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As if the gerrymandering arms race weren’t already approaching DEFCON 1, a pending Supreme Court ruling this year could tempt more states to join the fray.
Last month, the Court heard oral arguments in Louisiana v. Callais—a case that could spell the end of Section 2 of the Voting Rights Act, the bedrock federal law that bars racial discrimination in voting. At issue is the constitutionality of Louisiana’s Congressional map and its two majority-Black districts (the result of a legal challenge to the original map, which had just one majority-Black district for a state that is one-third Black).
White voters who brought suit claimed the new districts to be unconstitutional racial gerrymandering. The Court, however, has decided to look at an even broader question: whether Section 2 might be unconstitutional as well.
As voting rights expert Joshua Douglas explains, the Court is unlikely to strike down Section 2 outright. That’s a headline this Court doesn’t want. But the Court could still gut Section 2—by allowing the disenfranchisement of minority voters as partisan gerrymandering, not racial discrimination.
The result could be a fresh wave of redistricting efforts aimed at eliminating majority-minority districts like the one in question in Louisiana. While 34 percent of House districts were majority-minority in 2024, states like Tennessee, South Carolina, and Indiana have just one majority-minority seat. The loss of these districts would mean the loss of minority representation—and the loss of 60 years of progress toward racial equality.
Joshua A. Douglas is a law professor at the University of Kentucky J. David Rosenberg College of Law. He is the author of The Court v. The Voters: The Troubling Story of How the Supreme Court Has Undermined Voting Rights and is working on a new project on voter turnout and nonvoters. He is the host of the award-winning Democracy Optimist podcast and writes the Democracy Optimist Substack.
This transcript has been edited for length and clarity. The full interview is available at Spotify, YouTube and iTunes.
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Garrett Epps: Josh, as our readers know, you are our go-to guy on volatile voting questions, and we also love talking to you because you’re the “Democracy Optimist,” as you’ve described yourself. But I’m not sure you’re optimistic about a current case called Louisiana v. Callais. Could you tell us a little bit about that?
Josh Douglas: First, I’d like to point out that being a “democracy optimist” doesn’t mean I think everything’s great. It means I think there’s hope for the future.
I’m not particularly optimistic about this case we’re going to discuss, but I think of democracy in the long term and what can we do to help sustain democracy, even given the troubled and turbulent times that we’re living through right now.
But let’s talk about Louisiana v. Callais, because I do think this could be the potential for a not great outcome at the US Supreme Court for the future of minority voting rights.
Louisiana has six Congressional districts, and it’s got a population that’s about 33 percent Black individuals—so about one third minority. When Louisiana redrew its Congressional lines, it drew the lines such that only one of the six districts would be majority Black. So in the language of the lawsuits and the law, only one district out of the six would give minority individuals an opportunity “to elect a candidate of their choice.”
A lower court said this dilutes minority voting strength and was a violation of the Voting Rights Act. So Louisiana drew a new map with two of the six districts being majority Black. It also did some funny line drawing to protect some of the incumbents—Mike Johnson, Speaker of the House, in particular.
They passed a new map that was fairer in terms of minority representation, but then some white plaintiffs sued and said, “Hold up, Louisiana, when you drew this new map that has two of six majority Black districts, you thought about race too much.”
Separate from cases involving Section 2 of the Voting Rights Act, there’s another line of cases under the Equal Protection Clause of the 14th Amendment that basically says race can’t be the predominant overriding concern in redistricting. If Louisiana comes back and says, “We had to think about race to ensure that we were complying with Section 2 of the Voting Rights Act,” the plaintiffs can argue that this makes the Voting Rights Act itself unconstitutional.
So this is a long windup to say that this case could stand for a very important proposition about the constitutionality of Section 2 of the Voting Rights Act. If the Court finds that the reason the state drew the map the way it did with two Black districts was to comply with the Voting Rights Act, and that that is in and of itself thinking about race too much, then the Court could say that the Voting Rights Act itself is unconstitutional.
Garrett Epps: Just so our listeners catch up, the “effects” test under Section 2 means that it doesn’t have to be intentional discrimination to be violation of the Voting Rights Act. Is that a fair statement?
Josh Douglas: Right. There are two ways to think about discrimination. First, there’s intentional discrimination—when someone decides to draw the lines purposefully in a way that will make it harder for Black individuals to elect a candidate of their choice. That would be smoking gun intent.
The second is “effect.” In 1982, Congress updated the Voting Rights Act in response to a previous Supreme Court decision, City of Mobile v. Bolden. The Court in that case construed the prior version of Section 2 to only reach intentional discrimination. And Congress immediately responded, “No, what we want is Section 2 to reach effects.”
One way to think about this in a more concrete manner outside of redistricting is a voter ID law. When states pass a photo identification requirement for voting, they’re usually at least not trying to intentionally discriminate against minority individuals. But we know just based on living conditions, structural inequalities, the economy, that Black individuals are less likely to have an ID that qualifies. In some states, depending on the nature of the photo ID law, a photo ID requirement might have the effect of discrimination on the basis of race, even if the state legislature was not trying or even thinking about race in doing so.
The lawsuit over the initial Louisiana map argued that even if you weren’t trying to make it harder for Black people to elect a candidate of their choice with only one majority Black district, the effect of the map violated Section 2.
Garrett Epps: And “candidate of their choice” is important because people sometimes hear these discussions and believe that you’re entitled to majority Black districts or majority Latino districts. That’s not exactly right. It’s something called “opportunity districts,” if I recall correctly. Could you talk a little bit about that?
Josh Douglas: We say “candidate of choice” because we don’t mean that Black people get to vote for Black candidates or that we measure a map as to whether it has the effect of discrimination by looking at the population of the area and then comparing it to the percentage of Black individuals who are elected.
One good way to think about this is who was the “candidate of choice” for many Southern black Democrats in 2020? It was Joe Biden—a white individual, right? It so happened that Joe Biden had policies and a message that really called to a majority of Black individuals, particularly in places like South Carolina. That is a good example of a white candidate who was the “candidate of choice” for Black individuals in those places.
We don’t care how many minority individuals are in the legislature. We care whether those individuals were elected by minority people. Did they have the opportunity to choose someone that collectively they supported? It’s often going to be someone of the same race, but that’s not the test.
Garrett Epps: You listened to the oral argument for Callais. I did too. I have a feeling a lot of it went over my head that didn’t go over yours. What was your feeling about the oral argument in that case?
Josh Douglas: I think it seems pretty clear that there are going to be five votes to cut back on the Voting Rights Act, Section 2, in some way.
Now, the Court is probably going to want to avoid the headline of “US Supreme Court Strikes Down Voting Rights Act.” Chief Justice Roberts might want to do something that looks more mild, even though he has a long history of advocating against the Voting Rights Act.
What the Solicitor General argued was that if the state can say that it’s trying to achieve a political end and not just a racial end, the map is valid. That is to say, under a Section 2 lawsuit, a valid defense would be politics, not race. The Court already adopted this basic standard in a case out of South Carolina from just a year or two ago, Alexander v. South Carolina State Conference of the NAACP, where the Court basically said that if Black people challenge a map because the state thought about race too much in drawing the lines, the state can justify it by pointing to politics.
The U.S. Solicitor General suggested incorporating the same idea into the Voting Rights Act, Section 2, as a valid defense, and my suspicion is that’s where we’ll end up on this question.
Garrett Epps: That leads us into this whole issue of partisan gerrymandering. And to me, the weird turn that the Court has taken on that, in a case called Rucho v. Common Cause, is that they basically said that if all you’re trying to do is rig the system so that your candidates win, that’s okay. That’s partisan gerrymandering. If you’re trying to rig it so race is not dominant, well, that’s a different thing. We’ve now got this novel idea that if you’re trying to set up the system so that one party always wins, that’s okay. Where did this idea come from and how has it developed?
Josh Douglas: In that Rucho case in 2019 out of North Carolina, the Court referred to “constitutional partisan gerrymandering,” and I have always thought that phrase is very strange. How can partisan gerrymandering be constitutional under an understanding of the Constitution that protects equality, that protects democracy, and that preserves the idea of democracy being derived from the consent of the governed?
Partisan gerrymandering had been challenged for years, and when the US Supreme Court had faced the issue, the Court has said, “Well, partisan gerrymandering or least some level of partisan gerrymandering, is unconstitutional, but we haven’t figured out how we tell the difference between something that’s perfectly fine and legal and something that goes too far.” Anytime a legislature does anything, that’s inherently partisan, right? We kind of expect that. We expect when the legislature passes tax laws that it’s going to be partisan in nature. And if you don’t like the laws that the legislature passed, well, the solution is to vote the bums out.
So the Court has struggled with this idea that if everything a legislature does is partisan, and that the US Constitution gives state legislatures the authority to dictate the times, place and manner of federal elections, including the authority to draw the maps, how do we tell when that action is normal politics or politics gone too far?
The North Carolina map was clearly a far, far outlier. The map drawers didn’t hide what they were doing. They had 14 congressional districts, and they drew a map that was 10 strong Republican districts and four Democratic districts. And when the key Republican lawmaker who drew the map was asked why did you draw a map that was 10-4, he said, “Well, I couldn’t figure out a way to make it 11-3 and still comply with the “one person, one vote” standard. So it was implicitly partisan in terms of what they were doing, and the US Supreme Court basically said that’s fine.
There are many problems with this—the first being that this is letting the politicians choose their voters instead of the other way around.
You wish the number one goal of state legislators is to serve the people well, but their number one goal is to win reelection and keep their job. And what better way to do that than to draw the lines in such a way that it basically makes it impossible for the other side to win?
So that’s problematic in and of itself. But I think the problem has become supercharged in these cases involving race. Not only did the US Supreme Court say, “We’re not going to police partisan gerrymandering,” we’re now seeing states use politics as their defense to every other potential claim against their maps. And we’re seeing the Supreme Court essentially still defer to the legislature when using politics as the defense.
In the Alexander case, the argument was that the state drew the map to pack as many Black voters in as few districts as possible, so that white people could control the rest of the state. That was the claim. The state was able to say, “Well, there’s a political reason for why we did this.” And the US Supreme Court said, “Okay, that defeats the plaintiff’s claim.” I fear a similar standard is going to be set out in Louisiana v. Callais.
The headline would be that the Court “guts” Section 2 or cuts back on it but doesn’t strike it down. But the practical effect would be that it would be extremely difficult to bring a Section 2 claim against a map if the state could justify it based on its partisanship and partisan arguments.
Garrett Epps: As you look at what Louisiana did or South Carolina did, how far have we come from that period when the Voting Rights Act was needed to hold back legislators who were going to explicitly discriminate?
Josh Douglas: This is where my democracy optimist viewpoint will come in a little bit, which is to say that we’re definitely way better off in terms of equality in voting in representation since the early 1960s. That’s kind of undeniable, right? We don’t have explicit literacy tests anymore. Registration rates between minority individuals and white individuals have come a lot closer. It’s not exactly on par, but the registration gap is not as big. The turnout gap is not as big. It still exists, but it’s not as big. So I think we can say that we have come a long way, but that doesn’t mean we’re done. And just saying there’s been progress doesn’t mean that progress is finished.
If the Voting Rights Act gets cut in these ways, that’s going to set us back. But my democracy optimist mind sees that longer history and sees that, okay, we need to find different tactics or new ways to tackle the problem of what Justice Ginsburg referred to as “second generation barriers” to voting. I think we’ve cleared and fixed many of the first generation barriers—the explicit attempts to defeat minority voter opportunity and representation. But that doesn’t mean we’re done.
