The Supreme Court questioned Monday whether Louisiana’s addition of a second majority-Black congressional district went too far and amounts to an unconstitutional racial gerrymander.
The case could impact states’ leeway to legally consider race in redrawing congressional maps upon designs being struck down under the Voting Rights Act (VRA).
It also marks the latest chapter in the long-running, messy saga over Louisiana’s congressional map that began after the 2020 census.
“Louisiana would rather not be here,” Louisiana Solicitor General Benjamin Aguiñaga told the justices.
Originally, the state’s Republican-led legislature overrode Louisiana’s Democratic governor to pass a map with only one majority-Black district. Courts struck down the design for not including a second majority-Black district after a voters sued under the VRA for not being able to elect a candidate of their choice.
At issue now is Louisiana’s newest design that boasts an additional, second majority-Black district, which the legislature approved to comply with those rulings.
A group of non-Black voters sued, arguing the design is a racial gerrymander in violation of the 14th Amendment’s equal protection guarantee, and the Supreme Court is hearing the state’s appeal after a three-judge panel agreed.
During the nearly 90-minute argument, several of the court’s conservatives raised skepticism that the courts got it right during the first stage that prompted Louisiana to draw a second majority-Black district.
“Do we have to accept Robinson?” asked conservative Justice Clarence Thomas, referring to the earlier decision.
“If you look at the face of the decision, it’s wrong,” said Justice Samuel Alito, a fellow conservative.
Later, the justice raised concerns that accepting Louisiana’s position would mean that “anything goes” in remediating a map when it is struck down under the VRA.
“Now, can that possibly be correct?” Alito said.
The court’s liberals, meanwhile, insisted that the court should not “relitigate” the earlier VRA claim and sympathized with the state that it is merely trying to follow court orders.
“They litigated Robinson a lot. They took it to the Fifth Circuit twice,” noted Justice Elena Kagan. “They litigated it a lot and at some point that’s a loss and the state decides that it has to get on with things. And that’s exactly what the state here did.”
“I just don’t know that we need to even engage in the thought process of, what if the court order was wrong,” said a second liberal, Justice Ketanji Brown Jackson. “I mean, it existed, and if it existed, then it seems to me that there is a good reason for Louisiana to have followed it.”
The basis of the new 14th Amendment lawsuit is that race impermissibly predominated when Louisiana drew its new design.
“There is nothing new or extraordinary in the fact pattern presented by this case,” said Edward Greim, the attorney representing the non-Black voters.
Louisiana acknowledges its efforts to form a second majority-Black district but stresses the design is also aimed at protecting powerful Republican incumbents in the state like Speaker Mike Johnson, House Majority Leader Steve Scalise and Rep. Julia Letlow, an Appropriations Committee member.
“Isn’t saying race was one consideration another way of saying race predominated? And how do we square that with the 14th Amendment’s promise that race should play no role?” Justice Neil Gorsuch asked at one point.
During oral arguments, Louisiana and its backers sought to argue that there was a difference between considering race when creating the congressional maps versus viewing race as the predominant factor.
“In the redistricting context, this Court has long recognized that legislators are always aware of race, and the fact that race was one thing they were considering when they drew the map does not mean it was the predominant thing, it means that it was one of many considerations that they had,” said Stuart Naifeh of the NAACP Legal Defense Fund.
“Politics was another. Communities of interest was another, and without some evidence that would disentangle those things and show that while actually race among all of those considerations the state was considering — race was the one that actually drove the lines — … the plaintiffs have not borne their burden to prove that racial predominance,” Naifeh added.
The case has created some unusual lineups. Naifeh’s group, which represents the group of Black voters who originally sued, is now supporting the Republican-led state.
And meanwhile, the federal government is not participating in the dispute, a rare stance for a major redistricting case. The Biden-era Justice Department had planned to participate to argue that the lower court committed significant legal errors in striking down Louisiana’s new map, but the Trump administration abandoned the position.
The case has major implications for the Republicans’ House majority. Before the state was required to redraw its congressional map, its House delegation included five Republicans and one Democrat. Former Rep. Garrett Graves (R-La.) opted against running for another term after his district was redrawn as the second majority Black district.
The state’s delegation now includes four House Republicans and two House Democrats.
Johnson can currently only afford to lose one vote in the House, though those numbers are expected to change once several special elections in Florida and New York take place.
If the lawsuit in Louisiana succeeds, it could offer Republicans another seat in the lower chamber – offering Johnson and his caucus more breathing room in passing legislation.
Caroline Vakil contributed to this report.
