Washington — Members of the Supreme Court’s conservative majority appeared open Wednesday to raising the bar for successfully challenging voting maps under a key pillar of the Voting Rights Act, a decision that would weaken the landmark law and limit the consideration of race in the drawing of congressional districts.
The high court appeared sharply divided in the dispute over a long-running legal fight over Louisiana’s congressional map, which was before the justices for a second time Wednesday. The high court first heard arguments in March over whether Louisiana lawmakers relied too much on race when it crafted new House district lines last year. But the justices declined to issue a decision then, and in August, it posed a new question for consideration: Whether state lawmakers’ intentional drawing of a second majority-minority district — which was undertaken to remedy a likely violation of Section 2 — runs afoul of the 14th and 15th Amendments.
The dispute is likely to have significant ramifications not just for political representation in Louisiana, but also for its potential to upend Section 2, which has become a crucial tool in recent years for minority voters seeking to ensure they have equal opportunity to elect their preferred candidates.
Following more than two hours of oral argument, it appears that that Louisiana’s current congressional map, which includes four majority-White districts and two majority-Black districts, will not stand. But less clear is how far the Supreme Court’s conservative majority will go with a decision.
Chief Justice John Roberts and Justice Brett Kavanaugh’s votes in the case are key, as they joined with the three liberal justices two years ago to reaffirm Section 2 and the framework, in place since 1986, for proving vote dilution under the civil rights law. During the arguments, Kavanaugh seemed open to the Trump administration’s position, which calls for tightening the standards for proving a violation of Section 2.
Kavanaugh called their part of their proposed new standard an “innovation.” But he repeatedly pressed lawyers for both sides on a possible end-point for race-based remedies for Section 2 violations, which has involved the drawing of majority-minority districts. In the 2023 case, Kavanaugh wrote in a concurring opinion that “the authority to conduct race-based redistricting cannot extend indefinitely into the future.”
But he also appeared uncomfortable with the use of race in redistricting, quoting from a 1994 concurring opinion by then-Justice Anthony Kennedy, who wrote, “the sorting of persons with an intent to divide by reason of race raises the most serious constitutional questions.”
Justice Amy Coney Barrett clarified during the proceedings that the argument pressed by the Justice Department would mark a “modification” of the preconditions used in vote-dilution cases since 1986.
But Justice Sonia Sotomayor argued that under the framework proposed by the Justice Department, “the bottom line is just get rid of Section 2,” and Janai Nelson, president and director-counsel of the NAACP Legal Defense Fund, said the Trump administration’s proposal would “swallow Section 2 whole.”
When the Supreme Court considered Louisiana’s map in March, it originally focused on a more narrow set of issues about the House district lines. But after agreeing to hear the case again, it asked Louisiana officials and voters involved in the challenge to address whether race-based redistricting comports with the Constitution.
That new question upped the stakes of the case, as Republicans in Louisiana urge the Supreme Court to forbid the consideration of race in the drawing of voting lines. Benjamin Aguinaga, Louisiana’s solicitor general, told the justices that race-based redistricting is “fundamentally contrary to our Constitution.” A decision in the state’s favor could erode Section 2 and deal another blow to the landmark voting rights law more than 10 years after the Supreme Court gutted one of its key provisions.
The legal fight over Louisiana’s congressional map dates back to 2022, when GOP lawmakers in the state drew new House district lines after the 2020 Census. That map consisted of five majority-White districts and one majority-Black district. Nearly one-third of Louisiana’s population is Black, according to Census data.
A group of African American voters challenged the map as a violation of Section 2 because it diluted Black voting strength, they argued. A judge in Baton Rouge agreed, finding the map deprived Black voters of the chance to elect their preferred candidate, and she ordered the state to put a remedial map in place with a second majority-minority congressional district.
The new plan adopted by the Louisiana legislature in 2024 reconfigured the state’s 6th Congressional District, which state lawmakers said was in an effort to bring it into compliance with the Voting Rights Act. The new District 6 has a Black voting-age population of roughly 51% and stretches across the state from Shreveport, in Louisiana’s northwest corner, to Baton Rouge, in the southeast. Congressman Cleo Fields, a Democrat who is Black, was elected to represent the district last November.
State lawmakers said they had a political goal in mind, too, when recrafting the voting boundaries: to protect key Republican incumbents in the House, namely House Speaker Mike Johnson, Majority Leader Steve Scalise and Rep. Julia Letlow, who sits on the powerful Appropriations panel.
But after the new map was adopted, a group of 12 self-described “non-African-American” voters challenged the boundaries, alleging the new District 6 was an unconstitutional racial gerrymander. A divided panel of three judges in Shreveport sided with the voters and found that the state legislature relied too much on race when it crafted the new map.
The case landed before the Supreme Court in its last term, and Louisiana Republicans joined with Black voters and voting rights groups in urging the justices to leave the new congressional map in place. But with the case set to be reargued, and the focus now on the constitutionality of race-based redistricting, state GOP lawmakers are no longer defending their district lines.
Instead, state officials are arguing that the there should be “zero tolerance for any consideration of race.”
“[R]ace-based redistricting mandated by Section 2 is unconstitutional because it violates basic equal protection principles: It uses race as a stereotype, uses race as a negative, and has no logical end point,” Louisiana Attorney General Elizabeth Murrill, a Republican, wrote in a filing. “Accordingly, Section 2 is unconstitutional insofar as it requires race-based redistricting. “
The Trump administration is backing Louisiana and the “non-African-American” voters in the case and has urged the Supreme Court to tighten the standards for proving unlawful vote dilution under Section 2. The framework in place since 1986 requires plaintiffs to show racial polarization in voting, in addition to other preconditions.
“Too often, Section 2 is deployed as a form of electoral race-based affirmative action to undo a State’s constitutional pursuit of political ends. That misuse of Section 2 is unconstitutional,” Solicitor General D. John Sauer wrote in a filing.
But lawyers for the voters who challenged the initial district lines, which were then redrawn to include a second majority-Black district, argue the new map largely prioritized Republicans’ political goals of protecting key incumbents. Any consideration of race, they said, was limited and driven by a compelling interest in addressing a violation of the Voting Rights Act.
Nelson, who argued on behalf of Black voters defending the current map, warned that if the Supreme Court were to side with Louisiana and the White voters, it would be a “staggering reversal of precedent that would throw maps across the country into chaos.”
She told the justices that if Louisiana’s current map is “unsatisfactory,” they should send the case back to the lower courts to adopt another map that addresses the Section 2 violations and satisfies the Constitution.
“[T]he notion that the sun has set on the need for race-conscious remedial redistricting for identified instances of racial vote dilution is contrary to both the fact of ongoing discrimination in Louisiana and the text and purpose of [Section 2] as it was amended in 1982 and has been consistently interpreted by this Court ever since,” lawyers for the Black Louisianans wrote in a filing.
They warned that removing Section 2’s protections for minority voters in Louisiana “will not end discrimination there or lead to a race-blind society, but it may well lead to a severe decrease in minority representation at all levels of government in many parts of the country.”
Without the provision, “jurisdictions could simply eliminate minority opportunity districts even where they remain necessary for voters of color to have any opportunity to elect candidates of choice, wiping out minority representation and re-segregating legislatures, city councils, and school boards — as some have recently attempted to do,” lawyers wrote.
In response to questioning from Kavanaugh about an end-point for race-based redistricting, Nelson said there’s no precedent to suggest that a statute must dissolve on its own because race is part of the remedy. And she argued that the nondiscrimination element of the 15th Amendment is “a permanent right, and so should be the protection that Section 2 affords.”
Justice Ketanji Brown Jackson suggested that Nelson was saying that Section 2 is itself not a remedy that should have an end point, but was instead more of a mechanism — a kind of “check-in” on “where we might need to do work.” She compared it to a “tape measure” that “doesn’t need a life cycle.” Nelson agreed and noted that the number of successful challenges to maps under Section 2 cases have fallen in the last decade.
Justice Samuel Alito asked Nelson about the differences between racial voting and partisan voting. If drawing districts to protect incumbents is reasonable, isn’t seeking partisan advantage something that legislatures can seek? he asked.
No, Nelson replied, not under the 14th and 15th Amendments. Redistricting on a partisan basis, she said can’t come “at the cost of the equal protection principle.”
Alito suggested that racially polarized voting could easily be identified through statistical analysis, and it could be seen whether White Democrats vote for Black Democrats at a lower rate, for instance.
Nelson told him that White Democrats were not voting for Black candidates — whether they were Democrats or not. She said there was no question that even if there is some correlation, that race was the driving factor.
Justice Neil Gorsuch repeatedly suggested allowing race to be taken into account during the drawing of district lines is a way to “intentionally discriminate.”
“Is it acceptable under Section 2 as, as you understand it, given our precedents, for a court to intentionally discriminate in a remedial map on the basis of race?” he asked Nelson. “One argument is often, well, once you’ve found a Section 2 violation, you’ve got a compelling interest to go ahead and discriminate on the basis of race in your remedial map. And I’m just wondering, do you endorse that view or do you reject that view?”
The Supreme Court is re-hearing the case involving Louisiana’s map just over two years after it upheld Section 2 and reaffirmed the framework for proving vote dilution set out in the 1986 ruling. The high court split 5-4 in that 2023 case, which involved a challenge to Alabama’s congressional map, with Roberts and Kavanaugh joining the three liberal justices in the majority.
The two justices also voted to outlaw the use of race as a factor in college admissions, a decision that came down in the same term as the Alabama voting rights dispute.
Roberts, in particular, has long denounced racial classifications. In a 2006 concurring opinion, the chief justice wrote, “it is a sordid business, this divvying us up by race.” He also authored the 2013 majority opinion that dismantled Section 5 of the Voting Rights Act, writing, “our country has changed, and while any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions.”
A decision from the Supreme Court is expected by the end of June or early July.