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In part 1 of this post, we explained how Callais v. Louisiana extinguished vote-dilution claims under the Voting Rights Act without admitting to doing so. But many are still asking whether the case adopted a new rule for when an electoral map violates the Fourteenth Amendment as a racial gerrymander. Once again, Justice Samuel Alito’s majority decision neither owns nor openly justifies its bottom-line ruling on this issue. Did Callais retain the old rule under which an electoral map is a racial gerrymander “only if race ‘predominated’ in the state’s decisionmaking process”? Or did Callais hold that a map is a racial gerrymander if its adoption by the legislature involved any “intentional use of race”?
Certainly, opponents of the VRA will want to claim that the opinion did the latter. But we argue here that they have a high burden to explain why such a rule is demanded by the Constitution.
Before explaining why, it helps to briefly distinguish two different grounds that existed to challenge the design of electoral districts: one statutory, the other constitutional. Statutory challenges – authorized under Section 2 of the VRA – were known as vote-dilution claims, which (prior to Callais) applied a so-called “effects” or “results” test. Under this test, an electoral map violated the VRA’s ban on vote dilution if it resulted in minority voters having less opportunity than other voters to choose their preferred representatives. Meanwhile, “racial gerrymandering” claims challenge district design under the Fourteenth Amendment. These claims apply the equal protection clause’s prohibition on racial discrimination to the drawing of electoral districts – and they purport to turn on a mental state test. That is, an electoral map violates the equal protection clause only if the state legislators were in some prohibited mental state when they adopted the map.
The Supreme Court has long articulated a mental state view of the Fourteenth Amendment, holding that the equal protection clause proscribes only actions taken with a discriminatory racial “purpose” or “intent.” But the court has not consistently explained what, exactly, the decisionmaker must intend (and which decisionmaker) such that they are engaging in unconstitutional “intentional” discrimination. Such questions are the bread and butter of substantive criminal law. The definition of a crime requires articulating both a mental state (e.g., intentional versus reckless) and the element to which the mental state applies (e.g., an assault crime could be defined as intentionally causing serious bodily harm with a deadly weapon, where the defendant only must be reckless, as opposed to intentional, with respect to the weapon being deadly).
The mental state rule defining “intentional racial discrimination” is especially muddled in the Supreme Court’s racial-gerrymandering jurisprudence. In that context, the court held that intentional discrimination occurs “only if race ‘predominated’ in the State’ decisionmaking process.” But no case has clearly explained what it takes in terms of human minds and decision-making for race to “predominate” over other districting goals.
To meet this practical challenge, the court operationalized the rule against “racial predominance” by asking whether a map matched observable patterns, which we’ll call the Pattern Rule. That rule asks: Did the creation of majority-minority districts satisfy – or at least not unduly compromise – “traditional districting criteria”? (These criteria include whether district lines have a somewhat normal shape, no disconnected parts, and preserves political subdivisions.) If so, the court could say the map was not a racial gerrymander.
Notably, this test accommodated the VRA. Maps drawn to comply with Section 2 – those drawn to incorporate an additional majority-minority district to prevent vote dilution – could satisfy the Pattern Rule, even though racial composition was among the factors considered by the mapmaker. And indeed, that was the reasoning that won the day just three years ago in Allen v. Milligan. In Milligan, the court affirmed that Alabama’s initial redistricting plan diluted Black votes under Section 2 and that the remedial, VRA-compliant maps proposed by the plaintiffs would not violate the equal protection clause. In particular, the majority reasoned that the proposed remedial map did not constitute a racial gerrymander because the two proposed majority-minority districts were drawn in a way that “comported with traditional districting criteria.”
But here is the rub. As we explain in our forthcoming article, co-authored with Charlotte Lawrence, the current court has been moving towards a rule for equal protection liability in various domains – from education to voting rights – that we call (borrowing from Glenn Loury) Race-Indifference. Race-Indifference holds that decisionmakers violate the equal protection clause whenever they (i) intend any ends that are not “race-neutral” or (ii) act with the purpose of affecting racial composition.
If Callais adopted that rule (and that is a big if), it has radical implications: any districting choice made for the purpose of conforming with the Voting Rights Act (as it was interpreted before Callais) or providing some minimal quantity of minority voting power is unconstitutional. The Pattern Rule – the court’s longstanding approach to “racial predominance” – would be defunct.
To be clear, it is far from obvious whether Callais adopted Race-Indifference. As law professor Nicholas Stephanopoulos has noted, Callais dutifully restates the Pattern Rule that Milligan applied. But in finding that Louisiana’s map violated the equal protection clause, Callais noted only that the state’s “underlying goal was racial,” because it sought to “achieve a black voting-age population over 50%” in the district at issue. Alito did not discuss whether this map otherwise “subordinated” traditional districting criteria; he stressed Louisiana’s “express” intent to avoid VRA liability by creating an additional minority opportunity district. If that intent were the basis for the court’s holding that Louisiana’s map triggered and failed strict scrutiny, it would appear that the court is adopting Race-Indifference, not the Pattern Rule, as the standard for racial gerrymandering claims.
The implications of Race-Indifference would be stunning. Set aside Justice Clarence Thomas’ (well founded!) complaints about the difficulty of ascertaining the intent of hundreds of legislators when they adopt a map. This rule transforms the Fourteenth Amendment into a sword against VRA-compliant maps. If those maps were created with an avowed goal – to comply with a statute requiring racial equality in political opportunity – they are all open to attack via Race-Indifference.
That would be an especially perverse outcome given the Supreme Court’s holding in a racial gerrymandering case from 2023, Alexander v. South Carolina State Conference of the NAACP. There, the court declared that districting for partisan control is, by assumption, a race-neutral end. Relying in part on a 2019 case (Rucho v. Common Cause) holding that partisan-gerrymandering claims are non-justiciable, the court reasoned that a legislature’s partisan districting goals should be treated on par with traditional districting criteria, such as compactness. As Alito put it, writing for the majority, “If either politics or race could explain a district’s contours, the plaintiff has not cleared its bar.” As a result, if a state legislature asserts that it has gerrymandered a map for a partisan advantage, that effectively operates as a complete defense against charges of racial intent.
Alexander thus answers the foundational question in an equal protection claim – was the government motivated by a racially “discriminatory purpose”? – with a practically irrebuttable presumption that partisan intent precludes a racial purpose. But it is obviously possible that a state can intend to concentrate Democrat voters for the purpose of diluting Black votes, just as it is possible to intend to fire all people who refuse to work on Sundays for the purpose of diluting Catholics in a workforce. Alito would launder such intentions by assuming: Whenever states declare they intend partisan gerrymandering, race does not predominate, or alternatively, that intent is assumed to be race-neutral. But if partisan-gerrymandering claims can be repackaged as racial-gerrymandering claims, then racial-gerrymandering can be hidden inside a partisan-gerrymandering package.
The upshot is that, with Alexander and Callais, Alito has set up a game of “Heads, I win. Tails, you lose.” As we explained in part 1, it is now impossible to use the VRA to challenge maps that have the effect of diluting minority votes. And, under Alexander, it is also effectively impossible to challenge such maps as racial gerrymanders absent an “express” statement that the goal was racial. Yet, if the court demands Race-Indifference in districting, then litigants are free to use racial-gerrymandering claims to force states to undo maps passed to comply with the VRA – maps granting a minimal quantum of minority voting power.
Worse still, the majority offers no principled reasoning for this position, whether originalist or otherwise. The Voting Rights Act was one of the greatest legislative achievements of a bloody Civil Rights movement against racial caste. If this statute is itself unconstitutional because of two of the greatest constitutional achievements of a bloody Civil War against racial slavery (the Fourteenth and Fifteenth Amendments) when did it become unconstitutional? If Race-Indifference governs, when did a mental state of complying with the VRA, as it was interpreted for 40 years, become illegal?
The court’s own VRA precedents demand answers to these questions. The Callais majority said that prior cases “left open whether ‘race-based redistricting’ under § 2, even if permissible when the Voting Rights Act was enacted in 1982, could ‘extend indefinitely into the future’ despite significant changes in relevant conditions.” This is a surprising statement from self-proclaimed originalists who believe that what the Constitution prohibits or allows is fixed at enactment and cannot shift with changing social circumstances. But even setting that aside, the justices are silent on what “relevant conditions” in society explain the VRA’s transformation from constitutional to unconstitutional. Why, if race is currently irrelevant to partisan politics and vice versa, has racially polarized voting persisted if not exacerbated over the past 40 years?
Ultimately, there is a deep tension in this court’s racial equal protection jurisprudence: On the one hand, the court applies strict scrutiny to eviscerate the VRA based on the premise that race is a social classification meriting heightened sensitivity in our society. This is only justified if race is today a salient vector of social and political difference, significant enough to apply the highest level of scrutiny. On the other hand, the court reasons that because of “progress” and “current political conditions,” there is no need for a statute that guarantees a minimal measure of racial political opportunity. But if that is true, there is no need for the court to interpose its judgment about when Congress or states can or can’t act for racial reasons because, by the court’s own reasoning, race is no longer any more sensitive or deserving of special scrutiny than partisanship.
The court cannot have it both ways. Either today’s “progress” means that these questions – from affirmative action to race-conscious redistricting – returns to the political process, or the very reasons that race is still subject to strict scrutiny demands that statutes like the VRA be given their full sweep.
