Redistricting – What is the Rule of Law?

Redistricting has become the newest front in the war for political control between Republicans and Democrats. As a result, the Supreme Court will decide the Rule of Law on redistricting. On October 15, the Court heard additional oral argument in Louisiana v. Callais, a case that could impact legislative redistricting efforts nationwide long term. At its core, Callais is about equal representation for Black voters and the role of race in redistricting.

Callais was first argued in June. But in an unusual move, the Supreme Court ordered re-argument during the fall term, prompting speculation that the Justices are prepared to revisit whether trial courts can require race-conscious remedies after finding racial discrimination. The Court requested re-argument on the specific question: “whether Louisiana’s intentional creation of a second majority-Black district violates either the 14th Amendment or the 15th Amendment, which bars both the federal government and states from denying or abridging the right to vote “on account of race, color, or previous condition of servitude.”

The Supreme Court will decide if the creation of a second majority Black district is an acceptable remedy to address unconstitutional racial discrimination. The “non-African Americans,” as the State of Louisiana refers to itself, contend that intentionally creating a second majority Black district to comply with the Voting Rights Act itself is unconstitutional. They contend that their right to vote is being abridged by the creation of a second majority Black district that was created to remedy the abridgement or curtailment – of Black Americans’ right to vote.

This case arose after the 2020 census revealed that Louisiana’s Black population increased to one third of the state’s population. Yet, Louisiana passed a redistricting map with only one majority-Black district. The trial court concluded that the map amounted to an unconstitutional racial gerrymander. The lower court created two majority Black districts out of Louisiana’s six congressional districts, matching the state’s one-third Black population.

Proportionate redistricting was questioned by Justice Clarence Thomas in his dissent in Allen v. Milligan (2023). Justice Thomas argued that the decision forces “Alabama to intentionally redraw its longstanding congressional districts so that Black voters can control a number of seats roughly proportional to the black share of the State’s population. Section 2 demands no such thing, and, if it did, the Constitution would not permit it.”

The Supreme Court’s 2023 decision in Allen v. Milligan upheld decades of precedent beginning with Thornburg v. Gingles, (1986), and recognized that attacks on the Black voters’ rights continue today. The 5-to-4 majority in Milligan reaffirmed the court’s 1986 precedent interpreting how legislative districts must be drawn under the Voting Rights Act. Chief Justice John Roberts, who had joined prior decisions that gutted key parts of the voting rights law, authored the Milligan majority opinion and was joined by Justices Brett Kavanaugh, Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson. The Court found that Alabama likely violated the Voting Rights Act by diluting the Black vote when it redrew the state’s congressional district map after the 2020 Census. The redistricted district lines had packed large numbers of Black voters into one congressional district and then spread out the remaining Black population into other districts so that Black voters were diluted. The Court ruled that Alabama denied African American voters a reasonable chance to elect a second representative of their choice.

Callais puts the Rule of Law and the principle of stare decisis under the microscope. It has been argued that the doctrine of stare decisis is important because it provides the legal system with stability, predictability, and consistency. Stare decisis helps ensure that similar cases are treated and decided in a similar, evenhanded manner, assuring equality for all litigants and preventing arbitrary or biased judgments. The Court’s request for re-argument in the Callais case raises questions about whether the 40 years of precedent will be set aside. At oral argument, Louisiana specifically argued that the Court should “reevaluate its voting precedents.”

Bringing the issue into stark focus, Justice Kagan asked Louisiana’s counsel:

[Justice Kagan]: [Y]ou’re asking us now to change what our precedents say is that when those things operate currently right as of now and are proved in a courtroom, that –that still there can’t be a race-based remedy.

[Louisiana counsel]: That’s correct.

Justice Sotomayor commented, “we have said over and over again that statutory precedents are entitled to far greater stare decisis protection.”

Opinions differ on the importance of precedent, with some viewing it as a fixed constraint and others seeing it as a flexible tool that can be interpreted or overturned. In a recent speech at Catholic University, Justice Clarence Thomas stated that the legal principle of stare decisis is not an absolute rule and that Justices should not blindly adhere to prior decisions that are “totally stupid.” Former Justice Lewis Powell once remarked: “The elimination of constitutional stare decisis would represent an explicit endorsement of the idea that the Constitution is nothing more than what five justices say it is.”

The Supreme Court’s decision in Louisiana v. Callais will determine the future of the Voting Rights Act and the ability to challenge racial discrimination in elections, particularly racial gerrymandering. This decision will impact all of us and is critically important for our democracy, for upholding the principle of equal representation, and the rule of law.