Deuel Ross has written this fascinating article for the Harvard Civil Rights-Civil Liberties Law Review. Here is the abstract:

Voting is an act of faith. Faith that your vote will matter. Faith that your vote will make a difference. Faith in our democracy. In the years surrounding the 1965 passage of the Voting Rights Act (VRA), Black Americans had little reason to have such faith. Our streets and campuses were filled with protests in support of racial justice and opposition to faraway wars. An unpopular president had declined to seek reelection. He was replaced on the ticket by his vice president who went on to face both a “law and order” candidate and a populist promising to make America “stand up” again. All while Black people lagged far behind whites in voter registration, voter turnout, and elected representation in government. In response to the “cries of pain and the hymns and protests” of Black people, Congress enacted the VRA to offer the country a “cause for hope and for faith in our democracy.” As enacted, the VRA contained a “complex scheme of stringent remedies” that included Section 2, which barred racial discrimination in voting nationwide, and Section 5, which required states or other places with a history of discrimination to seek “preclearance” from the federal government before changing any laws or rules related to voting. 

The following is a post from Travis Crum:

Here’s a recap of today’s oral argument in Louisiana v. Callais.

At the outset, a short summary of what Callais is about. Callais is an old-school, 1990s-style Shaw challenge. The Callais plaintiffs—a group of non-Black voters—are challenging majority-Black Congressional District 6 (CD 6) as an unconstitutional racial gerrymander. So why did Louisiana draw CD 6? For that answer, we turn to prior Section 2 litigation known as Robinson v. Ardoin. After the 2020 redistricting cycle, the Robinson plaintiffs challenged Louisiana’s congressional redistricting plan, seeking a second majority-Black district. Louisiana lost in both the district court and the Fifth Circuit. Rather than prolong the litigation to final judgment and potentially have a court-drawn map imposed, Louisiana drew a new congressional map. Instead of using the remedial district requested by the Robinson plaintiffs, Louisiana drew CD 6 as an elongated majority-Black district that stretched across the State. Louisiana’s stated reason for doing so: to protect high-value Republican incumbents, like Speaker of the House Mike Johnson.

Under Shaw, if race predominates over traditional redistricting principles, the challenged district needs to survive strict scrutiny. Once strict scrutiny is triggered, a common defense is for the State to say that it had a “strong basis in evidence” for believing that it would have been liable absent it’s use of race. Here, the Robinson litigation is Louisiana’s justification for why it would have been liable under Section 2.

The argument focused on a core tension in the case. To the extent that Louisiana’s motives for drawing an elongated CD 6 were partisan, that helps the State at the predominance stage. But if the Court gets to strict scrutiny, then the partisan motives cut against Louisiana, as CD 6 appears to no longer be remedial. Several Justices—Thomas, Kagan, Kavanaugh, Barrett, and Jackson—asked questions targeted at this tension. Granted, the bulk of the questioning focused on the back-end, strict scrutiny part of the analysis: whether the Robinson litigation was a “good reason” for thinking Louisiana was going to be liable and whether CD 6 is an appropriate remedial district.

A few key takeaways. First, no one disputes that race and the Robinson litigation were a but-for cause in the re-drawing of Louisiana’s congressional districts. But that is not the relevant inquiry. Shaw, as construed in Miller, requires that race predominate in the drawing of CD 6. And if the Court wants a narrow decision, then it will decide the case on predominance grounds.

Second, the battlelines during oral argument reverted back to the old Shaw line-up: conservative Justices skeptical of the use of race whereas liberal Justices siding with the State. Indeed, Justice Alito—and to a lesser extent Justice Gorsuch—wanted to re-litigate both Robinson and Milligan.

Third, Justice Thomas asked questions solely about Section 2 and as if his recent Alexander concurrence had never been issued—a topic that sparked some back-and-forth between Rick Pildes and me on the blog over the past few days (see here, here, and here). But unless Thomas is going to tear up that concurring opinion, he will deem the Callais plaintiffs’ challenge a non-justiciable political question, thus providing a vote for Louisiana.

Fourth, there was a lot of discussion about the propriety of a State following federal court orders in separate litigation. The elephant in the room was obvious: the specter of the Trump Administration defying a court order and the ongoing dispute in Judge Boasberg’s courtroom over the deportation of Venezuelan migrants to an El Salvadoran prison. In some ways, that ostensibly separate case might motivate some of the institutionalist Justices to say something on the “strong basis in evidence” standard and the importance of following presumptively valid federal court orders.

Furthermore, to the extent the conservative Justices are concerned about imposing “competing hazards of liability” on mapmakers, they should not ratchet up the requirements for the “strong basis in evidence” standard. Put differently, looking under the hood at the Robinson litigation will only encourage more Shaw challenges and force States back into court to defend their remedial redistricting plans.

Fifth, Justice Kavanaugh raised his temporal/durational questions that we saw in his SFFA and Milligan concurrences. In my view, the LDF lawyer adeptly explained why Section 2, as interpreted in Gingles, responds to current conditions. But it is also worth pointing out that Section 2 does not classify on the basis of race in the same way that affirmative action plans do. Section 2 requires only the consideration of race in the decision-making process. I wouldn’t be surprised if Kavanaugh writes a separate opinion on his temporal point even if Louisiana ultimately prevails.

So what should we expect from the Court in June? And how do we count to five? There could be some strange bedfellows and multiple opinions. As noted, Thomas’s Alexander concurrence makes him a vote for Louisiana. The three liberal Justices were clearly in Louisiana’s camp. Alito and Gorsuch will side with the Callais plaintiffs. That makes the Chief, Kavanaugh, and Barrett the swing votes. The Chief seemed skeptical of the Robinson’s plaintiff’s compactness argument about the remedial district. Setting aside his temporal questions, Kavanaugh seemed open to a partisan defense, either at the predominance stage or at the remedial part of the inquiry. Barrett appeared to be leaning toward Louisiana on its partisan gerrymandering defense. Thus, I predict that Louisiana will be able to cobble together five votes one way or another.

The following is a guest post from Travis Crum:

Over the weekend, Rick Pildes published a response to my post—which built on a recent essay—calling on the Supreme Court to overturn Shaw’s racial gerrymandering cause of action in Louisiana v. Callais. I appreciate Pildes’s engagement on this important question. After all, he’s been a consistent—and rare—academic defender of Shaw. Furthermore, Pildes won over a lot of Shaw skeptics in the 2010s in the ALBC litigation.

The thrust of Pildes’s post is consequentialist reasoning. He raises the specter of mapmakers creating super-packed 80% BVAP districts absent the external restraint imposed by Shaw. According to Pildes, Gingles’s first prong, as interpreted in Bartlett v. Strickland, means that those Black voters have no Section 2 claim to an additional district. A couple of responses.

Pildes’s hypothetical assumes that there are no additional, neighboring pockets of Black voters. Put differently, the hypo supposes that District A is 80% BVAP and that neighboring Districts B and C are almost entirely non-Black. That may well be true in some places, but it is certainly not the case in many parts of the country.

Indeed, Section 2 has been used to unpack super-majority districts of this magnitude. In Black Political Task Force v. Galvin, 300 F. Supp. 2d 291 (D. Mass. 2004), a three-judge district invalidated a 78% BVAP district on Section 2 grounds—and did so assuming what would become Bartlett’s 50%+1 rule. And in Bone Shirt v. Hazeltine, 336 F. Supp. 2d 976 (D. S.D. 2004), a district court found a Section 2 violation after Native American voters had been packed into a 90% super-majority district. Put simply, Section 2 can be used to unpack minority voters.

Pildes also points to ALBC as a prime example of where Shaw has proven helpful to minority voters. In that case, most of the challenged state-legislative districts were 60-70% BVAP. Setting aside whether the lower court in ALBC correctly rejected the Section 2 claim—which, as Pildes alludes to, was the primary claim below—the key question today is whether, after Milligan and Alexander, plaintiffs would more likely win under Section 2 or Shaw. The Milligan Court endorsed Section 2, and that litigation showcased how new redistricting algorithms can identify compact majority-minority districts more easily. By contrast, the Alexander Court drew a big red circle around the partisan gerrymandering defense that most election law scholars/practitioners had been expecting after Rucho. Although Shaw helped minority plaintiffs during the 2010 redistricting cycle, I predict that will be a high watermark.

In constructing his hypothetical, Pildes claims that a mapmaker might draw the 80% BVAP district because it wants “to minimize Democratic voting [power] in surrounding districts or to weaken black political influence.” These two explanations actually undercut Shaw’s utility.

Pildes’s first mapmaker motive illustrates how racial gerrymandering claims are oftentimes partisan gerrymandering cases in disguise. The problem here is Rucho. The solution is not Shaw, especially after Alexander provides a strong “party, not race” defense. In my view, Callais reinforces that the original, 1990s version of Shaw lays around like a loaded weapon for litigants to pick up and challenge Section 2’s constitutionality.

Pildes’s other mapmaker motive raises the specter of discriminatory intent. To be sure, the Court has not found an intentional racial vote dilution violation since Rogers v. Lodge in 1982, and it has never done so in a single-member redistricting case. As now-Judge Dale Ho once pointed out, the 2010s wave of Shaw cases look a lot like discriminatory intent claims by another name. The harm, then, is not race consciousness subordinating traditional redistricting principles, but the bare desire to harm Black voters’ political prospects.

In any event, Section 2 also prohibits discriminatory results, and the whole point of that inquiry is to determine when minority voters lack an equal opportunity to elect their candidates of choice. If, under Pildes’s hypo, minority voters lack the numerosity to form additional single-member districts or are not residentially segregated, then Section 2 does not apply. And that limit should be viewed as a virtue—not a vice—in defending Section 2’s constitutionality, a point the Milligan Court emphasized.

Setting aside consequentialist reasoning, my ELB post and my Columbia Law Review essay argue that Shaw is inconsistent with originalist principles. Originalism is not my preferred method of constitutional interpretation, but it predominates on the Court today. Given this reality, I have chosen to engage with originalists on their own terms by investigating the original understanding of the Fifteenth Amendment. That inquiry demonstrated that Shaw and Miller—decisions written by swing Justices O’Connor and Kennedy—do not pass the originalism test. Pildes might well be right that a majority of the Court will not follow Thomas’s lead, but I suspect that no one in the 1990s thought that Thomas would ever reject Shaw. Time will tell how Shaw fares in our new originalist age.