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Louisiana v. Callais, which was before the Supreme Court for oral argument today, involves an endemic conflict in redistricting cases between Section 2 of the Voting Rights Act and the Equal Protection Clause. Section 2 requires that members of racial groups have an equal “opportunity . . . to participate in the political process and to elect representatives of their choice,” and it often requires states to draw majority-minority districts. The Equal Protection Clause, on the other hand, forbids states from drawing districts by focusing predominantly on race. Thus, states are between a rock and a hard place. The Voting Rights Act requires that states pay enough attention to race to ensure minority control of the right number of districts, and yet the Equal Protection Clause requires that states not consider race too much.

Louisiana came to the Court today asking for relief from this predicament. Louisiana originally drew its six congressional districts after the 2020 census in a way that created one majority-minority district. That map was challenged. At the preliminary-injunction stage, the district court indicated that the map likely violated Section 2, and that determination was upheld on appeal. The court thought that a reasonably compact map could be drawn connecting black communities along the eastern side of the state, from the northeast of the state to East Baton Rouge. That map, however, would have resulted in the ouster of Representative Julia Letlow, whom the state wished to protect. The state then redrew the map, creating a second majority-minority district different from the one that the district court found would address the probable Section 2 violation. That district (District 6) was a snakelike district running across the state to include a sufficient number of black voters to ensure that it would satisfy the district court’s demand for a second majority-minority district.

This case involves a challenge to the new map. Specifically, the challenge alleges that the new map is an unconstitutional racial gerrymander. The three-judge district court agreed. Statements by legislators confirm what is obvious from the shape of the district: The district was drawn to ensure black control of the district. Louisiana does not dispute that; indeed, Louisiana frankly admits that it would have used its initial map with one majority-minority district were it not for the district court’s insistence that it create a second majority-minority district. Louisiana argues, however, that race did not predominate in the drawing of district lines because the reason District 6 was so snakelike was not only race but also politics. That is, Louisiana could have created a more-compact majority-minority district, but it chose to create a less-compact one because of political considerations—the protection of favored incumbents. The challengers respond that the state is not permitted to remedy a Section 2 violation in one part of the state by creating a majority-minority district somewhere else. Louisiana counters that, in this case, two-thirds of the black voters in the proposed district along the eastern border of the state reside in District 6; thus, they claim, there is a significant overlap between the compact district favored by the first district court and the district ultimately drawn by the state. The Court has never explained how much overlap is required.

More fundamentally, however, the question that has created this morass remains unanswered: What does it mean for race to predominate if the intentional, non-negotiable objective in drawing district lines is to create a certain number of majority-minority districts? Or, as Justice Gorsuch asked at oral argument, “What does it mean that race—or politics—predominates?” The Court has indicated that race does not necessarily predominate in the intentional creation of a majority-minority district, but here it is indisputable that the district map would not have been redrawn at all were it not for a perceived need to create a second majority-minority district. The essential question of the case is whether the state should be saved from a finding of racial predominance because of the political considerations involved in deciding where that district would be.

Justices Sotomayor, Kagan, and Jackson clearly indicated their agreement with the state. They, like Louisiana, argued that the state should have flexibility in devising a Section 2 remedy, even if the state’s chosen remedial district is non-compact. Justices Alito and Gorsuch were more skeptical about permitting the state to consider race, with Justice Gorsuch even appearing to suggest that all consideration of race in districting was problematic—a conclusion that would significantly alter Section 2 litigation by making it much harder to use the statute to force states to create majority-minority districts. Justice Thomas similarly was interested in identifying the alleged Section 2 violation that spurred the state’s creation of a second majority-minority district. Although he did not expand much on his thoughts, it may be that Justice Thomas, like Justices Alito and Gorsuch, believes that the state’s use of race is unconstitutional.

The three Justices in the middle—Chief Justice Roberts and Justices Kavanaugh and Barrett—are harder to read. Each of them, however, seemed to express doubt about aspects of the state’s position. Justice Kavanaugh pointed out that, in another case, Louisiana is arguing that Section 2 is unconstitutional—perhaps suggesting that it is odd for the state to claim a compelling interest in complying with Section 2 at the same time that it is arguing that Section 2 is unconstitutional. Justice Kavanaugh also asked whether there should be a time limit on Section 2’s use of race, again perhaps suggesting that the state’s use of race here was problematic. Justice Barrett also appeared uncomfortable with allowing the state to engage in racial gerrymandering simply because a judge issued a preliminary finding that Section 2 required the creation of an additional majority-minority district. Chief Justice Roberts was perhaps the most difficult member of the Court to read. He did suggest that District 6 was not compact because it was “a snake that runs from one end of the state to the other.” He did not, however, say much that would indicate his ultimate view on the case.