National Review Online
Thursday, October 16, 2025
Sixty years after the passage of the Voting Rights Act,
more than a dozen congressional districts as well as many state legislative
districts are drawn along openly racial lines for the explicit purpose of
separating voters into racial enclaves. The Supreme Court should bring an end
to this era of race discrimination in our democracy, which was the product of
misconceived judicial activism and bureaucratic overreaching. We do not need
racial gerrymandering to target a problem that recedes ever further into our past.
Nothing in the Constitution requires this. To the
contrary, as the Court has warned for decades, using race as the predominant
factor in drawing district lines violates the 14th and 15th Amendments’
guarantees of equal protection and freedom from race discrimination in voting
rights.
Neither has Congress ever enacted a requirement for
racially set-aside districts. Section 2 of the Voting Rights Act, as amended in
1982, cautions courts that “nothing in this section establishes a right to have
members of a protected class elected in numbers equal to their proportion in
the population.” At Wednesday’s oral argument in Louisiana v. Callais,
even Justice Ketanji Brown Jackson was at pains to reiterate that nothing in
Section 2 of the VRA mandates that states must draw “majority-minority”
districts.
So, how did we get here? After the Court ruled in City
of Mobile v. Bolden (1980) that the 15th Amendment and the VRA prohibited
only intentional discrimination and not practices with discriminatory effects,
Congress passed the 1982 amendment — a bipartisan measure signed by President
Reagan — to ban states from applying any “voting qualification or prerequisite
to voting or standard, practice, or procedure . . . in a manner which
results in a denial or abridgement of the right of any citizen of the
United States to vote on account of race or color.” As Justice Samuel Alito
observed in the Callais argument, Congress at the time aimed to arm
courts to ban practices with discriminatory effects while avoiding knotty
questions of what state legislatures intended.
Section 2 never even mentions the drawing of district
lines. It asks instead whether a state’s “political processes leading to
nomination or election . . . are not equally open to participation” by
members of racial groups who “have less opportunity than other members
of the electorate to participate in the political process and to elect
representatives of their choice.” As Alito wrote for the Court four years ago
in Brnovich v. Democratic National Committee (2021), “equal openness
remains the touchstone” of Section 2. In reality, every state’s political
system today is equally open, even if the outcomes of elections are often a
disappointment to voters outside of the partisan majority.
The Court’s 1986 decision in Thornburg v. Gingles applied
Section 2 to strike down the multi-member districts, which elect more than one
representative to a state legislature, that had been sustained in Bolden.
Nobody today doubts that multi-member districts reduce the political power of
minority groups. Gingles did not, however, address the requirements for
drawing single-member district maps. Unfortunately, Justice William Brennan’s
creative opinion — some of it for only a plurality of the Court, and much of it
relying on legislative history rather than statutory text — constructed a
multi-factor inquiry into topics such as racial polarization in voting that
were seized upon by subsequent courts to justify ordering the creation of
minority-majority “VRA” districts that the VRA never envisioned. Much of that work
was done not by judicial decisions but by the Justice Department, which until
the 2013 Shelby County decision had power to “preclear” state maps.
Inevitably, many states complied with expectations set by DOJ even when they
were inconsistent with the Constitution and the law.
The result, for the past four decades, is that states
have been pulled between two contradictory commands: They are told that the
Constitution bans them from considering race in drawing maps, but also that the
VRA requires it. Louisiana has been caught in this catch-22: It created a
second majority-black district in response to a VRA lawsuit, only to be sued in
Callais for racial gerrymandering.
During the Jim Crow era, voting-rights battles were often
waged on racial lines between white and black Democrats. Yet, in today’s
America, most of what is characterized as racial is actually partisanship. The
Court’s decision in Rucho v. Common Cause (2019), ruling that partisan
gerrymanders are beyond the power of federal courts to remedy, has freed state
legislatures to admit openly their true partisan motives in mapmaking. That
makes the VRA districts a racial anomaly: Largely white political minorities
such as Democrats in West Virginia and Iowa or Republicans in Connecticut or
Massachusetts have no right to ask for the same set-aside districts as black
Democrats in Alabama or Louisiana.
The Court failed to resolve the tension between the
Constitution and the VRA in requiring a second black-majority district in
Alabama in Allen v. Milligan (2023), but Justice Brett Kavanaugh’s
concurrence in the 5-4 Milligan decision signaled that he was open to
considering whether the extraordinary remedy of racial gerrymandering can be
authorized by Congress in perpetuity without violating the Constitution. Callais
is being argued for a second time to answer that question directly. It’s
similar to the one the Court answered in the negative in Shelby County and
in racial-preference cases in college admissions.
The Court’s liberals stressed that majority-minority
districts are not an outdated congressional mandate but rather a current remedy
tailored by courts to current discriminatory conditions. This is a fiction.
Racially gerrymandered maps are frequently adopted by state legislatures to
avoid litigation, or in some cases due to partisan motives to pack black voters
into uncompetitive districts — not as judicial remedies after a finding of
discriminatory effects. Also, lawsuits demanding the creation of VRA districts
often rely upon evidence from long in the past. Louisiana, for example, had its
previous map precleared by DOJ for decades before a court decided that it was a
legacy of old discrimination. Jackson rather preposterously compared it to a
handicap-inaccessible building. Even if the Court does not outright end the
practice of racial line-drawing, it could do much good by insisting that it
should occur only after a rigorous, fresh showing of ongoing discrimination
that is distinct from the simple reality that a minority group is in the
partisan minority.
Justice Kavanaugh and some of his colleagues have
expressed concern that doing so might offend the principles of stare decisis,
because the Court usually leaves even mistaken reading of statutes to be fixed
by Congress. But that consideration is different when the statute collides with
the Constitution. Gingles is also not holy writ; the Court need not
overrule one of its precedents in order to conclude that its reasoning has been
abused when imported into a distinct context. In Brnovich, the justices
concluded that “a fresh look at the statutory text is appropriate” when
applying Section 2’s language in a context different than the one in Gingles.
If black voters lose a few members of the Congressional
Black Caucus in some states as a result, they may also find themselves as
players in competitive elections for the first time in others. The 2024
election is just one sign that racial voting patterns are being eroded by other
trends and fault lines in our society. And an end to formal majority-minority
districts is apt to matter less in state legislatures, where smaller districts
make it harder to draw monolithically partisan maps.
The Court can close the book on a chapter in our law that
never had sanction in the Constitution or federal statutes. It should do so.
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