Supreme Court seems likely to limit race-based electoral districts under Voting Rights Act

Murrill pointed out that this is not the first time congressional maps in the state have been legally fraught.

“We’ve said all along that you have to look at how the population is distributed and look at how maps can be done legally and constitutionally,” said Murrill, who added that was the basis on which they defended the initial map passed by the Legislature, which had five majority-white districts. “I think we’ve been over and over this argument about proportionality. Proportionality is not the test.”

Murrill said that she believes Louisiana’s case to be a “good vehicle for illustrating the Court’s jurisprudence in this area” and the “very vague” terms and tests “that have been created that just ensure that we are going to be bogged down in litigation.”

“We are damned if do and damned if we don’t,” Murrill said.

Louisiana Attorney General Liz Murrill called on the high court to create a “workable system” and “fix” the map-drawing process that she believes they broke to begin with.

“Our Legislature has been acting in good faith… in trying to comply with both the Voting Rights Act and the court’s jurisprudence. But it is an impossible task,” Murrill told reporters.

The Republican said during the oral arguments that she saw from Supreme Court Justices was confusion and argued that “you ought to see how confusing it is for the legislators” tasked with crafting the map.

“The length and scope of questioning that we saw today shows that level of confusion that has been created by the court’s precedent in this area,” Murrill said.

Outside of the Supreme Court building, Janai Nelson says the court “asked some challenging questions” but she’s confident the law is on the side of the Black Louisiana voters she represented.

“We feel confident if the court relies on its precedent, if it continues to have a commitment to the 15th Amendment and this project of a multiracial democracy it will rule on our favor,” she said, praising the plaintiffs’ “will and spirit and courage.”

The inside of the courtroom was staid for much of the hearing with the liberal justices all clearly defending the continued existence of Section 2. Justice Ketanji Brown Jackson was the most animated of the justices, when she questioned Edward Greim, the attorney for the current plaintiffs and asked if the standard for bringing voting rights cases would be to show “intentional” racial discrimination.

At one point she began explaining how the discussion of maps don’t take into account the race-based residential patterns that still determine where Black residents live in Louisiana.

Justice Elena Kagan also brought back the full ramifications of this case when she said it was “not a Shelby County thing” in speaking about how voting access has changed. “Section 2 is about the effects of discrimination.”

Downplaying the catastrophic political consequences that civil rights groups have predicted if the Supreme Court guts Section 2, Mooppan, the deputy solicitor general, told the court Wednesday that only 15 of the 60 Black members of the House represent Black-majority districts.

“We’re not even urging Section 2 to be eliminated,” Mooppan said. “But even if you eliminated Section 2 entirely, fully 75% of the Black congressmen in this country are in districts that are not protected by Section 2.”

Mooppan’s figures could not immediately be verified.

Arguments have wrapped up after more than two hours. The court is expected to rule by June, the traditional end of its term.

The justices can issue rulings whenever they are complete, however. The timing of a ruling could matter – if it is in favor of Louisiana, an earlier ruling could have a bigger impact on the midterms elections.

The Trump administration has completed its arguments. Nelson is now giving rebuttal on behalf of Louisiana Black voters.

“Louisiana is emblematic of the ongoing need for Section 2,” she said.

Questioning Mooppan about the future impacts the court’s decision in this case could have, Gorsuch said he felt somewhat like “outrunning a bear.”

The justice was making a point about potential implications of making a decision that could have future complications in other cases.

When Mooppan referenced some of the court’s prior acts he said were on point in this case, Gorsuch’s response prompted light laughter in the court: “I know what it said. I just don’t know what it means.”

Liberal justices are grilling Edward Greim, with Elena Kagan and Ketanji Brown Jackson tag-teaming the lawyer for Phillip Callais and white Louisiana voters.

Kagan is pressing Greim on her contention that there is racial discrimination in Louisiana’s redistricting maps.

She continues, suggesting “to prove a Section 2 violation, you have to show that the current conditions – not some old conditions that happened in 1962 or in 1982 – but the current conditions are such that there’s no equal opportunity for African American voters or some other group because there’s racially blocked voting.”

“There’s a there, there,” she says. “That African Americans can’t elect candidates of their choice.”

After Greim suggests that the discrimination is not intentional, Brown jumped in, challenging him on the view that Section 2 must remedy intentional discrimination.

“Is your suggestion that the only thing that’s worthy of remedying is the intentional discrimination by the state?” she says emphatically.

“I don’t understand why it matters whether or not the state intended to do that,” Jackson says. “What Congress is saying is, ‘If it is happening … you’ve got to fix it.”

One factor courts consider in deciding whether states need to re-draw their maps is whether people tend to vote together, referred to the trend as “racially polarized voting.”

It’s part of how judges decide whether minority voters can cast their ballots for a candidate of their choice.

Mooppan argues that Louisiana voters didn’t have big differences by race, so the districts were drawn instead with politics in mind – something the Supreme Court has said is fine.

The attorney for white voters in Louisiana has finished, and Hashim Mooppan, principal deputy U.S. Solicitor General, is now arguing for the U.S.

In an animated discussion to close up Aguiñaga’s arguments, Jackson asked him to specify where in Section 2 another minority district was laid out as a potential solution.

As the Louisiana solicitor general repeatedly referenced prior court interpretation of Section 2 as seeking to settle matters of “racial injustice,” Jackson interjected to note that such cases were “so tied up with race because that’s the initial problem.”

“It is a separate question as to how we go about remedying that, and the extent to which we need to use race as a remedy,” she added. “That’s the question we’re here on today.”

Up next is attorney Edward Greim for Phillip Callais and other white Louisiana voters.

Kavanaugh comes back to the question of whether the country might come to a point where it no longer needs to take race into account when drawing voting districts.

This time, though, he’s asking the state.

Aguiñaga, the Louisiana solicitor general, essentially argues that we’re there already: “I think the warning bells have been sounding for decades, and I think that’s a long enough notice for anybody involved.”

U.S. Rep. Troy Carter, one of two Black Democrats representing Louisiana in Congress, stressed the seriousness of Wednesday’s U.S. Supreme Court hearing over the state’s redrawn congressional map. The congressman said that what’s at stake is “nothing less than the future of representative democracy in our state and our nation.”

“Today’s arguments before the Supreme Court are about far more than lines on a map. They are about whether Louisiana will reflect the diversity of its people and ensure fair representation for all residents,” Carter said in a written statement.

Opponents of the Republican-led challenge to Louisiana’s map, fear that the suit could roll back the Voting Rights Act.

“The Voting Rights Act is not a relic; it is a living promise that our democracy belongs to everyone,” Carter said. “For nearly 200 years, Black Americans had virtually no representation in government. The Voting Rights Act, forged in the blood, was enacted to right that wrong. It remains as vital today as it was 60 years ago.”

Justice Elena Kagan is pointing out that Section 2 of the Voting Rights Act is not aimed at preventing racial discrimination that comes as an effect of redistricting, regardless of its intent by map drawers.

“Section 2 is not about intentional discrimination. Section 2 is about effects,” Kagan says.

“Our duty of candor requires, requires us to give the court our honest answer to that question,” Louisiana Solicitor General Benjamin Aguiñaga, said. “The race-based redistricting that you’re now objecting to is redistricting designed to remedy a specific identified, proved violation of law.”

Questioning Aguiñaga about the role of race in redistricting, Sotomayor says it’s always a factor.

Of the case’s six white plaintiffs, Sotomayor said that “no one’s stopping them from participating in the voting process,” adding that “the state is stopping Black voters from doing that in many districts, because it’s packing them into areas that whites overwhelming them.”

Beginning his remarks, the Louisiana solicitor general opened with the suppositions of what he called a “stereotyping system” that assumes one Black voter would vote like another.

Benjamin Aguiñaga is now arguing for the state. He’s the state’s solicitor general and is considered a rising star in conservative legal circles. He’s defending the states position that could bring major changes to the Voting Rights Act.

“The Constitution does not tolerate this system of of government-mandated racial balancing,” Aguiñaga said. “I respectfully but firmly resist the premise that this comes to the court on a finding of specific discrimination by the state.”

Under questioning from Justice Elena Kagan, Nelson describes as “catastrophic” the impact of Secton 2 of the Voting Rights Act ceasing to prevent vote dissolution, including in legislative districts beyond Congress.

“We only have the diversity that we see across the South, for example, because of litigation that forced the creation of opportunity districts under the Voting Rights Act,” Nelson said.

“It is an intervention that has been crucial to diversifying leadership and providing an ability of minority voters to have an equal opportunity to participate in the process, she adds.

Then an important caveat: “But it also isn’t a permanent remedy. It corrects itself over time, and it’s only triggered when those extreme conditions exist.”

Gorsuch appeared skeptical of Nelson’s argument, pressing her on how and when race can be used in the drawing of maps. His questions cut to the heart of the questions the justices are considering today.

“You’re saying sometimes acceptable for a federal district court to order a map that intentionally discriminates on the basis of race?” he asked. The Louisiana maps at issue today weren’t drawn by a judge, but courts can order maps re-drawn under the VRA.

Nelson pushed back. It’s not discrimination for states to keep race in mind as they draw voting districts to comply with the VRA and ensure representation for minority votes, she argued.

Asked by Justice Sonia Sotomayor to delineate differences between the current case and a 2023 decision that dealt with affirmative action, Nelson argued that the prior case “involved the diversity rationale involving an admissions process with a university, not a statute.”

In 2023, the Supreme Court struck down affirmative action in college admissions, declaring race cannot be a factor and forcing institutions of higher education to look for new ways to achieve diverse student bodies.

The court’s conservative majority effectively overturned cases reaching back 45 years in invalidating admissions plans at Harvard and the University of North Carolina, the nation’s oldest private and public colleges, respectively.

In a back-and-forth with Nelson about time limits, Justice Ketanji Brown Jackson said that the Voting Rights Act section in question, “doesn’t need a time limit, because it’s not doing any work other than just pointing us to the direction of where we might need to do something.”

Seeming to sum up her argument in agreement, Nelson said it would be “reckless” to determine, “somehow if Section 2 is no longer needed simply because it has been so successful in rooting out racial discrimination in voting.”

Kavanaugh, one of the key justices to watch in this case, questions whether there might be a point where the country no longer needs to take race into account in drawing voting districts.

“The issue, as you know, is that this court’s cases, in a variety of contexts, has said that race-based remedies are permissible for a period of time … but that they should not be indefinite and should have an end point,” he said.

Jackson brings up a 2023 case from Alabama where the Supreme Court upheld the Voting Rights Act.
Nelson’s argument seems to suggest, “We not revisit the determination that we made just two years ago,” Jackson said.

“That is absolutely correct,” Nelson responded.

This bit of political/legal jargon repeatedly came up early in Wednesday’s voting rights oral arguments.

The term refers to a practice by the party in power, which tries to pack Black voters into condensed areas, then divide them.

When it comes to redrawing districts in Louisiana, the argument by plaintiffs is that Republicans are seeking to condense the Black vote then dilute it by dividing them among districts.

Justices questioned Nelson on the “Gingles test,” which dates from a 1986 court ruling resulting in the invalidation of North Carolina legislative districts and yielded more single-member districts in state legislatures.

“You look at how different races of voters vote and whether they vote in a way that is polarized,” Nelson said, responding to a question about considering partisan and race in drawing districts.

“We’re talking about racially polarized voting that is above 84%, which is more than what this court found in Thornburg v. Gingles in 1986,” Nelson went on.

The questioning begins with Thomas. His long-held view that drawing districts with race in mind violates the Constitution. Until now, that view has never commanded a majority of the court.

Janai Nelson of the NAACP Legal Defense Fund argues her opponents “seek stagging reversal of precedent that would throw maps across the country into chaos.”

Roberts first called on Janai Nelson of the NAACP Legal Defense Fund to present her argument. Nelson is representing Press Robinson and other Black Louisiana voters.

But only one is defending the Louisiana congressional map with two majority Black districts.

That will be civil rights lawyer Janai Nelson, representing the Black voters who sued when the state initially produced a map with just one majority Black district.

The others are the Trump administration’s deputy solicitor general, Hashim Mooppan, Louisiana Solicitor General Benjamin Aguiñaga and Edward Greim, the lawyer for the white voters who sued over the map with two majority Black districts.

Louisiana switched sides after the court ordered new arguments.

In the post-pandemic era, the other justices allow the 77-year-old Thomas, the longest-serving member of the court, to pose a question or two before the free-for-all begins.

In a second round of questioning, the justices ask questions in order of seniority. Chief Justice John Roberts, whose center chair makes him the most senior, gets the first crack.

Along with the three liberal justices, John Roberts and Brett Kavanaugh were part of a surprising decision two years ago that required Alabama to redraw its congressional districts to benefit Black voters and led to the new map in Louisiana as well.

The outcome likely will be different if either justice votes differently this time around.

The crowd outside the Supreme Court before the Voting Rights Hearing was already larger than other crowds long before the doors opened.

Faye Gaskin, 64, with the Mt. Moriah AME Church in Annapolis said she was “here fighting for my grandchildren and the generations to come. If we do nothing, it’ll be a loss. I won’t be able to look myself in the mirror. Much blood has been shed and many lives lost for this.”

Her fellow church goer Linda Nevils, 72, said she was there to try to protect the vote “for our people. Everything comes from that. Where we eat, where we live, where we work.”

The impact of the section of the Voting Right Acts being argued before the Supreme Court isn’t just in how to draw the boundaries for election districts.

It’s often whether to draw them for local offices.

J. Morgan Kousser, a retired history professor at the California Institute of Technology who works on the issue, has tallied 1,363 cases since 1965 where plaintiffs using Section 2 have prevailed in court or reached settlements.

Of those, 937 have been to change at-large elections for local offices to make them district-based.

That’s a way to increase minority representation for seats on town councils, school boards, sanitation districts and other government bodies.

A second round arguments is rare at the Supreme Court and can presage a big change in the law.

The court’s 2010 decision in the Citizens United case that opened the floodgates to independent spending in political campaigns came after two rounds of arguments.

Since returning to the courtroom following the Covid-19 pandemic, the justices have routinely gone beyond the time set aside for arguments.

With questions for four lawyers, the session could even stretch into early afternoon. Arguments will begin shortly after 10 a.m., Eastern time.

The outcome of the case could have ramifications for an ongoing battle on congressional redistricting that’s already playing out across the nation, starting after Trump urged Texas and other GOP-controlled states to redraw the districts so the party could keep control of the House.

If the court sides with Louisiana, more than a dozen districts could be re-drawn in a way that could benefit Republicans, the Democratically aligned voting-rights groups Fair Fight Action and Black Voters Matter have estimated.

The court is expected to make its decision by June, which could lead some states to speedily redraw districts before the midterm elections.