4 Takeaways From SCOTUS Redistricting Case That Could Shape Who Controls Congress

In a closely watched case that could have a significant impact on which party controls Congress and that could have national consequences when it comes to drawing congressional maps, the Supreme Court heard a second round of arguments Wednesday pertaining to a congressional redistricting case out of Louisiana.

Liberal groups are sounding the alarm that the forthcoming ruling in Louisiana v. Callais could net Republicans up to 19 new seats nationwide in the U.S. House of Representatives, as the decision could impact parts of the 1965 Voting Rights Act. 

The dispute began after the 2020 census when Louisiana redrew six congressional districts with just one majority-black congressional district. The state had one majority-black district from the 2010 census, but the groups contend that the black population shifted and grew, resulting in the need for a second district. 

The NAACP and others sued, alleging the new map resulting from the 2020 census violated Section 2 of the federal Voting Rights Act, which bans race-based gerrymandering of districts. 

In 2022, U.S. District Chief Judge Shelly Dick sided with the NAACP and ordered the state to redraw the map with two majority black districts. 

After the state created a new map, other state voters sued, asserting the new map violated the equal protection clause of the U.S. Constitution’s 14th Amendment, since the boundary lines of the second district had been drawn based on race. The 5th U.S. Circuit Court of Appeals struck down the new map. 

A final decision from the court is anticipated before the 2026 midterm elections next fall, according to the Louisiana Attorney General’s Office. However, varying news reports suggest it may not come in time to affect state laws next year. 

The ruling will affect how all state legislatures can draw their district maps. Based on their questions during Wednesday’s arguments, the justices seemed to mostly break along predictable lines, with the three Democrat appointees most favorable to the map with the two minority-majority districts.

Here are the key takeaways from the second round of oral arguments in the case. 

1. ‘Chaos,’ ‘Catastrophic,’ and ‘Sky-Is-Falling’

NAACP Legal Defense Fund President and Director-Counsel Janai Nelson said during her opening statement before the justices that brushing aside past precedent “would throw maps across the country into chaos.”

Justice Elena Kagan later asked Nelson, “What could happen? What would the results on the ground be?”

“I think the results would be pretty catastrophic,” Nelson replied. “If we take Louisiana as one example, every congressional member who is black was elected from a VRA [Voting Rights Act] opportunity district. 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.”

Politico first reported that an analysis by two liberal groups, Fair Fight Action and Black Voters Matter Fund, found that states could use redistricting to pick up 27 total seats nationwide for Republicans. Of those, 19 would come from changing the application of Section 2 of the Voting Rights Act to allow state legislatures to not consider race in drawing congressional maps.

However, during the arguments Wednesday, Louisiana Solicitor General Ben Aguiñaga argued gerrymandering has its practical limits. He argued that if a state legislature, such as the Republican-controlled Legislature in Louisiana, wanted to draw a new legislative map that would completely favor electing Republicans, it would encounter complications. For example, redrawing a map could end up turning some “safe” red districts into purple (toss-up) ones as voters are drawn out of one district into another.

“There has been a lot of sky-is-falling rhetoric from the other side in this case,” Aguiñaga said.

“Remember what has to happen with the hundreds of thousands of Democrat voters that currently exist in the majority-Democrat districts, District 2 and District 6,” he said. “They have to go somewhere.”

He said if the Legislature was intent on mass overhaul of the political maps, it would be politically risky. He said Republican incumbents wouldn’t seek to make their own districts more competitive. 

“That, I think, is a very dangerous political risk,” he said. 

2. Race-Based Remedies ‘Indefinite’ or ‘Endpoint’

“Race-based remedies are permissible for a period of time, sometimes for a long period of time—decades, in some cases. But they should not be indefinite and should have an endpoint,” Justice Brett Kavanaugh said, noting past high court determinations.

Kavanaugh asked if there would ever be an endpoint to using race to create congressional or legislative districts. 

Nelson replied that race-based redistricting may never need to expire.

“A race-based remedy can and should and usually does have a time limit and a durational limit,” Nelson said. “What is not grounded in case law is the idea that an entire statute should somehow dissolve simply because race may be an element of the remedy.”

Kavanaugh responded, “I don’t think it’s the statute. It’s the particular application of the statute that entails the intentional, deliberate use of race to sort people into different districts.”

“I think you might be saying there shouldn’t be a time limit,” Kavanaugh inquired. 

Nelson replied, “I am saying that. I’m saying there should not be a time limit.”

She added that Section 2 doesn’t always require a race-based remedy. 

The Supreme Court first heard arguments in the case in March, however, justices were not ready to rule and ordered a new round of arguments to focus specifically on whether Louisiana’s intentional creation of a second black district violated the 14th Amendment, which guarantees equal treatment of people under the law, or the 15th Amendment, which guarantees a citizen’s right to vote regardless of race.

Aguiñaga argued to the court that “race-based redistricting is fundamentally contrary to our Constitution.”

“It requires striking enough members of the majority race to sufficiently diminish their voting strength, and it requires drawing in enough members of a minority race to sufficiently augment their voting strength,” he told the justices. 

“Embedded within these expressed targets are racial stereotypes that this court has long criticized,” Aguiñaga continued. “They assume, for example, that a black voter, simply because he is black, must think like other black voters, share the same interests, and prefer the same political candidates—and this stereotyping system has no logical endpoint.”

“It’s a simple issue. The lower court found the plan was done for racial purposes and, therefore, the plan should die under the 15th Amendment,” J. Christian Adams, president of the Public Interest Legal Foundation, told The Daily Signal after the arguments. His organization filed a brief in the case. 

“There won’t be more than three justices that vote to keep the extra district. This ought to be unanimous,” he said. “The lower court and sponsors have said this was done for racial purposes. That should be the end of the story.”

3. ‘Like a Tape Measure’

Justice Ketanji Brown Jackson stressed that it is not easy to bring an argument under Section 2 of the Voting Rights Act regarding districts.

“It’s like a tool, it’s like a tape measure that we’re looking as to whether or not certain circumstances exist, and those circumstances that Congress is worried about is unequal access to electoral opportunity. And Section 2 tells you we have to look for those circumstances, and then the court says, yep, they exist in this situation under Section 2, and so now, a remedy is required,” Jackson said.

“That’s right, and its usage becomes less and less as we see racially polarized voting and residential segregation decreasing,” Nelson said. 

Jackson added, “Because the plaintiffs can’t make the showing [of fact].” That’s because, Jackson said, it’s difficult for a plaintiff to make a clear case of unequal treatment under voting laws.

4. ‘Compact Districts’

During the first oral arguments in March, Chief Justice John Roberts said the second-drawn black district looked like a “snake” that stretched more than 200 miles.

Justice Samuel Alito on Wednesday talked about whether the district for the intentionally-drawn black district made any sense. 

Alito noted that past court precedent stated that in order to create a district based on race considerations, a minority group must be large enough to constitute a majority in number in the district. Further, he said, the district much be “reasonably configured.”

“What the district court did there was not to ask whether the minority group was sufficiently compact but whether the district itself was sufficiently compact,” Alito said. 

Aguiñaga agreed with Alito’s assessment. 

“If you look at the black population in Louisiana, I mean, it is all over the place,” he said. “You can identify pockets of black voters, but they are dispersed across the state. There’s no way you can conceive of that population as compact.”