Louisiana v. Callais to be Reargued

Today, the Supreme Court ordered Louisiana v. Callais to be reargued in the Court’s next Term. A decision on the case, which involves the legality of Louisiana’s congressional districts, will therefore be delayed by at least several months. The Court indicated that a future order might identify “additional questions” to be addressed in briefing and argument. Reargument is rare but not unheard of. 

Justice Thomas dissented from the Court’s decision to delay a decision. He argued that the Court had an “obligation to resolve [redistricting] challenges promptly” because those are the cases in which the Court has mandatory appellate jurisdiction instead of its usual discretionary certiorari jurisdiction.

The case involves a conflict between the Court’s interpretations of the Fourteenth Amendment and Section 2 of the Voting Rights Act (VRA). While the VRA sometimes requires states to engage in race-conscious redistricting to ensure that minorities have an equal opportunity to participate in the political process and to elect representatives of their choice, the Equal Protection Clause prohibits states from drawing district lines with race being the “predominant factor” considered by the state. Although it would seem self-evident that the purposeful creation of a majority-minority district would render race the predominant factor in drawing districts, the Court has indicated that an intentionally created majority-minority district can be constitutional if factors besides race (such as the compactness of the districts and respect for municipal boundaries) are given enough weight.

Louisiana has six congressional districts. Blacks comprised a majority of residents in one of those districts. In a different lawsuit, a district court stated that unless it drew a second majority-minority district, Louisiana would be held in violation of the Voting Rights Act. Louisiana then did so, but created a district that stretched across the width of the state to fill the district with enough black constituents. This suit was then brought, challenging the district as a racial gerrymander. The state, caught between the competing demands of the VRA and the Fourteenth Amendment, asked the Supreme Court to review the case.

It is difficult to speculate on the reason for the reargument, especially because the Court has not yet identified the “additional questions” that it will want to be addressed in future briefing. One can hope that the Court has recognized that its jurisprudence in this area is a mess and wants the extra time to construct a doctrine that makes sense, even if that requires overruling some precedents. One possible topic for reargument is the “temporal” issue that Justice Kavanaugh raised at oral argument in March: whether the Voting Rights Act’s requirement of race-conscious creation of majority-minority districts can be a constitutional remedy for voting discrimination—in 2025—given the improvement in blacks’ access to the ballot that has taken place during the sixty years since the VRA was passed. The Court may conclude, as it did with regard to Section 4 of the VRA in Shelby County, Alabama v. Holder, that Section 2 of the VRA cannot continue to rely on a decades-old race-conscious remedy for a problem that is much different than it was when the VRA was passed in 1965 or amended in 1982.