The Supreme Court Is Poised to Trigger an Earthquake in American Politics

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The future of voting rights protection is squarely on the line at the Supreme Court in the term that opens in four weeks. Louisiana v. Callais^[2] is nominally a long-standing dispute over the drawing of that state’s six congressional districts. In reality, it may be the vehicle by which the Roberts court’s conservative supermajority will end what is left of the storied Voting Rights Act of 1965^[3], which is the best possible vehicle for challenges to racial discrimination in voting practices.

The justices heard the case last March, but instead of deciding it, they set it for reargument this coming term. In early August, the court issued a troubling order^[4] asking the parties to specifically brief the argument that Louisiana’s compliance with Section 2 of the Voting Rights Act is in fact unconstitutional under a view of the Constitution that demands complete colorblindness. Earlier this week, the state of Louisiana picked up what SCOTUS was throwing down and essentially changed sides in the litigation^[5], now taking the position that Section 2 of the VRA is unconstitutional, leaving voting rights groups to defend the VRA on their own. On this week’s Amicus Plus^[6], Dahlia Lithwick spoke with professor Richard Hasen, the Gary T. Schwartz Endowed Chair in Law, professor of political science (by courtesy), and director of the Safeguarding Democracy Project at UCLA School of Law, about the pathway to this moment and the stakes for voting rights if the court kills the VRA this term. This interview has been edited and condensed for clarity.

Dahlia Lithwick: You wrote for us at Slate that it now looks like the high court is teeing up the possibility of overruling Section 2 of the Voting Rights Act. I think because the case has twisted on forever and now seems tangled in intramural process matters, it’s hard to comprehend the enormity of what’s at stake here. Can you walk us through it?^[7]

Richard Hasen: There are lots of constraints when states have to draw district lines. One of those constraints is that they have to comply with the Voting Rights Act, which—in a state with large minority populations and racially polarized voting, where white people tend to vote for one set of candidates and Black people tend to vote for the other—you have to draw districts where Black voters or Latinos or Native Americans or Asian Americans can elect the candidate of their choice, to have the same opportunity as other voters. In earlier litigation, Louisiana was told, “Hey, you’ve got one Black-majority congressional district. You need to draw another because there’s a large Black population.” So the Louisiana Legislature reluctantly drew another district, but they did so in a way that was oddly shaped because they were trying to protect Republican incumbents, including Speaker Mike Johnson.

They drew these districts, and then they faced a new lawsuit. The Supreme Court has said it violates the equal protection clause when a state makes race the predominant factor in drawing district lines, and there’s no compelling reason to do so. And the way Louisiana v. Callais made it to the Supreme court was that the plaintiffs in that case, who didn’t like this majority-minority district being drawn, said, “You made race the predominant factor.” And the state of Louisiana came back and said, “No, we didn’t. It was all about politics, we drew the map in this particular way to protect incumbents.” And it looked like that’s how the case was going to be decided, as one in a number of cases where the court has to do what I consider to be impossible: decide whether race or party predominates in a state where most white people are Republican and most Black people are Democrats.

But something happened this spring, and the court chose not to decide that?

Right. At the end of June, the Supreme Court said, “We’re not going to decide this one. We’ll tell you in due course what we want briefing on.” And then nothing comes for over a month. And then on Aug. 1, Friday after 5 p.m., the Supreme Court puts out an oblique order that basically says, “We want to know if race-conscious districting as required by Section 2 of the Voting Rights Act could ever be a compelling interest.” It’s very clear that this was the Roberts court trying to put Section 2 of the VRA’s constitutionality at issue.

But this week, Louisiana decided it didn’t want to defend Section 2 either? The filing declares that the state “wants out of this abhorrent system of racial discrimination.”^[9]

On Wednesday, the state of Louisiana filed a brief that said, “We think Section 2 is unconstitutional. So just like how you struck down a different part of the Voting Rights Act in Shelby County, strike this one down, too.” Now it’s up to the Voting Rights plaintiffs, led by the NAACP Legal Defense Fund, to be the only ones really standing up for the constitutionality of what many people have called the crown jewel of the Civil Rights Movement, the Voting Rights Act of 1965.

Can you just explain to us what happens if Section 2 of the Voting Rights Act is no longer the mechanism by which voters can remedy racially discriminatory voting practices?

It would be an earthquake in American politics, like nothing we’ve seen before, because Section 2 applies nationwide, it applies to congressional districts, it applies to city council races, it applies to state legislative districts. Any place where legislative lines are drawn and white people and minority voters prefer different candidates—and that’s not just in the South, that’s in parts of California, that’s in places all over the country—Section 2 would no longer require race-conscious districting, and it would mean that our legislative bodies will be less diverse. They will be whiter. Now some of the people who’ve been elected before as incumbents, they’d still be able to get elected, but you’re going to see a bunch of redistricting in places where you could draw more Republican seats and squeeze out seats. Think about some of the most prominent Black members of Congress, the most prominent Latino members of state legislatures; some of these people would no longer be able to get elected. It would be huge. So I can’t even tell you what an effect Section 2 has had in assuring fair minority representation in this country, and it would be gone.

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