Jim Crow is still dead

Many media reports reacted critically last week when the Supreme Court decided an important case about the Voting Rights Act (VRA). Some said the Supreme Court gutted the VRA while others cast the Court as partisan. The case was indeed important, but neither of these common story lines explain what the Court majority was trying to do. The VRA survives, and it has been reconciled to other important constitutional principles about race and discrimination. The majority decision is best understood as fixing anomalies that emerged over time in how the VRA has been interpreted.

This case is at the intersection of three different laws: the Constitution’s Fourteenth Amendment, its Fifteenth Amendment, and finally the Voting Rights Act itself, legislation passed by Congress in 1965 (and amended since then).

The Fourteenth and Fifteenth Amendments were both passed in the aftermath of the Civil War and the end of slavery. The Fourteenth Amendment prohibits racial discrimination by guaranteeing equal protection, due process, and the “privileges or immunities” of citizenship. The Fifteenth Amendment protected the voting rights of Black Americans. Slavery, of course, was the ultimate in disenfranchisement. But with the end of slavery, oppression and discrimination could continue so long as black Americans were deprived of a voice in the political system.

The basic American principle of representative government had to be honored for all citizens—and black citizens were often being denied that right.

In the civil rights revolution of the mid-20th century, Congress took action. The Fourteenth and Fifteenth Amendments authorized Congress to pass legislation to implement their guarantees, and it did—including passing the VRA in 1965. The VRA prohibited practices that had been used to suppress black voting, such as literacy tests and poll taxes, intimidation in voting, and the refusal to allow or count votes.

Over the years, the statute was applied to the drawing of districts. And here tensions emerged between the statute’s requirements and the Constitution. Drawing districts is hard. How are states to draw the lines on a map that will then determine the groups who are electing representatives is an area that has long been marked by discretion and political gamesmanship. The term “gerrymander” goes back to 1812, when Massachusetts Gov. Elbridge Gerry signed into law a new districting plan. It famously drew one district into a contorted shape that was said to look like a salamander—all to advantage the governor’s political party.

Gerrymandering that could be used for political gain could also be manipulated for racialized ends. The idea was to draw the lines to ensure that black voters would be outnumbered in every single district. Even with the vote, their votes could be sidelined. To address this problem, the courts began to use the Voting Rights Act in novel ways. They explained that the VRA did not permit de facto disenfranchisement by districting. Sensible enough. But did this mean that minority voters were entitled to have districts where they were majorities? It’s understandable how that could be one solution to a scenario of strategic disenfranchisement. And to correct direct racial discrimination this makes a lot of sense. But when this is taken outside the context of correcting immediate racial discrimination, and starts to look more like a right to have majority-minority districts, things get tricker.

This exposed a fault line with the Constitution’s prohibition on the government taking race into account. States trying to navigate the emerging law of redistricting found it to be a minefield. The Constitution prohibited discrimination on the basis of race; the VRA required state redistricting authorities to take race into account. States sought an elusive Goldilocks zone: take race into account enough to satisfy the Voting Rights Act as interpreted by the courts, but not so much as to run up against the Constitution’s prohibitions on taking race into account in making laws.

That’s what gave rise to Louisiana v. Callais, the case that the Supreme Court decided last week.

Louisiana redrew its congressional districts in the aftermath of the 2020 census, and litigation followed. Plaintiffs said the state’s map didn’t have sufficient representation of minorities to satisfy the VRA, and they said it could have included an additional majority-minority district. In 2022, a federal judge agreed. The state redrew the map, and the result was a second majority-minority district that was some 250 miles long and managed to pick up Black population pockets from Shreveport, Alexandria, Lafayette, and Baton Rouge. But then a new group of plaintiffs sued. They said that the new map was an unconstitutional race-based gerrymander.

Caught between these two lawsuits, Louisiana asked the Supreme Court to sort it out. In its decision issued last week, the Supreme Court brought some clarity to this field.

In a majority opinion by Justice Samuel Alito, the Court explained that Section 2 of the Voting Rights Act would still apply to districting. (Justice Clarence Thomas has long argued that the language of the statute may not even apply to districting, but the majority did not take such a far-reaching step in this case.) But what Section 2 protects is an equal chance for all voters to secure the election of their preferred candidates. States can’t single out minorities for less advantageous conditions in the political process.

Of course, what counts as less advantageous is complicated. The states have leeway to seek many goals, including partisan advantage, incumbent protection, manageable geographic units, and more. A randomly selected voter can expect to have the same opportunity to elect a preferred candidate as another randomly selected voter of similar political preferences and the like. They shouldn't expect it to differ based on race. Before a claim is available, the challenger has to show that race is being treated differently. If they can control for the permissible ends sought by the legislature and still find that the legislature has drawn maps to advantage or disadvantage racial groups, that’s when there’s a VRA violation. In this way, the VRA guards against the most egregious discrimination in districting. And it doesn’t violate the Constitution’s requirement of race neutrality that the Court has explained in other decisions.

At the end of the day, that’s what this Supreme Court decision stands for. It does change Voting Rights Act litigation compared with where it was immediately prior to the issuance of the Calais decision. Whether one likes the result or not, though, it is important to understand what the Court itself was doing on its own terms. And in this decision, it affirms that advantages in voting cannot be distributed based on race. But at the same time, the interpretation of the VRA that it offers has now been made consistent with the Constitution’s prohibitions on race discrimination.