Supreme Court Seeks Briefing on Constitutionality of Race-Based Redistricting in Louisiana

Supreme Court Seeks Briefing on Constitutionality of Race-Based Redistricting in Louisiana

The U.S. Supreme Court on Friday directed parties in a Louisiana congressional redistricting case to brief the Court on whether intentionally creating a majority-black congressional district violates the U.S. Constitution.

The order for supplemental briefs signals the Court may want to reconsider its jurisprudence on the Voting Rights Act of 1965 (VRA).

Louisiana created the second majority-black district after the U.S. District Court for the Middle District of Louisiana found the existence of only one majority-black district likely violated the VRA.

After Louisiana complied with the Middle District’s order by passing S.B. 8, several “non-African American voters” in Louisiana challenged the new majority-black District 6 in the U.S. District Court for the Western District of Louisiana. The challengers argued S.B. 8 violated the Fourteenth and Fifteenth Amendments by improperly considering race.

The Western District agreed, declaring the new district unconstitutional for making race a predominant consideration. Louisiana then appealed the Western District’s decision to the Supreme Court.

Louisiana’s brief before the Court launched several attacks on the lower court’s decision:

1. Whether Plaintiffs failed to establish Article III standing.
2. Whether the district court majority erred in concluding that District 6 is an unconstitutional racial gerrymander.
3. Whether this case is non-justiciable.

Louisiana argued that the plaintiff “non-African American voters” lacked standing to challenge S.B. 8 because they could not assert the harm required to satisfy Article III of the Constitution. An Article III harm, the Supreme Court has held, must be “particularized,” meaning “the injury must affect the plaintiff in a personal and individual way and not be a generalized grievance.” (cleaned up)

Louisiana argued the plaintiffs failed to meet this burden because they failed to show that S.B. 8 placed them in the challenged district because of their race.

Instead, the plaintiffs’ placement was incidental to S.B. 8’s consolidation of black voters into the challenged district. Louisiana instead argued that if any voters in the new district suffered a constitutional harm, it was the black voters consolidated into the new district:

The problem here is that Plaintiffs offered no evidence to suggest that their challenge rests on anything more than a “general” objection to District 6.

* * *

They have expressly disavowed being Black voters, let alone the Black voters who were allegedly “carved” into District 6 based on their race. How, then, can they claim to have suffered an Equal Protection Clause violation from the supposed carving up of Black voters? (citation omitted)

Louisiana also argued the Western District erred in holding that Louisiana made race a predominant consideration in crafting the second majority-black district. Instead, Louisiana argued, the Middle District made race the predominant consideration by requiring Louisiana to create the district.

Louisiana also pointed to evidence from the legislative record that the state legislature only enacted S.B. 8 at the behest of the Middle District and that political—not racial considerations—predominated the debate on how to comply with the Middle District’s order. Namely, the legislature wanted to comply with the Middle District’s order in a manner that would keep prominent Republican incumbents from ending up in majority-Democratic districts:

[T]he Legislature plainly had two non-negotiable criteria: District 6 had to be majority-Black (because of [the Middle District’s decision]) and had to protect Speaker Johnson and Representative Letlow. That the incumbency-protection motivation was co-equal with—and almost certainly more important to the Legislature than—race ends this inquiry in the State’s favor.

Lastly, in passing, Louisiana urged the Court to hold that claims like the plaintiffs’ are non-justiciable, meaning the claims are not suitable for resolution by the courts.

The Court held in Rucho v. Common Cause (2019) that “[p]artisan gerrymandering claims present political questions beyond the reach of the federal courts.” Racial gerrymandering claims, however, remain justiciable.

The Court ordered supplemental briefs directing the parties to three pages of the challengers’ 57-page brief raising the question of whether intentionally creating majority-black districts violates the Fourteenth and Fifteenth Amendments of the U.S. Constitution.

The Fourteenth Amendment guarantees “the equal protection of the laws.” The Fifteenth Amendment guarantees the right to vote regardless of race.

The Court previously held in Allen v. Milligan (2023) that an Alabama redistricting plan likely violated the VRA by failing to create a second majority-black district. The holding in Milligan was narrow, focusing on whether a lower court faithfully applied the Court’s precedents in determining that Alabama likely violated the VRA:

The concern that §2 [of the VRA] may impermissibly elevate race in the allocation of political power within the States is, of course, not new. Our opinion today does not diminish or disregard these concerns. It simply holds that a faithful application of our precedents and a fair reading of the record before us do not bear them out here. (citation omitted)

The order for supplemental briefs suggests the Court may wish to consider the “concerns” that the VRA “impermissibly elevate[s] race.”

The Court originally heard arguments in the Louisiana case during the 2024–25 term but rescheduled the case for reargument during the 2025–26 term over the dissent of Justice Clarence Thomas:

Congress requires this Court to exercise jurisdiction over constitutional challenges to congressional redistricting, and we accordingly have an obligation to resolve such challenges promptly.

The order for supplemental briefs:

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