What’s Louisiana v. Callais About? Not Louisiana.

Stephen Griffin

Tomorrow the Supreme Court will hear argument in Louisiana v. Callais, a congressional redistricting case brought under section 2 of the Voting Rights Act.  The litigation started as Robinson v. Ardoin, a garden-variety case in which plaintiffs argued and the district court in Baton Rouge found that the state legislature should be required to create a second “opportunity district” in order to facilitate a racial minority (in this case African Americans) electing a representative of their choice.  Many commentators have speculated that the Court will use the case to undermine section 2 or even rule it unconstitutional.

As I live in Louisiana, I wish I had some spicy local knowledge to add to the news coverage.  But in truth Callais is not so much about anything that anyone in Louisiana did wrong.  That the case exists at all should be put down to multiple ill-advised interventions by the Court.  Louisiana v. Callais should thus be retitled Roberts and Rehnquist Courts v. Voting Rights Act.  It is very much the Court’s story.  The story is about how the Court created unnecessary complications for a reasonably straightforward intervention by Congress in 1982 into an untenable situation created by white southerners in defense of their slipping political power.  It’s quite a story and one that is not easily told – which has led to multiple articles by journalists saying somewhat weakly that the case is “complicated.”  It’s not just journalists.  The Court’s insistence on another round of oral argument has confused everyone.  The briefs are all over the map, guessing what might have drawn the Court’s interest.  I advance my own guess at the end of this post.  For now, some exposition.

It is useful to see the VRA as a product of three historical moments (prior to Shelby County, that is).  The first was the original adoption of the law in 1965 under the auspices of the Fifteenth Amendment, aimed largely at removing obstructions to registration and voting by African Americans in the South.  The second was the rise of the “preclearance” mechanism – to be sure, this was in the original law, but its reach was vastly extended by the Court’s 1969 decision in Allen v. Board of Elections.  Henceforth, even redistricting decisions were subject to review by what was, in effect, an administrative agency inside the DOJ devoted to maintaining a voting rights equilibrium with respect to race.  And the third was the rewriting of section 2 in 1982 to, among other things, order courts to focus on the results of what state and local governments were doing to alter electoral laws to frustrate advancing minority political power.  This third moment requires further explanation.

As African Americans began registering and voting in large numbers after 1965, whites responded quickly by changing electoral rules in ways designed to preserve their political power.  A typical example was to move local and county governments from district-based to at-large elections.  Whites did this to preserve their majority voting control over local bodies.  Litigation ensued with the Court announcing a practical test to determine relief in White v. Regester, a formula that influenced Congress when they amended section 2.  But the same Court imposed a roadblock in 1980 in City of Mobile v. Bolden, imposing a difficult “intent” standard on plaintiffs.  Voting rights proponents demanded a solution and, as it happened, the VRA’s key preclearance provisions were up for renewal in 1982, giving them a chance to work around Bolden’s approach.

Litigation in the 1970s was overwhelmingly concentrated at the local level.  If memory serves,  more people were noticing the uncomfortable reality that African Americans in the South, a region where they were so numerous that they were almost a majority in some areas, lacked substantial representation in Congress.  In the 1970s the only members of the Congressional Black Caucus (CBC) from the South were Barbara Jordan (Texas) and Andrew Young (Georgia).  This situation seemed increasingly intolerable, especially considering it was created by what would now be called racial gerrymandering by white state legislatures, themselves gerrymandered to preserve the rule of the dominant majority.

Section 2 was aimed at this problem, but despite compiling a helpful legislative history, Congress ultimately had trouble articulating a standard which district courts could apply.  The Court came up with a workable formula in the key case of Thornburg v. Gingles in 1986.  The so-called Gingles preconditions were added to the “totality of the circumstances” test embodied in section 2.  Plaintiffs had to show they could constitute a compact district in which they would be the majority and that they were subject to racially polarized voting.  Following Gingles, Black representation in Congress from the South and in southern state legislatures increased significantly.  There are still Black representatives in Congress (such as Rep. Bennie Thompson from the Mississippi Delta) who took office in 1993 following the 1990 census, the first redistricting cycle held subject to section 2 and Gingles.  Membership in the CBC expanded dramatically.

Explaining what happened next still vexes scholars.  I like to use technical language to my students in describing the Court’s still infamous 1993 decision in Shaw v. Reno – that the Court freaked out at the increase in Black representation (or, to be more charitable, what was required to achieve it given conflicting goals such as protecting incumbents).  To be more specific, the Court felt that the guidance coming from the DOJ (led by Bush 41 AG Bill Barr!) was too aggressive.  Yet the Court had great trouble articulating a standard for what it termed racial gerrymandering – but it knew it when it saw it.  Just how the Court’s new cause of action was consistent with the obvious thrust of section 2 was never explained.  This led to years of inconclusive litigation, particularly in states like North Carolina – a perfect example of a judicial test causing more trouble than it could ever solve.

The final element in the back story to Callais is a number of recent cases concerning race – certainly Shelby County with its emphasis on the racial past being past, more technical voting rights cases saying in effect that unconstitutional racial motives can be separated easily from permissible partisan motives in drawing district lines, and the Court’s most important recent intervention into the law of race – SFFA, the anti-affirmative action decision.  Taken together, these decisions create doubt around the logic of section 2’s legislative history and the effort by the Court in Gingles to separate cases that meet the “results” test, along with the “totality of the circumstances” factor in section 2 from cases that fall short.  Some commentators have pointed to Justice Kavanaugh’s concurrence in Allen v. Milligan as a danger sign.  This was the latest case to apply section 2 to create a new minority opportunity district in Alabama.  Kavanaugh gestured to the kind of analysis used in Shelby County stressing that the need for legislation responding to the machinations of the white majority may well have passed.  As the briefs filed in Callais have pointed out, however, there is no easy way to attack Gingles and section 2 along this line, as both impose a considerable ongoing burden on plaintiffs.

I suggest one possible answer to the puzzle Callais has posed for commentators and to the question of why the Court has chosen this moment to cast a shadow on section 2 lies in the relationship among these cases.  Taken together, they pose a challenge to the analysis the Court gave in Gingles – especially with respect to the idea of ongoing “racial polarization” and the strong historical emphasis of the totality of the circumstances test.  Lower court opinions on section 2 typically march through a list of “Senate factors” provided by section 2’s legislative history that provide a roadmap for plaintiffs to show how states, in making what appear to be neutral or partisan districting decisions, are in fact carrying forward the tragic legacy of the nation’s racial past.  This is surely related to Shelby County’s objection to the outmoded test for preclearance, but it is distinct.  The tenor of the analysis in SFFA and other cases is that it is wrong to infer that racial inequalities in the present are related to the unconstitutional past.  This may lead the Court to insist in Callais that while section 2 is a constitutional exercise of Congress’s power to enforce the Fifteenth Amendment, it can be squared with these recent cases only by reinterpreting the racial polarization element of the Gingles preconditions and the totality of the circumstances test to rule out an uncritical reliance on history.  This will likely have the same effect as the Court’s recent Brnovich decision, which vitiated the utility of section 2 to challenge vote denial legislation.  In other words, the likely result of Callais will be that plaintiffs will face an impossible burden and state legislatures, particularly in the South, will be free to redistrict without worrying about whether African American citizens need adequate representation.