Louisiana v Callais, a case the Supreme Court heard on March 24th, contains a political puzzle. Why is the solidly Republican state defending a congressional map that cost the party a seat in 2024—and will probably keep that seat in Democratic hands after the 2026 midterms, when the fight to control the House of Representatives could be very close?
The answer arises from two rounds of litigation following the 2020 census. After Louisiana drew a map with just one district where black voters formed a majority, a federal court ordered the state to add a second. Noting that nearly a third of Louisiana’s voters are black, the court ruled that the first map violated section two of the Voting Rights Act of 1965 by diluting black voters’ power. But the second map also drew fire. Plaintiffs identified in court papers as “non-black” voters claimed it was “racially balkanising” and in violation of the equal-protection clause of the 14th Amendment. A different federal court agreed and threw the new map out.
This left Louisiana in an awkward position. If it did not try to save the second map, J. Benjamin Aguiñaga, the state’s solicitor general, told the justices, the federal court might have drawn one that would have “placed in jeopardy” the seats of Mike Johnson, the House speaker, and Steve Scalise, the majority leader. Mr Aguiñaga admitted he “would rather not be here”, stuck between civil-rights advocates and white plaintiffs with “diametrically opposed visions of what our congressional map should look like”. Yet the state made a “politically rational decision” by drawing and defending the second map to protect high-ranking Republicans in Washington.
Acknowledging these motivations might sound sordid. But the Supreme Court decided in 2019 that gerrymandering for partisan gain, while lamentable, is constitutional. And by emphasising the legislature’s political goals, Mr Aguiñaga was trying to defang the plaintiffs’ central contention: that race was the “predominant criterion” in the state’s redistricting. According to Shaw v Reno, if race predominates, the map must satisfy strict scrutiny, an often fatal level of review.
The liberal members of the court seemed to accept Mr Aguiñaga’s explanation that the state’s goals were primarily political, not racial. Justice Elena Kagan suggested that Louisiana had adopted what Chief Justice Roberts referred to as a district resembling “a snake that runs from one end of the state to the other” (see map), rather than a “normal-looking” alternative the original plaintiffs had offered, because it was protecting important seats. Such an oddly shaped district, Justice Sonia Sotomayor argued, was drawn to satisfy “Louisiana’s political needs”.
Some conservative members of the court were not persuaded, judging by the questions they posed to Stuart Naifeh, a lawyer for the NAACP Legal Defence Fund, a civil-rights group. “Isn’t saying race is one consideration another way of saying race predominated?” asked Justice Neil Gorsuch. Chief Justice Roberts asked if he really thought “the drawing of this district was not predominantly based on race”.
But two of Donald Trump’s appointees, Justices Amy Coney Barrett and Brett Kavanaugh, sounded like possible votes to join the three liberal members and uphold Louisiana’s map. Travis Crum, a law professor at Washington University in St Louis, thinks Justice Clarence Thomas, another conservative, might join the liberals, too, but for idiosyncratic reasons.
Mr Aguiñaga’s final plea was for “breathing room” to chart a course between the Voting Rights Act’s requirement of race-consciousness and Shaw’s ban on using race as a predominant factor in redistricting. Without the leeway that precedents have afforded until now, Mr Aguiñaga said, “respectfully, I don’t know what this court’s voting cases mean”. ■
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