Legal Docket: Drawing trouble

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MARY REICHARD, HOST: It’s The World and Everything in It for this 20th day of October, 2025. We’re so glad you’ve joined us today. Good morning! I’m Mary Reichard.

NICK EICHER, HOST: And I’m Nick Eicher. Time now for Legal Docket.

For today, two recent oral arguments before the U.S. Supreme Court.

We begin with a case out of Louisiana that could reshape how states draw congressional districts. At issue is whether using race to draw a second majority-black district in Louisiana violates the Constitution.

REICHARD: A federal judge required that after ruling the earlier map containing just one majority-black district violated the Voting Rights Act. Specifically, Section 2, which prohibits racial discrimination in voting.

EICHER: But a group of non-black voters say this new map goes too far—because it explicitly sorts voters by race. They call it a racial gerrymander. And they argue that violates the 14th and 15th Amendments—ratified after the Civil War to protect the rights of Americans freed from slavery.

Justice Brett Kavanaugh wondered just how long remedies based on race can last:

JUSTICE KAVANAUGH: …is there anything you can point us to that would not allow it to extend forever, the intentional use of race, which you acknowledged in response to Justice Gorsuch?

EICHER: The attorney for the black voters, Janai Nelson, pointed to Congress … saying that’s a political question and not one for the courts to address. Local conditions change … she argued … and lawmakers are best positioned to respond.

But we’re left with the question: what is the endpoint?

REICHARD: One amicus brief caught my eye, from the Pacific Legal Foundation. Lawyer Chris Kieser filed it in support of the non-black challengers to the second map.

He argues the constitutional issue here is that these are individual rights, not group rights.

CHRIS KIESER: The Equal Protection Clause and the Fifteenth Amendment are individual rights. They are concerned with have YOU been discriminated on the basis of your race. Now when we talk about group rights we’re talking about a system of proportional representation which actually Section 2 specifically says we’re not going to have that. But really when you get into the concept of group rights, you have to assume that groups have preferences, when really individuals are the ones who vote and individuals are the ones who have their rights protected by the 14th and 15th amendments. Groups don’t vote. Just because they’re a particular race, just like any other characteristic, that doesn’t mean they’re going to have particular politics.

REICHARD: Returning to the argument before the court: Justice Samuel Alito pressed the lawyer for the black voters with a series of hypotheticals. He was trying to find out whether what’s being labeled as racial bloc voting … might actually be partisan politics.

JUSTICE ALITO: If registered Democrats overwhelmingly vote for Democratic candidates regardless of the candidate's race, is that bloc voting?

JANAI NELSON: If you're looking at it simply from a party perspective, no. We don't judge bloc voting based on party, we judge it based on race. Racially polarized voting is measuring racial performance and voting behavior.

ALITO: And likewise if registered Republicans overwhelmingly vote for Republican candidates, that’s not bloc voting?

NELSON: That’s not how we measure voting. We measure voting based on race for purposes of Section 2 because the Constitution forbids race discrimination in voting, not party discrimination.

ALITO: So, if it happens to be that people of one race or another race overwhelmingly prefer one of the political parties, does that transform the situation into racial voting, or is it still just partisan voting?

NELSON: No. You look at how different races of voters vote and whether they vote in a way that is polarized.

REICHARD: Louisiana Solicitor General Benjamin Aguiñaga pushed back. He argued there’s no way to separate race and party—and trying to do so amounts to racial stereotyping with no clear endpoint.

Justice Neil Gorsuch took it further … pressing the lawyer for the black voters:

JUSTICE GORSUCH: Sometimes federal district courts order maps. And you're saying sometimes acceptable for a federal district court to order a map that intentionally discriminates on the basis of race?

NELSON: I—I—I disagree with that formulation… states and plaintiffs… cannot put forth maps that discriminate and that use race in—in excessive fashion.

EICHER: But what counts as “excessive”? Justice Department lawyer Hashim Mooppan put the shoe on the other foot:

HASHIM MOOPPAN: If you think there’s a problem here, white Democrats in West Virginia, they don't get districts drawn for them. White Democrats have zero representation in West Virginia, even though they're a significant percentage of the state.

The reason why Section 2 as be --as it's being construed …is a problem is it's saying that you have to create a district for Black Democrats that you would never create for white Democrats in a Republican state. It's essentially being used as a reverse partisan gerrymander on purely racial grounds. And that is a Constitutional problem.

EICHER: Even some of the liberal justices acknowledged how hard it is to separate race from politics. Listen to this exchange with the DOJ lawyer and Justice Sonia Sotomayor:

MOOPPAN: I agree they drew a very pretty rectangle. The problem is that in the very pretty rectangle, the Blacks lived in the south and the north. And they took two very different groups of Black people and put them together.

JUSTICE SOTOMAYOR: —the problem is that all of this map is that way, north and south, east and west.

MOOPPAN: Right, but they did it for racial reasons, and the State did it for non-racial reasons.

….later….

SOTOMAYOR: If you can't separate out the two, it's impossible.

MOOPPAN: But you can separate out the two. You can control for party and you can require them to draw a map that meets the political objectives.

REICHARD: Justice Ketanji Brown Jackson offered a striking analogy—comparing Section 2 of the Voting Rights Act to the Americans with Disabilities Act.

Her point? That Congress can require fixes even when no one intended to discriminate—so long as inequality persists. But in making that comparison … Justice Jackson seemed to cast black voters not as political actors with agency, but as people needing special accommodation.

Here’s her exchange with John Greim, another lawyer for the non-black voters:

JUSTICE JACKSON: And it didn’t matter whether the person who built the building intended for them to be exclusionary. That’s irrelevant. Congress said the facilities have to be made equally open if readily possible.… The idea in Section 2 is that we are responding to current-day manifestations of past and present decisions that disadvantage minorities… So I don't understand why it matters whether or not the state intended to do that. SO….what Congress is saying is if it is happening… you've got to fix it.

GREIM: The difference is that the remedy under the ADA… is not stereotyping—

EICHER: Greim pushing back and arguing that unlike the ADA … voting rights law isn’t about modifying the environment to help the disadvantaged. It’s about avoiding racial stereotypes.
Justice Jackson conceded the point but not the premise. If there’s no remedy, what’s left to do?

And that’s the tension … and to critics, the tell: an admission that the Voting Rights Act is being interpreted not just as a shield against discrimination, but as a tool to engineer racial outcomes.

Chris Kieser, whom you heard from earlier, says Louisiana is now stuck in a double bind:

KIESER: Well, it puts the states in really an impossible position, because in this case, Louisiana lost a section two preliminary injunction in a previous case, and so that's why they drew this district,...And so they drew a map with a second majority black district, and then they got hit with a racial gerrymandering lawsuit. And so you can see that, you know, there's, like, very little play in the joints between the way that section two is interpreted and the way that the racial gerrymandering is interpreted under the 14th Amendment….it's a very fine line the states have to walk.

EICHER: The Court’s decision will clarify how far states can go to comply with the Voting Rights Act—without crossing into that unconstitutional racial sorting.

REICHARD: On to our last case, Bost v Illinois State Board of Elections. It’s about mail-in ballots, but not whether they’re good or bad.

The issue is who has the right to challenge them? In legal terms: who has standing to sue?

EICHER: Illinois allows ballots postmarked by Election Day to be counted up to 14 days later. That’s been the rule since 2005. Congressman Mike Bost says that drags out the count and forces campaigns to keep staff on payroll just to monitor the results.

REICHARD: In order to show standing, Bost has to show a specific, personal injury—something directly caused by the 14-day rule and fixable by a court.

His lawyer, former U.S. Solicitor General Paul Clement, argued that a financial hit is injury enough.

PAUL CLEMENT: …Illinois is counting unlawful ballots. Those unlawful ballots could cost Congressman Bost the election or at least reduce his margin of victory, and he has to pay his campaign staff for two extra weeks. All of that means that Congressman Bost has standing three times over.

REICHARD: But Justice Elena Kagan wasn’t convinced:

JUSTICE KAGAN: It’s not enough to just walk in and say, ‘Hi, I’m a candidate and I’m suing.’ But what you have to show some kind of substantial risk that the new rule puts you at an electoral disadvantage relative to the old rule, ….and say something, not a lot, but something to suggest that that’s right.

CLEMENT: So I could live with that rule. I don’t know that it’s the ideal rule….later….I actually would prefer a rule that says: No, Congressman Bost is coming in and he's saying there are going to be unlawful votes cast and they'll be ballots with his name on it in his election. That's enough, we’re done.

EICHER: Clement also argued the 14-day rule creates a competitive disadvantage. Meaning, late-arriving ballots can erode the margin from votes already counted—and potentially flip the outcome. That line of reasoning made two justices uneasy—worried that courts could end up playing political oddsmaker. First, Justice Gorsuch:

JUSTICE GORSUCH: If a probability of loss is required, what’s the number—50 percent? 60? Is there something unseemly about courts prognosticating about a candidate’s chances immediately before an election, in a way that might influence the election?

EICHER: Then Chief Justice John Roberts:

JUSTICE ROBERTS: …what you’re sketching out for us is a potential disaster. ….if the candidate’s going to win by 65 percent, no standing. But if the candidate hopes to win by a dozen votes—and there are places where that happens over and over again, then he has standing. But we’re not going to know that until we get very close to the election, right? So it’s going to be in the middle—the most fraught time—for the Court to get involved in electoral politics.

REICHARD: On the other side, Illinois Solicitor General Jane Notz. She argued that extra staffing time is just an ordinary campaign expense. It’s not the kind of harm federal courts recognize as injury that would give someone standing.

Justice Kavanaugh foresaw courts flooded with election challenges after the fact. Here he is in an exchange with Justice Department lawyer Michael Talent in support of Bost:

KAVANAUGH: If there isn’t standing for these kinds of challenges to ballot-receipt deadlines for U.S. House elections and their standing pre-election … and they’re all forced post-election, what it looks like next November or December?....

P 62 ….’cause if we’re not thinking ahead to that, we’re going to walk into something.

MICHAEL TALENT: I can’t imagine it would be easy or good...

REICHARD: However the justices come down, it’ll affect dozens of other states that also count late-arriving mail ballots.

And that’s this week’s Legal Docket!

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