While the battle between Republican- and Democrat-led states to redistrict ahead of the 2026 midterm continues to heat up, a case with major implications for the issue is quietly flying under the radar at the U.S. Supreme Court.

Late last week, the justices issued an order in a case known as Louisiana v. Callais. Set to be decided in the court’s 2025-2026 term, the matter revolves around a dispute involving Section 2 of the 1965 Voting Rights Act and the alleged prioritization of race when drafting Louisiana’s most recent congressional map.

In its order, the high court signaled that it would offer a definitive ruling on if the use of race when creating legislative districts violates the U.S. Constitution. More specifically, the justices instructed parties in the case to file supplemental briefs addressing the question of “[w]hether [Louisiana’s] intentional creation of a second majority-minority congressional district violates the Fourteenth or Fifteenth Amendments …”

Speaking with The Federalist, Heritage Foundation senior legal fellow Hans von Spakovsky noted how the Louisiana case offers the Supreme Court a significant opportunity to address longstanding confusion within the judicial system on how to deal with race in the redistricting process.

“If they come down the correct way … the huge litigation fights that seem to happen after almost every redistricting process will diminish greatly,” von Spakovsky told The Federalist.

Background

The origins of Louisiana v. Callais can be traced back to spring 2022, when the Louisiana Legislature passed a congressional map that included a single black-majority district. This prompted a coalition of black voters — represented by left-wing organizations such as the ACLU — to sue.

In their lawsuit (Robinson v. Ardoin), plaintiffs alleged that the new map “dilutes Black voting strength in violation of [Section 2 of] the Voting Rights Act of 1965 … by ‘packing’ large numbers of Black voters into a single majority-Black congressional district, and ‘cracking’ the State’s remaining Black voters among the five remaining districts, where they constitute an ineffective minority unable to participate equally in the electoral process.” A district court judge agreed plaintiffs’ arguments were likely to succeed on the merits and issued an order on June 6, 2022, preventing the map from going into effect. It also directed the legislature to redraw the map by June 20.

While the U.S. Supreme Court placed a temporary stay on the lower court’s order, continued litigation resulted in the legislature redrawing the map to include a second black-majority congressional district. This prompted a separate lawsuit (Louisiana v. Callais) from a different group of Louisiana residents, who alleged that the new map violated the 14th Amendment’s equal protection clause by “prioritizing race in its creation,” as summarized by Oyez.

As The Federalist previously reported, “A three-judge federal district court panel agreed with the [latter] plaintiffs’ arguments that the creation of a second majority-black district represented an unlawful racial gerrymander and blocked the map’s use for future elections in April 2024.” The ruling was paused the following month by the Supreme Court, which decided to take up the case later that year.

While originally expected to issue a verdict in its 2024-2025 term, the high court announced on the last day of the term that it would be rehearing arguments in the case during its 2025-2026 session.

Judicial Confusion

The wide-ranging judicial verdicts on Louisiana’s redistricting plans may appear chaotic. But according to von Spakovsky, they perfectly encapsulate how courts’ varying interpretations of Section 2 of the Voting Rights Act (VRA) have caused headaches for state lawmakers in the redistricting process.

“The main purpose of Section 2 — which said you can’t discriminate on the basis of race in the voting context — [has] been achieved. The problem is that several decades ago, once all that discrimination ha[d] been basically stopped and cleared out, Section 2 became a tool in the redistricting process,” von Spakovsky said. “Rather than dealing with what Section 2 was supposed to do … [it has] instead started being used in the context of, ‘Well it’s a violation of the law if you dilute someone’s vote.’ Well, what does that mean?”

Congress amended Section 2 in 1982 to seemingly attempt to clarify this point. According to the Justice Department, federal lawmakers “concluded that Section 2 should be amended to provide that a plaintiff could establish a violation of the section if the evidence established that, in the context of the ‘totality of the circumstance of the local electoral process,’ the standard, practice, or procedure being challenged had the result of denying a racial or language minority an equal opportunity to participate in the political process.”

Von Spakovsky noted how that “amorphous standard” didn’t provide any concrete guidance for courts dealing with Section 2 challenges over redistricting in the decades that followed. This includes the Supreme Court, which ruled on the legality of a racially gerrymandered North Carolina congressional map in its 1993 Shaw v. Reno case.

As summarized by von Spakovsky, the high court’s Shaw decision effectively said that “race cannot be the predominant factor when you do redistricting. If you do that, you’re violating the equal protection clause of the 14th Amendment” [emphasis added].

“What[‘s] happened [is] state legislators have been put into this quandary. I call it the ‘Goldilocks rule’ of redistricting, [where] if they use too much race when they’re drawing boundary lines, then the courts are gonna say, ‘Under Reno v. Shaw, you violated equal protection because race was the predominant factor,'” von Spakovsky said. “On the other hand, the way Section 2 has been interpreted about diluting votes and making sure that minority voters can elect their candidate of choice, if they don’t use some amount of race in creating districts, then the claim’s going to be they violated Section 2. So, they have to weave this line in between using too much race and not using enough race when they’re drawing [district] lines.”

Von Spakovksy noted that this problem has been further compounded by how courts have “confused politics with race.” That is, some judges have shown limited understanding of the fact that when a significant majority of a certain racial demographic overwhelmingly favors a certain political party, state legislatures will draw districts based upon those voting patterns to advantage their party.

“A legislature may have [drafted a map] entirely for political purposes — political gerrymandering, which is perfectly constitutional. But some judge looks at it and says, ‘Oh well, you were engaging in racial discrimination because you were moving black voters around,’ even though that wasn’t their purpose. It’s just that black voters tend to vote for Democrats,” von Spakovsky said.

The Road Ahead

While still plaguing courts nationwide, von Spakovsky opined that last week’s SCOTUS order is a good indicator that a majority of the justices are willing to put these outstanding issues to bed. He notably pointed to a recent opinion authored by Associate Justice Clarence Thomas, who dissented from the high court’s decision to punt the Louisiana case to its 2025-2026 term.

Underscoring the urgency of needing to address such issues, Thomas noted that these cases “highlight the intractable conflict between this Court’s interpretation of §2 of the Voting Rights Act of 1965 … and the Equal Protection Clause of the Fourteenth Amendment to the Constitution.”

“The Constitution is supreme over statutes … and no intervening developments will change that,” Thomas wrote. “I thus see no reason to avoid deciding these cases now. In doing so, I would make clear that where this Court’s interpretation of §2 breaches the Constitution’s equal protection guarantee, the Constitution controls.”

Von Spakovsky argued that the ideal outcome in Louisiana v. Callais would be for SCOTUS to definitively declare that “race should never be a factor in redistricting.” He predicted such a ruling will “free up a lot of legislatures to totally exclude racial data from the data they use for redistricting” and “reduce the amount of litigation we see in the redistricting area.”

Assuming the high court’s three Democrat appointees oppose this potential decision, von Spakovsky said the three justices who will be critical in shaping the outcome of Louisiana v. Callais will be Chief Justice John Roberts and Associate Justices Brett Kavanaugh and Amy Coney Barrett. He specifically pointed to Roberts, who previously authored a VRA-related decision (Shelby County v. Holder) in 2013.

“I think [Roberts’] voice and what he decides to do about this case is gonna be crucial to the outcome,” von Spakovsky said.