“Redistricting foes blast Hanaway for trying to stop referendum on Missouri map”

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Missouri seeks to revive the independent state legislature theory, this time its by insisting that there’s a clear-statement rule. I may have more to say about this case in the near future. In the meantime, you can find the complaint here.

STLPR reports:

Missouri Attorney General Catherine Hanaway’s efforts to block a redistricting referendum is drawing fierce criticism from backers of the vote.

At issue is a push from a group called People Not Politicians to place a recently passed congressional map up for a statewide vote in 2026. The proposal would transform Congressman Emanuel Cleaver’s Kansas City-based district into a GOP-leaning seat.

Hanaway filed a lawsuit in federal court Wednesday arguing that the referendum plan violates the federal and state constitutions. The lawsuit contends nothing in the Missouri Constitution “expressly says that federal congressional reapportionment may be subjected to a referendum.”

“Defendants cannot identify any language that ‘makes it clear’ that the Missouri Constitution transfers authority over federal redistricting away from the General Assembly,” Hanaway’s lawsuit states.

On Thursday, Chuck Hatfield, an attorney for People Not Politicians, sharply disagreed with Hanaway. He pointed to language in the Missouri Constitution stating that people “reserve the power to reject laws and reserve the power to approve or reject referendums of any act of the General Assembly.”

“I would encourage you to go look at [the bill lawmakers passed during a September special session],” Hatfield said. “At the top, it says ‘an act of the General Assembly.’ The Constitution specifically allows a referendum on that bill. And she is just absolutely wrong about that.”

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The State Interest Solution

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I want to return to one possible outcome in Callais—holding that compliance with Section 2 isn’t a compelling state interest—that I’ve previously flagged but hasn’t gotten much attention. Here are some points about this resolution that could be attractive to some Justices:

  • It’s a clean way to affirm the ruling below that Louisiana’s Sixth District is an unconstitutional racial gerrymander. Strict scrutiny applies if the district was drawn for a racially predominant reason. Assuming it was so drawn, compliance with Section 2 is the only potential justification for the district. If compliance with Section 2 isn’t a compelling state interest, then the district necessarily fails strict scrutiny and is unlawful.
  • It’s a ruling that requires no modification or reversal of any precedent. Over the years, the Court has repeatedly assumed that compliance with Section 2 is a compelling state interest. But the Court has never made any holding to this effect. So stare decisis is no obstacle to this path.
  • It’s an approach explicitly endorsed by both the appellees and Louisiana. Per the appellees, “Section 2 compliance alone is never a sufficiently compelling interest” to uphold a district drawn for a racially predominant reason. Per Louisiana, “compliance with Section 2 cannot be a compelling interest.”
  • It follows from Justice Kavanaugh’s desire for a temporal limit. For a time, the argument would go, Section 2 compliance was a compelling rationale for racially predominant redistricting. But that time has now passed. In light of current conditions, Section 2 compliance is no longer a weighty enough consideration to greenlight what would otherwise be unlawful racial gerrymandering.
  • It would simplify the Court’s racial gerrymandering jurisprudence. In those cases, the operative question would become solely whether a challenged district was drawn for a racially predominant reason. If so, the district would be invalid. There would be no need for a subsequent strict scrutiny analysis (except in the unlikely event that a jurisdiction managed to identify some other compelling interest allegedly advanced by its districting choice).
  • It would also simplify the Court’s Section 2 jurisprudence. It would now be clear that Section 2 can never require remedial districts whose design reflects racial predominance. It’s already apparent that, under the first Gingles precondition, plaintiffs must submit race-conscious but not racially-predominant maps. This rule would now extend to remedies as well, permitting them only if they avoid racial predominance.
  • It would resolve the case without triggering legal or political earthquakes. Rewriting the Gingles framework for Section 2 claims—let alone striking down Section 2—would have massive implications for the Voting Rights Act, for constitutional law, and for racial and partisan representation across America. Holding that Section 2 compliance is no longer a compelling interest would certainly be a big deal, but it wouldn’t be so seismic a shift.
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“The Supreme Court Case That Could Hand the House to Republicans”

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Nate Cohn in NYT: 

Republicans have been redrawing congressional districts this year at President Trump’s behest, but so far it hasn’t seemed to be enough to deny Democrats a reasonable path to control of the House of Representatives.

That might change if the Supreme Court strikes down Section 2 of the 1965 Voting Rights Act in Louisiana v. Callais, a case the court heard Wednesday.

Without Section 2, which has been interpreted to require the creation of majority-minority districts, Republicans could eliminate upward of a dozen Democratic-held districts across the South.

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Lori Ringhand and Zach Poppe on Congruence & Proportionality

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Abstract below, and the full paper is on SSRN.

CONGRUENCE & PROPORTIONALITY AS A CONSTITUTIONAL CONSTRUCTION

The constitutionality of section 2 of the Voting Rights Act is one of the most hotly debated issues in U.S. election law. Congress enacted the VRA in 1965 under the authority granted by the enforcement provisions of the Fourteenth and Fifteenth Amendments. These provisions authorize Congress to enact “appropriate” legislation to “enforce” the substantive rights protected by the amendments. The constitutionality of section 2 depends in part on what standard of review the Court will use to determine the scope of that power. In 2013, in City of Boerne v. Flores, the Court adopted a new test, the congruence and proportionality test, to more strictly review legislation enacted under the enforcement provision of the Fourteenth Amendment. But whether that more restrictive standard should be used in the context of the Fifteenth Amendment has until now remained an open question. We argue it should not. In doing so, we take a fresh approach to the question by engaging with the rich methodological work done by academic originalists to argue that Boerne’s congruence and proportionality test is best understood as a “constitutional construction” rather than a “constitutional interpretation.” We then argue that the test’s usefulness as a constitutional construction in the Fourteenth Amendment context is significantly diminished in the much more confined space of the Fifteenth Amendment. Consequently, the congruence and proportionality test need not, and should not, be applied outside of the Fourteenth Amendment context in which it first emerged.

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