The big stakes in the Supreme Court’s new, absurdly messy gerrymandering case

The Supreme Court announced on Monday that it will hear a bizarre dispute between two different federal courts about how to fix Louisiana’s racially gerrymandered congressional maps. Under existing law, one of these courts was clearly correct and the other clearly erred. But this Supreme Court is often hostile to voting rights plaintiffs, so there is some risk that the justices could change the law, permitting more racial gerrymanders.

The Court will consider this dispute in a pair of consolidated cases, known as Louisiana v. Callais and Robinson v. Callais.

In June 2022, Chief Judge Shelly Dick, an Obama appointee to a federal court in Louisiana, determined that state’s congressional maps were an illegal racial gerrymander. Under the invalid maps, Black voters made up a majority in only one of the state’s six congressional districts, despite the fact that Black people comprise about a third of Louisiana’s population.

Dick ruled that “the appropriate remedy in this context is a remedial congressional redistricting plan that includes an additional majority-Black congressional district” — meaning that Louisiana must draw a new map that includes at least two Black-majority districts. Dick’s case is known as Robinson v. Ardoin, and Dick is a judge of the US District Court for the Middle District of Louisiana.

A ton of litigation followed Dick’s decision, including a brief trip to the Supreme Court, but Louisiana’s attempts to appeal Dick’s ruling ultimately failed. After the Fifth Circuit, the federal appeals court that oversees Louisiana, rejected an attempt to toss out Dick’s ruling, the state decided to give up the fight and comply with her order. The state legislature passed a new map that includes two Black-majority districts.

But then an entirely different federal trial court, the Western District of Louisiana, decided to insert itself into this dispute. A new set of plaintiffs filed a suit in the Western District claiming that the new maps are unconstitutional. This case, which was known as Callais v. Landry while it was before the trial court, was assigned to a three-judge panel. Two of those judges — the ones appointed by former President Donald Trump — agreed with these new plaintiffs that the state’s new maps are unconstitutional.

Louisiana, in other words, is now subject to two competing court orders. The first, from Judge Dick, forbids it from using the old maps. The second, from the two Trump judges in the Western District, forbids the state from using the new maps it enacted to comply with Dick’s order. 

The Supreme Court ruled last May that the state could use its new maps during the 2024 election, so that temporarily delayed resolution of this fight. But the long-term situation is obviously untenable. Louisiana needs to be able to draw congressional maps of some kind. And it needs to know what the rules are governing how it must draw those maps. 

That’s not possible so long as two entirely separate courts, each of which apparently have wildly divergent views about how to resolve racial gerrymandering disputes, are allowed to issue competing court orders.

So what does the law actually say about racial gerrymandering in Louisiana?

Under existing law — including the Roberts Supreme Court’s recent decision in Allen v. Milligan (2023) — Dick is clearly correct, and the two Trump judges are clearly wrong, about what should happen with Louisiana’s maps. Among other things, Milligan involved a nearly identical racial gerrymandering dispute from Alabama, and the Supreme Court ordered Alabama to draw a second Black congressional district in that case.

But this Supreme Court, with its 6-3 Republican supermajority, is frequently hostile to voting rights claims — and it is especially hostile to claims brought under the Voting Rights Act, the law that Dick relied on in her decision. So, while the right outcome in Callais is clear under existing law, there’s always a risk that this Court will abandon that law.

In Milligan, Alabama effectively asked the Supreme Court to abandon the legal framework governing racial gerrymandering cases brought under the Voting Rights Act, which the Court first announced in Thornburg v. Gingles (1986), and replace it with a new test that would render the act’s safeguards against racial gerrymandering toothless. 

In a 5-4 decision, the Court rejected Alabama’s request, holding instead that a lower court decision striking down Alabama’s racially gerrymandered maps “faithfully applied our precedents.” The Gingles framework, which the Court reaffirmed in Milligan, is complex. But it primarily required the Milligan plaintiffs to show that it was possible to draw two geographically “compact” Black-majority districts in Alabama, and that Black and white voters in the state tend to vote in separate blocs.

The Ardoin case — the one heard by Judge Dick — is similar in all relevant respects to Milligan. Louisiana’s lawyers previously told the Supreme Court that Ardoin “presents the same question” as the one decided in Milligan. In its ruling against Louisiana, the Fifth Circuit concluded that “most of the arguments the State made here were addressed and rejected by the Supreme Court in Milligan.”

So that really should have been the end of this dispute. Advocates who wanted the Court to abandon Gingles and legalize the kind of racial gerrymanders that were initially drawn by the Alabama and Louisiana state legislatures brought their case to the justices, and a majority of the justices rejected those arguments in 2023. That likely explains why, after Louisiana lost its appeal to the Fifth Circuit, it decided to give up this fight and voluntarily draw new maps.

So how on Earth did the Western District wind up getting involved?

To understand how a second federal court wound up invalidating the very maps that Louisiana enacted to comply with Judge Dick’s order, it’s important to understand a bit of tension that has long existed in federal voting rights law.

The 14th Amendment generally prohibits race discrimination of all kinds. Accordingly, the Supreme Court has held that this amendment forbids states from using “race as the predominant factor in drawing district lines unless it has a compelling reason.” At the same time, the Voting Rights Act sometimes requires states to draw a minimal number of legislative districts where a racial minority group is in the majority. This principle has been reaffirmed in many cases, including Gingles and Milligan.

Tension arises between these two principles because, if a state knows that it must draw at least two congressional districts with a Black majority, it can’t really accomplish that task without taking account of race. To resolve this tension, the Court held in Cooper v. Harris (2017) that a state may engage in “race-based districting” when it has “a strong basis in evidence” for concluding that it must do so to comply with the Voting Rights Act. 

Under Cooper, a VRA-compliant map is lawful if the state “had ‘good reasons’ to think that it would transgress the Act if it did not draw race-based district lines.”

So, under Cooper, the Western District had no business striking down Louisiana’s new map. Louisiana clearly had “good reasons” to think that it must draw a new map with two Black-majority districts because a federal court ordered it to draw a new map with two Black-majority districts, and the state’s attempts to appeal that decision were unsuccessful.

To avoid this conclusion, the two Trump judges responsible for the Callais decision largely rely on a line in Milligan which states that the Voting Rights Act “never require[s] adoption of districts that violate traditional redistricting principles.” They argue that the new maps, which were also drawn to protect several Republican incumbents, violate the traditional principle that legislative districts should be compact.

But that’s a pretty strained reading of Milligan. While the Supreme Court did hold that the VRA doesn’t require states to draw ugly districts, it also said in the very same paragraph that redistricting “is primarily the duty and responsibility of the States, not the federal courts.” So Millligan does not forbid states from drawing ugly, misshapen districts so long as those districts otherwise comply with the Voting Rights Act.

It’s worth noting that Callais falls within the Supreme Court’s mandatory jurisdiction, meaning that the justices are required to hear this case, or at least to issue an order resolving it. So the mere fact that the justices will hear what should be a very easy voting rights case does not mean that they intend to upend decades worth of law.

Still, while the legal principles that should govern in Callais are crystal clear, it is always worrisome whenever this unpredictable Court takes up a Voting Rights Act case of any kind. In Milligan, the Court surprised most Supreme Court-watchers when it voted to leave longstanding safeguards against racial gerrymandering in place. We’ll find out soon if all five justices in the Milligan majority actually meant what they said in that case.