- The Supreme Court’s decision in Callais will likely have an immediate impact in an ongoing legal dispute over Mississippi’s Supreme Court districts and could have an outsized impact on other redistricting moving forward.
On Wednesday, the U.S. Supreme Court voided a minority-majority congressional district created in Louisiana. Justices found that the district, which was drawn in response to a lower federal court’s order, was not required by Section 2 of the Voting Rights Act and that its creation amounted to unconstitutional racial gerrymandering.
The decision in Callais v. Louisiana rewrites the legal framework applied to Section 2. Previously courts looked at so-called “disparate impact” or “discriminatory effect” to determine if a Section 2 violation occurred. These decisions explicitly ignored whether evidence of actual discriminatory intent existed.
Last fall, in a case brought against the State of Mississippi challenging the districts used for the election of state Supreme Court justices, U.S. District Judge Sharion Aycock found a Section 2 violation. She ordered Mississippi to draw new Supreme Court districts. Aycock’s decision noted that only four black Supreme Court justices had ever been elected in Mississippi and found black voters should have more opportunity to elect justices of their choosing.
The plaintiffs in White v. Mississippi actively surrendered any claim that Mississippi’s Supreme Court districts are intentionally discriminatory. (Those districts are drawn in straight blocks representing South, Central and North Mississippi. There are no squiggly lines or random hooks.)
Aycock held this did not matter: “Liability in a Section 2 case ‘turns on the presence of discriminatory effects, not discriminatory intent.’”
The Supreme Court’s decision in Callais flips the judicially created framework applied by Aycock on its head. The Supreme Court just found that to sustain a Section 2 claim evidence of intentional racial discrimination is constitutionally necessary and evidence of alleged disparate impact is not appropriate:
“[A] law that seeks to enforce the Fifteenth Amendment by prohibiting mere disparate impact would fail to enforce a right that the Amendment secures. That is never ‘appropriate,’ because Congress cannot ‘enforce a constitutional right by changing what the right is.’ For this reason, the focus of §2 must be enforcement of the Fifteenth Amendment’s prohibition on intentional racial discrimination. When §2 of the Act is properly interpreted, it imposes liability only when circumstances give rise to a strong inference that intentional discrimination occurred.”
The Callais Court went on to explain that nothing in the Constitution, nor the Voting Rights Act, prevents partisan gerrymandering:
“Properly understood, §2 thus does not intrude on States’ prerogative to draw districts based on nonracial factors, including to achieve partisan advantage. In short, §2 imposes liability only when the evidence supports a strong inference that the State intentionally drew its districts to afford minority voters less opportunity because of their race. Not only does this interpretation follow from the plain text of §2, but it is consistent with the limited authority that the Fifteenth Amendment confers.”
In short, the decision recognizes that Section 2 of the VRA prevents intentional racial discrimination in redistricting, but does not require or support the creation of districts, solely on the basis of race, for the putative purpose of electing more candidates of a minority group’s preference. Indeed, the Court found the Louisiana district created for that purpose to be an unconstitutional racial preference under the 15th Amendment.
The Court also recognized the practical correlation between partisan affiliation and race. It acknowledged that Section 2 lawsuits have effectively been abused as a proxy for the Democratic Party in the areas of the country it is weak:
“[A] full-blown two-party system has emerged in the States where §2 suits are most common, and there is frequently a correlation between race and party preference…[T]his Court [previously] held that partisan gerrymandering claims are not justiciable in federal court, and this holding creates an incentive for litigants to exploit §2 for partisan purposes by ‘repackag[ing]’ a partisan-gerrymandering claim as a racial-gerrymandering claim.”
Last week, Governor Tate Reeves called a special session within twenty-one (21) days of the triggering event of Callais being decided to address the Supreme Court redistricting order from Judge Aycock.
That order, however, likely does not survive the Supreme Court’s decision and is currently on appeal to the Fifth Circuit. It seems likely that the Fifth Circuit will either overturn the Aycock decision or remand it to be re-evaluated by Aycock consistent with the Supreme Court’s decision. At a minimum, Aycock’s order should be immediately stayed and the Legislature should refrain from acting on it.
The Callais decision could also open the door to additional redistricting, including congressional redistricting. State Auditor Shad White has openly called for reconsideration of Congressman Bennie Thompson’s district. The pressure to re-evaluate districts is not unique to states dominated by Republicans. Virginia voters recently approved plans to all but eliminate Republican congressional representation in the state.
Russ Latino
