With voting rights under attack, racial gerrymandering reappears

Last summer, the U.S. Supreme Court made a shocking move: it declined to rule on Louisiana v. Callais, a fully briefed, fully argued case challenging Louisiana’s congressional map.

A group of white voters in the case are challenging the legality of the state’s map, after it was redrawn to remedy racially discriminatory districting that had the effect of diluting Black voters. 

Instead of ruling on questions the case originally presented, the court decided to rehear the case, and it issued a new question that it wants the parties to answer: What is the constitutionality of considering race when drawing a map to remedy a violation of the Voting Rights Act? 

Proposing a race-blind remedy to solve racial discrimination is like offering salt water to someone who is dying of thirst. The court, however, seems willing to entertain such a thing — or worse, to sunset the Voting Rights Act, which would leave minority voters out in the cold. 

Predicting what the court will decide is futile. But recent comments from several justices suggest significant changes could be imminent to one of the nation’s strongest voting rights protections. 

The Voting Rights Act, passed in 1965, prohibits redistricting plans that have the effect or intent of preventing any racial, ethnic or language minority group from being able to elect candidates of their choice. The act has had an impact on California’s elections.

For example, in the Garza v. County of Los Angeles case, a federal court in 1990 found that the Los Angeles County Board of Supervisors’ map split the County’s Latino community among multiple districts and violated Section 2 of the Voting Rights Act.

As a remedy, Los Angeles County created the first Latino-majority Board of Supervisors district, resulting in the election of Gloria Molina. The remedy — drawing a new redistricting plan that allows for a minority group to be a majority in a district and to elect the candidates of their choice — is central to the Voting Rights Act. 

That system of remedies under the Voting Rights Act is the focus of the Callais case. Section 2 of the Act is the biggest protector of Black electoral power in the nation. Defenders of the Act argued recently that the only Black members of Congress elected in Louisiana were elected in districts drawn after successful Voting Rights Act litigation. 

The return of Jim Crow

And as attacks on the citizen and non-citizen population of Latinos in the country reach an all-time high, provisions of the Act may be one of the few federal protections for Latino voters.

Absent these protections, there is little to stop the redistricting practices of the Jim Crow era from resurging. We know this will happen because after 2013, when the Supreme Court neutered another part of the Voting Rights Act, Section 5, we observed a resurgence of discriminatory voting practices. 

This time, however, the racial intentions will be in the form of purported partisan maps that allegedly coincidentally dismantle racial minority districts. Our extensive experience with these cases is that all too often the motivations behind redistricting plans are at least as much racial as political.

This summer, we witnessed Texas redistricting in response to a letter from the U.S. Department of Justice, which targeted specific districts based on their racial composition and directed the state to redraw districts that are considered “coalition districts” —  where racial and ethnic minority groups combined to become the majority of voters in a district. 

Texas complied. It intentionally packed and cracked Black and Latino citizens into fewer districts and diluted other areas with large minority populations by merging them with predominantly Anglo, rural areas. 

The resulting maps plainly have a discriminatory intent and effect. Congress has said, over and over again, that such intent and effects must be remedied under the 15th Amendment. Whatever the partisan motivations, reasonable representation for racial minorities was a hard-fought remedy Congress adopted. The Supreme Court should not grant itself the power to repeal this Congressional enactment backed by the 15th Amendment. 

Will any of this affect California Democrats’ attempts to gerrymander congressional districts to create the potential for more Democratic seats in Congress?

While California may also redistrict based on the results of Proposition 50, the current redistricting frenzy around the country will likely not be impacted by Callais for at least the 2026 midterm elections. 

This is a timing issue. The Supreme Court is not likely to issue an opinion in Callais until next June. By then nearly every map will be final for 2026, and primary elections will be under way.

Even if the Supreme Court ruled earlier in the Texas case, it would not affect California’s efforts because the claims at issue in the Texas trial are intentional discrimination claims that exist under the Constitution. 

Safeguarding an inclusive democracy

Indeed, there is no scenario where Prop 50 does not make an impact during the midterm elections. 

Despite attempts to characterize the Voting Rights Act as a partisan law, its loss would devastate the ability of Black, Latino, AAPI, and Native American voters to elect candidates of their choice. It is impossible to know how that would play out on a partisan basis.

While states like Texas move backward, California has the opportunity and the obligation to lead. Voters here will decide on a new redistricting plan, but the state can and should go further. 

By codifying key provisions of the Voting Rights Act into state law, strengthening protections against voter suppression and dilution, and modernizing election infrastructure, California can safeguard the inclusive democracy that other states are working to erode. 

The Supreme Court’s decision in Callais will determine the future of federal voting rights, but California need not wait to defend them.