The following is a guest post from Professor Travis Crum:
On Monday, the Supreme Court will hear oral argument in Louisiana v. Callais, a Shaw challenge to Louisiana’s congressional redistricting plan. This is the first time the Court will hear a voting rights case since Justice Thomas shocked the voting rights community with his renunciation of Shaw in Alexander v. South Carolina Conference of the NAACP. Thomas adopted his new position without the benefit of briefing on the subject, but Louisiana has now squarely raised the prospect that racial gerrymandering claims are non-justiciable political questions. As I predicted last year, Thomas’s Alexander concurrence means that he will side with Louisiana and the Robinson intervenors in this case. The bigger question now is whether some of the Court’s other originalist Justices—such as Gorsuch or Barrett—follow Thomas’s lead and question Shaw’s legitimacy.
Callais has a complicated procedural backstory. In separate litigation called Robinson v. Ardoin, civil rights plaintiffs challenged Louisiana’s original post-2020 map on a theory that closely resembled the one that prevailed in Allen v. Milligan. Seeing the writing on the wall, the Louisiana legislature re-drew its congressional map. But rather than place the second Black-opportunity district where the Robinson plaintiffs had requested, Louisiana drew an elongated district across the entire State to protect the seats of House Speaker Johnson and House Majority Leader Scalise. Somewhat predictably, the Callais plaintiffs challenged the district as an unconstitutional racial gerrymander.
Callais epitomizes how mapmakers are confronted with a Goldilocks problem when considering race. Mapmakers cannot consider race too much or too little. They must get it just right.
On the one hand, racial vote dilution doctrine mandates that mapmakers consider race to ensure that racial minorities are not packed or cracked. On the other hand, Shaw dictates that mapmakers cannot rely too heavily on race, lest the district be subjected to strict scrutiny. The Court has frequently acknowledged these “competing hazards of liability.”
As I recently explained in a Columbia Law Review essay entitled The Riddle of Race-Based Redistricting, the Court’s “competing” doctrines have come into conflict because they are based in the Equal Protection Clause—a provision that was not intended to apply to voting rights or redistricting. This error is confounded by the fact that the Fifteenth Amendment is curiously missing from the Court’s decisions recognizing racial vote dilution and racial gerrymandering claims. Furthermore, history cuts against Shaw. The Reconstruction Framers were explicitly race conscious in their adoption of the Fifteenth Amendment, and redistricting plans enacted by Republican state legislatures during Reconstruction sought to empower Black male voters. By re-grounding the right to vote free of racial discrimination in the Fifteenth Amendment, it becomes clear that Shaw rests on constitutional quicksand.
Shaw has all the hallmarks of a precedent that should be overturned. Shaw’s racial gerrymandering claim has no textual or historical support; the predominant factor standard is unworkable; Shaw diverges from equal-protection doctrine outside of redistricting cases; and it is in tension with racial vote dilution precedent and Congress’s considered judgment.
But unlike Justice Thomas, my solution is not to declare that racial gerrymandering claims are non-justiciable political questions. Rather, it is to clarify that plaintiffs simply cannot state a claim. Put differently, it is not that such claims are unworkable or that redistricting standards are textually committed to Congress; race-based redistricting simply does not violate the Fourteenth or Fifteenth Amendments.
One last point. In rejecting Shaw, the Court need not—and indeed, should not in Callais—address racial vote dilution doctrine. But in any event, the same analysis does not apply. That is because Congress has codified that doctrine in Section 2 of the VRA. As legislation adopted pursuant to Congress’s Fifteenth Amendment enforcement authority, Section 2 need only be a rational means of preventing the denial or abridgement of the right to vote on account of race—a point the Milligan Court recognized only two years ago.