[D]ue to our Janus-like election-law jurisprudence, States do not know how to draw maps that “survive both constitutional and V[oting] R[ights] A[ct] review.”

—Justice Clarence ThomasREF

No words in the Constitution were purchased with the staggering amount of blood and treasure as the Civil War Amendments were…. All three…were a rainbow after the storm, but particularly so the Fifteenth Amendment. It contained the simple elegant promise that the right to vote, to allocate power, could never be allocated again using the wicked tool of race…. Efforts to realize the dream of the Civil War Amendments saw moments of hope, such as the passage of the Voting Rights Act of 1965, collapse into race based legislative line drawing of the sort challenged here.

—Public Interest Legal FoundationREF

The Supreme Court of the United States has an opportunity in Louisiana v. Callais to stop the misuse of Section 2 of the Voting Rights Act of 1965 by federal courts to justify unconstitutional, race-based drawing of political boundary lines that violates both the Equal Protection Clause of the Fourteenth Amendment and the racial prohibition in the Fifteenth Amendment. Such line-drawing should be permissible only when there is evidence of current (not decades-in-the past) intentional racial discrimination, and the judicial remedy should go no further than correcting that specific discriminatory conduct.REF

The Supreme Court ought to direct lower courts to distinguish between political and racial motivations, because too many judges are failing to do so and are mistakenly finding Section 2 violations for legislative boundary lines that were drawn based on political considerations, not race. Because they are outmoded and no longer fit current conditions, the Court also ought to modify the Senate factors outlined by the Supreme Court in Thornburg v. Gingles that it directed courts to use when determining whether the “totality of the circumstances” requirement under Section 2 has been met.REF

Moreover, a court should not consider the proportionality of a racial minority within the general population of a state, as occurred in this case, as evidence of a violation of Section 2 because the law specifically bars such consideration.

Louisiana v. Callais: Procedural History

Although the present case arose out of redistricting that occurred after the 2020 census, it is important to understand the background of redistricting in Louisiana because, as the philosopher George Santayana famously said, “Those who cannot remember the past are condemned to repeat it.”REF After the 1990 census, Louisiana was apportioned seven congressional seats. The legislature created two majority-black districts, one of which encircled New Orleans and the other “[l]ike the fictional swordsman Zorro, when making his signature mark…slash[ed] a giant but somewhat shaky ‘Z’ across the state.”REF

A federal court concluded that the 1990 redistricting plan violated the Equal Protection Clause of the Fourteenth Amendment, as did a replacement plan that was drawn by the legislature. That new plan once again created a second majority-black district that “was long and narrow and slashed 250 miles in a southeasterly direction from Shreveport down to Baton Rouge” and was aptly described as “an inkblot which has spread indiscriminately across the Louisiana map.”REF

After a series of appeals that went up to the Supreme Court with remands back down to the district court, the result was another finding by a district court that the legislature’s plans were racial gerrymanders that violated the Equal Protection Clause. The district court eventually drew a new congressional plan for the state.REF

Louisiana lost a congressional seat after the 2010 census but created one majority-black district when it redrew the state’s congressional seats. After the 2020 census, the legislature redistricted the six congressional seats, including maintaining the majority-black district that it had created after the 2010 census and that once again encircled New Orleans.

However, the state was sued by black voters who claimed that the legislature’s failure to create a second majority-black district violated Section 2 of the Voting Rights Act. In a decision that seemed to be based largely on evidence of discrimination decades in the past and the fact that blacks constitute about a third of the state’s population, a district court judge in the Middle District of Louisiana issued a preliminary injunction against the 2020 plan, claiming that the plaintiffs were likely to win on their claim that the failure to create a second majority-black district was a violation of Section 2.REF

The legislature responded by passing a new plan creating a second “highly irregular” majority-black district that looked remarkably similar to the second majority-black district that courts had found violated the Equal Protection Clause in the prior Hays litigation in the 1990s.REF It also stretched “250 miles from Shreveport in the northwest corner of the state to Baton Rouge in southeast Louisiana, slicing through metropolitan areas to scoop up pockets of predominantly Black populations from Shreveport, Alexandria, Lafayette, and Baton Rouge.”REF

A new set of plaintiffs sued the state again, this time in the Western District of Louisiana where the case was assigned to a three-judge panel, which is standard in voting rights challenges to redistricting plans. The new challengers claimed that this second majority-black district was a racially gerrymandered district that violated the Equal Protection Clause of the Fourteenth Amendment as well as the Fifteenth Amendment since it had been intentionally drawn up to discriminate against voters “based on racial classification across the State of Louisiana.”REF

The Western District court agreed with the plaintiffs and on April 30, 2024, issued a two-to-one decision holding that the newly created second district was an unconstitutional racial gerrymander created by the legislature solely to satisfy the Middle District litigation. This second congressional district, concluded the court, did not comply with any traditional districting principles such as compactness and contiguousness, “divides some established communities of interest from one another while collecting parts of disparate communities of interest into one voting district,” “divides the four largest cities and metropolitan areas in its path along clearly racial lines,” and “violates the boundaries of nearly all major municipalities in the State.”REF

In reaching this conclusion, the majority noted that it had reviewed the entire legislative record and that the “intent of the Legislature” from “numerous comments during the Special Session” was clear: The legislature intended to draw up a second majority-black district that would end the litigation against the state.REF

Those comments included one from the Senate sponsor of the bill that drew the second district, Glen Womack, who stated that “we all know why we’re here. We were ordered to draw a new black district and that’s what I’ve done.”REF Representative Beryl Amedee specifically asked whether the bill being considered was “intended to create another Black district,” and Representative Beau Beaullieu during his presentation on the bill responded, “yes, ma’am, and to comply with the judge’s order.”REF Representative Rodney Lyons, Vice Chairman of the House Governmental Affairs Committee, stated that the legislature’s “mission that we have here is that we have to create two majority-Black districts.”REF

The conflicting decisions of two separate federal courts and the actions of the Louisiana legislature in response to the district court’s original preliminary injunction requiring a second majority-black district finally reached the Supreme Court in 2024.

The Constitution and Section 2 of the Voting Rights Act

On June 27, 2025, months after hearing oral arguments, the Supreme Court rescheduled consideration of Callais for its new 2025–2026 term instead of issuing a decision. On August 1, it issued an order directing the parties to file supplemental briefs addressing whether “the State’s intentional creation of a second majority-minority congressional district violates the Fourteenth or Fifteenth Amendments to the U.S. Constitution.” Oral arguments were held on October 15.

Under Section 1 of the Fourteenth Amendment, no person may be denied “the equal protection of the laws.” This has been applied by the Supreme Court in the redistricting context to mean that it is a violation of equal protection when race is the primary factor used to draw boundary lines in a way that ignores normal rules that apply to redistricting such as contiguity and compactness.

As the Supreme Court said in Shaw v. Reno, an equal protection claim arises when a redistricting “scheme is so irrational on its face that it can be understood only as an effort to segregate voters into separate voting districts because of their race, and that the separation lacks sufficient justification.”REF According to the Court:

Racial classifications of any sort pose the risk of lasting harm to our society. They reinforce the belief, held by too many for too much of our history, that individuals should be judged by the color of their skin. Racial classifications with respect to voting carry particular dangers. Racial gerrymandering, even for remedial purposes, may balkanize us into competing racial factions; it threatens to carry us further from the goal of a political system in which race no longer matters—a goal that the Fourteenth and Fifteenth Amendments embody, and to which the Nation continues to aspire.REF

The Fifteenth Amendment provides that the right “to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.” Both amendments have the same provision giving Congress the power to enforce the amendments through “appropriate legislation.”

The Supreme Court has made it clear that the Fourteenth Amendment bans only disparate treatment, not actions undertaken by a state without regard to race that have only a disparate impact. In Village of Arlington Heights v. Metropolitan Housing Development Corp., the Court reiterated that its decision in an earlier case, Washington v. David,REF “made it clear that official action will not be held unconstitutional solely because it results in a racially disproportionate impact.”REF In City of Boerne v. Flores, the Court held that Congress could not use its enforcement authority under the Fourteenth Amendment to ban action that results in a disparate impact unless the ban has a “congruence and proportionality” to the end of ensuring no disparate treatment.REF

A plurality of the Court in City of Mobile v. Bolden reached the same conclusion with respect to the Fifteenth Amendment, stating that the “Amendment prohibits only purposefully discriminatory denial or abridgment by government of freedom to vote ‘on account of race, color, or previous condition of servitude.’”REF There is no reason to believe that Congress’s enforcement authority would be different under the Fifteenth Amendment since the two post-Civil War Reconstruction amendments were ratified within 19 months of each other with nearly identical enforcement clauses and were intended to protect the rights of freed slaves. Both have been used since then to protect the voting rights of all citizens.

Section 2 of the Voting Rights Act, which was the “appropriate legislation” enacted to carry out the protections of the amendments, provides that:

(a) No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgment of the right of any citizen to the United States to vote on account of race or color….

(b) A violation of subsection (a) of this section is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) of this section in that its members have less opportunity than other members of the electorate to participate in the political process and elect representatives of their choice.REF

However, there is a very important warning in Section 2 that is seemingly being ignored by the courts. Part (b) states 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.” In an opinion dissenting from the Court’s decision to carry over the Callais case for reargument this term rather than issuing an opinion last term, Justice Clarence Thomas chastised the Supreme Court for its 2023 decision on Alabama’s congressional districts, which he says “blessed the plaintiffs’ efforts to use § 2 of the [Voting Rights Act] to achieve ‘a proportional allocation of political power according to race’ through the creation of a second majority-black congressional district in Alabama’” in direct contravention of this prohibition.REF

The seminal case on the application of Section 2 in redistricting cases is Thornburg v. Gingles.REF Under Gingles, three preconditions must be met before a court can consider whether there is a violation of Section 2 under the “totality of the circumstances.”

• The minority group claiming a violation “must be sufficiently large and [geographically] compact to constitute a majority in a reasonably configured district,” with “reasonably configured” defined as comporting with such traditional districting criteria as being contiguous and reasonably compact.REF
• The “minority group must be able to show that it is politically cohesive.”REF In other words, the minority group engage in racially polarized voting by voting as a bloc for the same candidate.
• The “white majority votes sufficiently as a bloc to enable it…to defeat the minority’s preferred candidate.”REF

What has always been odd about this application of the Voting Rights Act and the Gingles preconditions is that it punishes one group of voters for engaging in racially polarized voting while rewarding another group of voters for engaging in racially polarized voting.

Once these preconditions have been met, evaluating whether the “totality of circumstances” shows a Section 2 violation—that is, that the political processes are not “equally open to participation” by members of a particular raceREF—involves a court’s analyzing a list of factors drawn from a legislative report issued by the Senate Judiciary Committee when Section 2 was amended in 1982. This non-exclusive list of factors includes:

1. The extent of any history of official discrimination in the jurisdiction that touched the right of minorities to register, vote, or otherwise participate in the electoral process;
2. The extent to which voting in elections is racially polarized;
3. The extent to which the jurisdiction has used unusually large election districts, majority vote requirements, anti–single shot provisions,REF or other voting practices that may enhance the opportunity for discrimination;
4. Whether minority candidates have been denied access to any candidate slating process;
5. The extent to which the effects of discrimination in education, employment, and health hinder the ability of minorities in the jurisdiction to participate effectively in the political process;
6. Whether political campaigns have been characterized by overt or subtle racial appeals;
7. The extent to which minorities have been elected to public office;
8. Whether there is a significant lack of responsiveness by elected officials to minorities; and
9. Whether the policy behind the use of the voting practice in question is tenuous.REF

In 2013, when evaluating Sections 4 and 5 of the Voting Rights Act, the Supreme Court also made it very clear that “the Act imposes current burdens and must be justified by current needs.”REF It is therefore completely inappropriate for judges to use discrimination that occurred decades ago to find a current violation of Section 2 of the Voting Rights Act or any other section of the law that would justify—for example in redistricting—using race to remedy past discrimination that no longer has any effect today.

The three-judge panel in Callais laid out the conflict between federal law and the Constitution thus: “The Voting Rights Act protects minority voters against dilution resulting from redistricting maps that ‘crack’ or ‘pack’ a large and ‘geographically compact’ minority population” while “the Equal Protection Clause applies strict scrutiny to redistricting that is grounded predominately on race.”REF

Applying Section 2 and the Fourteenth and Fifteenth Amendments in Louisiana v. Callais

As Justice Thomas pointed out in his dissent to the rescheduling of Callais for reargument during the 2025–2026 term, the Supreme Court has wrongly “construed § 2 to require race-based districting under circumstances that do not remotely approximate the racial discrimination that such districting is supposed to remedy.”REF Moreover, the Court has effectively—and improperly—established a rule for Section 2 so that:

If voting is racially polarized in a jurisdiction, and if there exists any more or less reasonably configured districting plan that would enable the minority group to constitute a majority in a number of districts roughly proportional to its share of the population, then the jurisdiction must ensure that its districting plan includes that number of majority-minority districts “or something quite close.”REF

Thus, according to Thomas, it is “difficult to see how § 2 imposes any real barrier to a district court providing a race-based remedy.”REF Instead, per Thomas, the Supreme Court’s mistaken jurisprudence is that:

[W]henever a State feasibly can create an additional majority-minority district, it must do so—at least up to the point of racial proportionality—even though the conditions triggering racialized redistricting are utterly divorced from the sort of “specific, identified instances of past discrimination” that this court demands to justify a race-based remedy.REF

Applying Section 2 in such a manner is “not congruent and proportional to any provisions of the Reconstruction Amendments” and is a conflict “too severe to ignore.”REF

Additionally, as Professor James Blumstein, who provided crucial testimony in 1982 when Section 2 was amended, points out in his amicus brief filed in the Callais case, the Supreme Court has “neglected in subsequent claims of vote dilution under Section 2” the requirement it outlined in 1991 in Chisom v. Roemer.REF Under Chisom, he says, a “claim of vote dilution does not rest on a freestanding, substantive principle of race-based entitlements.” Only after challengers have met the “burden of establishing a lack of evenhanded opportunity to participate in the political process…may a court consider the question of vote dilution.”REF Here there was no evidence that black residents were unable to participate in the political process, yet the lower court entered a preliminary injunction that prompted the state legislature to create a second majority-black district.

Modifying the Senate Factors

Some of the Senate factors outlined in the Gingles decision are simply no longer useful in analyzing potential Section 2 violations and in fact can lead to erroneous conclusions that a violation has occurred. Those factors should be reconsidered by the Court.

Senate Factor 1. Senate Factor 1—the extent of any history of official discrimination in the jurisdiction that touched the right of minorities to register, vote, or otherwise participate in the electoral process—should be modified. Such discrimination is ancient history in the vast majority of jurisdictions. No legal or practical barriers currently prevent minorities from registering, voting, or otherwise participating in the election process anywhere in the United States.

The fact that black voters may have been prevented from registering to vote in 1965 has no bearing whatsoever on their ability to register and vote today under the National Voter Registration Act and updated state registration laws, which include online registration in the majority of states. The same is true of the ability to cast a ballot and vote; there simply are no cases today of voters being kept physically from entering polling places to vote. Moreover, absentee ballots are uniformly distributed to voters under applicable state election laws without regard to race or ethnicity everywhere in the country.

Both the Voting Rights Act and the National Voter Registration Act, as well as other laws such as the Help America Vote Act, have been remarkably effective in ending the type of discrimination that was occurring in 1965. As indicated above, what happened 60 years ago has no discernible effect on the ability of minorities to register, vote, or otherwise participate in the electoral process today.

As the Supreme Court explained in 2013 in Shelby County v. Holder, the Voting Rights Act’s encroachment on the constitutional authority of states to regulate their elections cannot be based on “decades-old data and eradicated practices.” They can be justified only by “current needs” to prevent discrimination.REF

This factor should be modified so that only evidence of current and ongoing electoral discrimination can be considered by a court as a relevant factor in evaluating whether a Section 2 violation has occurred.REF

Senate Factor 5. Another factor that should be discarded by the Court is Senate Factor 5—the extent to which minorities bear the effects of discrimination in education, employment, and health that hinder their ability to participate effectively in the political process. This factor assumes wrongly that systematic, widespread discrimination in education, employment, and health services—all of which is barred by applicable federal and state laws—affects significant numbers of minorities. There may be isolated examples of such discrimination with regard to specific individuals, but the general presumption of widespread discrimination that underlies this factor is not supported by any credible evidence.

This broad, vague standard provides too much leeway for paid “experts” to influence the courts with unreliable opinions based on the bias and prejudices of those experts. Only actual, existing legal and regulatory barriers that prevent minorities from participating in the political process should be considered by a court.

Senate Factor 6. Senate Factor 6 should be limited by the Court. This factor directs courts to examine whether political campaigns have been characterized by overt or subtle racial appeals. The problem with that approach is that it imposes liability on a defendant or group of defendants for racial appeals that were made by third parties over which the defendants have no control.

If, for example, no racial appeals are made by the candidates running for congressional office, by the political parties they represent, or even by any of the legislators who voted for a particular law or redistricting plan that is being targeted but such appeals were made by an independent political action committee, that PAC’s actions could be used to tar the defendants. Under this factor, that PAC’s reprehensible behavior can be used to find a Section 2 violation, and this raises questions of fundamental fairness and due process.

Senate Factors 7 and 2. The Court should make it clear that Senate Factor 7—the extent to which minorities have been elected to public office—must include minority candidates no matter which political party they represent. Too many courts seem to consider only the extent to which minority candidates who represent the Democrat Party are elected to office, disregarding the increasing electoral success of Republican minority candidates who are black, Hispanic, or Asian. This reflects an almost racist mindset that minorities who are Republicans or conservative are somehow not “true” representatives of their race or ethnic background.

The Supreme Court should also make it clear that when examining the number of minority candidates who have been elected, courts should not compare that number to the ratio of the minority population in the jurisdiction. The fact that Hispanics, for example, make up 10 percent of the elected officials of a county that has a general or voting-age population that is 40 percent Hispanic should not be considered as showing a violation of Section 2 under Senate Factor 7.

The same reasoning must be applied to Senate Factor 2—whether voting is racially polarized. Too many courts are failing to distinguish between racially versus politically polarized voting. If, for example, black voters are failing to elect their candidates of choice because they overwhelmingly vote for Democrat candidates in a Republican-majority district, they are losing elections because of their political choices, not because of their race.

If the political process is open and nondiscriminatory, the mere inability to influence or win an election or to elect minority candidates is not a violation of Section 2. As Professor Blumstein argues correctly, racial minorities and other voters have to participate in the same “rough-and-tumble political process,” and having an equal opportunity is all that is required.REF Section 2 does not guarantee success at the ballot box. The Supreme Court must provide courts with a sharp directive that there is no Section 2 violation when minority voters are losing elections because of their political alignment.

Senate Factor 8. Finally, Senate Factor 8—the extent to which there is a significant lack of responsiveness by elected officials to minorities—is so vague and bereft of any standards by which to make a viable determination that it should be discarded by the Supreme Court or rigorously defined. How is a court supposed to judge that without getting into forbidden partisan, political, policy judgments?

If, for example, an elected official takes a principled position on a certain issue and polling shows only 40 percent of minority voters agree with the official on that issue, and if the official refuses to change his or her position, is that a significant lack of responsiveness to minority voters, or is the official doing what he or she believes is in the best interests of constituents? Is the judge supposed to decide which position is in the best interests of minority voters? To make judgments on public policy issues?

If an elected official’s office refuses to help constituents with a particular issue, such as Social Security problems, because the official does not believe his office should interfere in decisions made by executive branch agencies, is that a significant lack of responsiveness? Does it matter that his office takes that position with regard to all of his constituents, regardless of their race, if a “significant” portion of his constituents are minorities?

And how large is “significant”? Is it 10 percent? Is it 30 percent? Or does it have to be a majority of the official’s minority voters? There are no justiciable standards that do not bring a judge into the unacceptable role of substituting his or her judgment for that of elected officials with respect to how they should carry out their duties to their constituents and voters and what their policy positions should be to further the “best” interests of minority voters.

Conclusion

The key to correcting the problems resulting from legislatures and courts misinterpreting and misapplying Section 2 of the Voting Rights Act is for the Supreme Court to modify the Senate factors to reflect current conditions and recent history so that it can distinguish between remediating clear current discriminatory conduct in the redistricting process, which is proper, and using racially motivated redistricting to achieve a party’s political objective and benefit a class of individuals based on proportional racial representation, which is improper. As the three-judge panel in Callais concluded when it threw out the “impermissible racial gerrymander,” quoting from an earlier Louisiana case:

[T]he long struggle for civil rights and equal protection under the law that has taken place in Louisiana and throughout our country, includes [citizens in] countless towns across the South, at schools and lunch counters, at voter registrar’s offices. They stood there, black and white, certain in the knowledge that the Dream was coming; determined that no threat, no spittle, no blow, no gun, no noose, no law could separate us because of the color of our skin. To say now: “Separate!” “Divide!” “Segregate!” is to negate their sacrifice, mock their dream, deny that self-evident truth that all men are created equal and that no government may deny them the equal protection of its laws.REF

The Supreme Court has the opportunity in Callais to stop the separation, division, and segregation that federal courts are sanctioning in redistricting cases throughout the nation using both proportionality and what happened decades ago as justification. The Court should reiterate emphatically that Section 2 of the Voting Rights Act never requires race to predominate in the drawing of congressional or any other type of legislative districts at the sacrifice of traditional districting principles and that doing so is a blatant violation of the Fourteenth and Fifteenth Amendments.

Hans von Spakovsky is Manager of the Election Law Reform Initiative and Senior Legal Fellow in the Edwin Meese III Center for Legal and Judicial Studies at The Heritage Foundation.