black district and sued by White voters for violating the Constitution’s equal protection clause when the map had two majority-Black districts.
Supreme Court could ‘make waves’
Instead of deciding whether Louisiana must try again, the Supreme Court took the rare step of calling for a second round of oral arguments.
This time, they’re focusing on whether the intentional creation of a second majority-minority district is constitutional. The answer to that question could lead to vote dilution protections being stripped from the Voting Rights Act or significantly narrowed.
“The fact that the court decided to hear it a second time suggests they do intend to make waves in this case,” said Mark Miller, an attorney with the libertarian Pacific Legal Foundation.
That’s despite the fact that the court – just two years ago − upheld the section of the Voting Rights Act that’s again being scrutinized.
That 2023 decision, which was about Alabama’s congressional map, surprised court watchers. Two of the court’s conservatives – Chief Justice John Roberts and Justice Brett Kavanaugh – joined with the three liberals to preserve the law.
Irv Gornstein, executive director of the Supreme Court Institute at Georgetown Law Center, said there was speculation at the time that Roberts thought the court should not gut the law’s redistricting protections for minorities in the same term that the court limited the use of race in college admissions.
Time limits for racial discrimination remedies
In the admissions case, Roberts wrote that race-based admissions programs at Harvard and the University of Carolina needed a logical end point.
Similarly, when the court in 2013 struck down a different section of the Voting Rights Act − one used to monitor states with a history of discrimination − Roberts wrote that the restriction was “based on decades-old data and eradicated practices.”
And while Kavanaugh agreed with Roberts and the court’s three liberals in 2023 that Alabama’s congressional map violated the Voting Rights Act, Kavanaugh wrote “the authority to conduct race-based redistricting cannot extend indefinitely into the future.”
Louisiana says law is ‘unworkable and unconstitutional’
Louisiana, which months ago defended the map legislators drew to include two majority-Black districts, now rejects it. The state argues the redistricting protections are “both unworkable and unconstitutional.”
No amount of surgery to the law, the state’s lawyers told the Supreme Court in a written brief, “can eliminate the constitutional defects inherent in a system that, at the end of the day, requires States to sort their citizens by race.”
The Justice Department under President Donald Trump likewise argues that even if the provision was constitutional when it was enacted, it’s not now.
“Current voting conditions cannot justify such excessive consideration of race,” the department’s lawyers told the court in a written brief. “Too often, Section 2 is deployed as a form of electoral race-based affirmative action to undo a State’s constitutional pursuit of political ends.”
Civil rights groups say voting discrimination still exists
Carolyn Shapiro, co-director of Chicago-Kent College of Law’s Institute on the Supreme Court, notes the Voting Rights Act requires an assessment of current conditions.
There must be a majority group large enough and compact enough to make up a district, and White residents have to vote together cohesively enough to defeat a minority group’s candidate. Those conditions can change over time.
“It contains its own sunset provision,” Shapiro said. “And my concern is that the court is so intent on a kind of colorblindness that it won’t take that into account.”
The ACLU, which is representing the Black voters seeking a second majority-Black district, have pointed out to the Supreme Court that a lower court found “significant present-day voting discrimination” in Louisiana, including extreme disparities in access to polling places.
Louisiana has never elected a Black candidate to a statewide office, and the Voting Rights Act is “the only reason that Black voters have any electoral vote,” the ACLU and the NAACP Legal Defense and Education Fund said in its written argument.
Black lawmakers in the state legislature say they have to help Black communities represented by White officials “who are largely unresponsive to their needs.”
“Obstacles to receiving basic government services such as road repair and sewage system maintenance in Black neighborhoods are left unaddressed as white representatives refuse to even visit with Black communities within their districts,” the Louisiana Legislative Black Caucus wrote in a filing.
Decision could supercharge GOP redistricting efforts
Nationwide, more than 80% of the Congressional Black Caucus and of the Congressional Hispanic Caucus are elected from districts that are majority color, according to Spencer Overton, a law professor at George Washington University Law School.
But if the Supreme Court sides with Louisiana – and does so while states still have enough time to react before next year’s elections − that could supercharge the unusual mid-decade redistricting Republicans have spearheaded before the 2026 mid-terms.
Democratic voting rights group estimate that gutting the Voting Rights Act’s protections against vote dilution could help Republicans win an additional 27 House seats − including 19 that would directly result from invalidating the law’s protections.
“It’s enough,” a report from Fair Fight Action and Black Voters Matter Fund concludes, “to cement one-party control of the U.S. House for at least a generation.”
