WASHINGTON — Legal scholars say it’s possible the U.S. Supreme Court could use the redistricting case that will determine whether Louisiana sends one or two Black representatives to Congress as a vehicle to invalidate 60-year-old civil rights protections.
Last year, the Supreme Court heard arguments in Louisiana v. Callais on how best to balance Section 2 of the Voting Rights Act, which allows configuring districts in a way that minorities have an opportunity to elect one of their own, and the Equal Protection Clause, which forbids creating districts based on race.
The high court punted a decision last term and asked for new arguments on whether Section 2, the remaining legal tool to enforce the Voting Rights Act, is now obsolete, thus violating the 14th and 15th amendments to the U.S. Constitution.
“As sad as it is, it makes perverse sense that the conservative Supreme Court of this era will use this moment to kill Section 2 of the VRA,” wrote Marc Elias of Democracy Docket, a liberal-leaning group that tracks election law.
If the court does as Elias suggests it might, Louisiana could lose both of its Black majority congressional districts — the 2nd District represented by U.S. Rep. Troy Carter, D-New Orleans, and the 6th District represented by U.S. Rep. Cleo Fields, D-Baton Rouge — and revert to six congressional districts configured to ensure the election of six White Republicans.
“If that happens, it would likely amount to the largest decline in minority representation” since the late 1800s, when Southern Whites reassumed government authority after the Civil War and promptly disenfranchised Black voters, said Harvard Law School Professor Nicholas Stephanopoulos during a podcast hosted by the National Constitution Center, a nonpartisan, nonprofit chartered by Congress to increase awareness of the U.S. Constitution.
“I’m not sure if people have really come to terms with how seismic this change could be,” Stephanopoulos said. “The court looks like it’s now interested in a broader holding in Callais, but all of the narrower options still remain available and maybe hopefully will look more attractive to the court when it really stares at the prospect nullifying Section 2.”
Nobody will know the full result until the nine justices release their decision.
Still, observers who follow the Supreme Court closely say the tea leaves of judicial actions often suggest possible outcomes.
Certainly, that was on the mind of Louisiana House Speaker Phillip DeVillier. The Eunice Republican texted Louisiana House members to keep their schedules flexible between Oct. 23 and Nov. 13 in case the Supreme Court decision requires state legislators to redraw election district maps.
Legal scholars say the high court’s decision — particularly setting an early Oct. 15 hearing — signals that the 6-3 conservative majority might be ready to set aside one of the last major civil rights protections from the 1960s.
“Did they rush the argument in this case to increase the odds of a decision that would enable more anti-Democratic racial gerrymandering before the 2026 midterm elections? We cannot rule that out,” Katherine Ann Shaw, a professor at the University of Pennsylvania Law School, said on the Strict Scrutiny podcast.
The 14th Amendment to the U.S. Constitution, ratified in 1868, ensured citizenship and due process for the formerly enslaved population. The 15th Amendment followed in 1870 to protect those rights with prohibitions against denying the right to vote based on “race, color, or previous condition of servitude.”
But those amendments weren’t enforced in the South for another century.
In 1965, a bipartisan Congress passed the Voting Rights Act focused on policies and procedures that kept African Americans from registering and voting.
As time passed and the more overt forms of racism subsided, courts began finding that parts of the Voting Rights Act were no longer necessary.
Section 2 doesn’t require minority-majority districts. What is mandated, under provisions pushed by Republican President Ronald Reagan in 1982, is that states with histories of polarized voting and diluting minority voices must allow minority-majority districts if, generally, voters with like interests live close enough together.
Section 2 only kicks in if a state meets a list of conditions, such as a history of White majorities never electing a Black candidate — as is the case in Louisiana.
When conditions such as segregated communities and polarized voting cease to exist — as has happened in parts of the northeast and west — Section 2 no longer applies.
Similar provisions are in other laws, and dumping Section 2 could lead to legal challenges to protections for employment, housing and disabilities, which may be a bridge too far for the Supreme Court at this point, legal scholars agreed across several different podcasts and seminars.
Still, Justice Brett Kavanaugh has indicated — and Justice Clarence Thomas has stated outright — that the Constitution doesn’t allow for race to be a part of any legal decisions, even though for a short time race was included to ensure Black participation in government and politics where state policies had previously forbidden any.
Basically, the argument is that “racial relations are generally better and it no longer can be justified under our constitutional separation of powers, the general authority that states have to redistrict and the fact that the 14th amendment prohibits discrimination on the basis of race,” said Bradley Smith of Capital University Law School in Columbus, Ohio, and chair of the Federal Election Commission under Republican President George W. Bush.
“Classifying voters on the basis of race and requiring it by law would seem to violate the 14th Amendment and in a way that is no longer justified. That’s the $64,000 question facing the court,” Smith added.
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