Walter Olson
In today’s decision in Louisiana v. Callais, split 6–3 on ideological lines, the Supreme Court has sharply narrowed the extent to which it will permit the use of racially conscious line-drawing under the Voting Rights Act. That aligns the Court’s vision on voting rights with its move in recent years to reject race-conscious government action in areas such as university admissions, and, in fact, Justice Samuel Alito’s opinion cites the Court’s Students for Fair Admissions decision.
While the Court has long been headed in this direction as a matter of principle, it has not always spoken or acted clearly. Today’s decision removes the doubt.
In practice, the Court’s existing rules have been widely interpreted as blessing the purposeful creation of majority-minority districts where such can be done without doing obvious violence to traditional districting principles by, for example, drawing a district that is eighty miles long and five miles wide.
At the same time, Justice Elena Kagan’s dissent for the three liberals outlines two possible practical outcomes that we should take seriously. First, line-drawers may find it easy to conceal race-conscious motives from legal scrutiny. The Court today holds that liability applies only when circumstances give rise to a strong inference of intentional discrimination.
This, in turn, interacts disturbingly with the second practical problem Kagan points out: how it combines with the Court’s go-ahead for partisan political gerrymandering. Across much of the country, partisan voting patterns correlate strongly with race. A Republican map drawn to push down Democratic Party representation as close to zero as possible—as the Court has ruled to be proper—might well involve algorithms that break up some minority-majority districts that would emerge neutrally and impartially from geography. Likewise, a Democratic-drawn gerrymander intended to wipe out Republican representation, which could manipulate voters along racial lines in different but also objectionable ways.
Such problems would be easier to negotiate in a country that enjoyed impartial civic norms of good governance and low polarization. They are likely to prove difficult in the America we have right now.