On Wednesday, the Supreme Court narrowed the conditions under which states must draw districts with a majority of minority voters. Under the prior interpretation of Section 2 of the Voting Rights Act—the Gingles test—a districting plan could be illegal where an alternate districting arrangement would yield an additional minority-controlled representative. For years, states have contorted their district maps to ensure a satisfactory number of representative districts were primarily made up of minority voters. The court’s new ruling in Louisiana v. Callais now says district maps must show intentional discrimination to be illegal. States are now free to pursue electoral maps that do not prioritize the protection of minority voting power.
The response among scholars and politicians to Callais is widespread condemnation and panic, with predictions of a rising tide of racial subordination. Nicholas Stephanopoulos, perhaps America’s leading election law scholar, called it “a disaster for minority representation in America.” Senate Minority Leader Chuck Schumer accused “the Supreme Court [of] turn[ing] its back on one of the most sacred promises in American democracy—the promise that every voice counts.” Former DNC Chair Jaime Harrison intimated that Callais is a more destructive decision than Dred Scott v. Sandford. The overarching claim is that the Supreme Court is stripping the most vulnerable in our society of their access to the electoral process, and with it gutting the legitimacy of American democracy.
Is this panic justified? The overarching effect of Callais is to reduce the onus on states to clump minority voters together into dedicated districts. It will require states instead to integrate them into the wider state dynamics of political dialogue and contestation. This will shock the status quo distributions of political power.
“The ultimate effects will be eminently desirable.”
But the ultimate effects will be eminently desirable. Callais will curtail the government reliance on racial classifications that enables creation of majority-minority districts. More importantly, it will push political conflict away from racialized design by elite actors—the federal government, acting through bureaucracy and the courts—and into the world of political discourse and struggle. Party politics may be unruly, opaque, even cut-throat, but they are the central mechanism by which voters control representatives. By moving all voters into the realm of partisan struggle, Callais thus moves towards a more accountable, more egalitarian, and more unified vision of democracy.
At the outset, the comparative incrementalism and modesty of Callais are striking. Some have called for Gingles to be discarded wholesale (including Justice Thomas). But Callais adapted, rather than eliminated, the statutory prohibition of vote dilution under Section 2 of the VRA. It did not overturn the Gingles test, which the Supreme Court adopted only after its first reading of Section 2 endured congressional condemnation. The core of the Gingles test—which has survived Callais—is exceptional in creating a claim where a districting results in lower minority political power, even if that result is not due to explicitly identified racial discrimination. This means the sweep of Section 2 remains somewhat wider than the Constitution’s own equal protection prohibition of racial discrimination, which requires that governmental conduct intend to classify by race to be illegal. Indeed, that Section 2 sweeps beyond the Court’s own prohibitions of discrimination has led some to question if Section 2 has any firm constitutional grounding at all.
More importantly, Callais’ modest shift to the doctrine rests upon deeper principles. The first is that racial classifications by the government are unconstitutional except in the most urgent circumstances (such as imminent violence in prisons or correcting directly traceable instances of past government discrimination). Yet prior to Callais, states classified by race in map-making so they could draw enough majority-minority districts and thus avoid Section 2 lawsuits. As Callais recounts in detail, the Court has long hedged on whether complying with federal statutes that advance minority voting power is one of the exceptional circumstances that permits governmental use of race. In refusing to expand the vanishingly small set of exceptions to the prohibition of governmental use of race, Callais reiterates that the prohibition of race-classifying laws is a supreme priority.
This is, above all else, a commitment to the generality of legal rules—a bedrock principle of just constitutional regimes. There are convincing reasons to make the prohibition of racial classifications among the most strictly and uniformly enforced of such general rules. Race is neither freely chosen by individuals nor relevant to personal moral standing. Its use by governments throughout history has left a legacy of separation and oppression. If there are any legal principles worth universalizing, the prohibition of racial classifications would be chief among them.
Justice Elena Kagan’s dissent argues that the majority’s decision simultaneously blesses two intrusive and intertwined forces: racism and partisanship. Callais’ central analytic move is that because partisanship is now recognized as a permissible basis under federal law for districting, drawing of districts to serve party interest can explain many maps that do not maximize minority voting power—and any alternate Section 2 map in such a partisan environment must equally satisfy these partisan goals. Since minority political power often operates through partisan affiliation, Callais allows partisan interest to serve as a mechanism for subordinating racial minorities. Many maps that empower a partisan majority will also impair the maximization of minority-majority districts, but will survive as partisan districtings, so Callais thereby practically defangs much of Section 2. In the dissenters’ eyes, this is a foul trade: Partisanship may be inevitable, but is widely perceived as an ignoble motivation for districting (or any government action), yet the aspiration of racial justice is subsumed to the cheapness of party self-dealing.
Yet this critique misses the wider context of popular self-determination, and the particular role of parties within it. In the American constitutional system, power over democratic process is given to the states. Federal interventions are meant to be exceptional and targeted, protecting the narrow silos of federal rights and constitutional order that are the domain of the national government.
Callais narrows when such interventions may trump popular state-level liberty. It insulates, in particular, the use of parties—the central coordinating mechanism of democracy—to inform democratic design. The use of parties, while widely critiqued, is part of democratic autonomy, not alien or hostile to it—as I have argued here before. A turn towards parties and robust partisan power provides a context by which voters may serve their interests. Callais pushes voters—minorities and otherwise—to use these organic political processes of bargaining and coalition-building to advance their interests.
“Party is precisely the mechanism by which political conflict is meant to be realized.”
Requiring the drawing of majority-minority districts fractures the polity along racial lines by fiat. Such externally imposed fracturing may be necessary where a state has intentionally schemed to subordinate minority voters—a point reflected in the Voting Rights Act’s origin. But if adopted as an ongoing precondition of permissible electoral design, isolating minority voters into their own districts threatens to exacerbate racial polarization.
Unlike race, party is precisely the mechanism by which political conflict is meant to be realized. Parties exist to coordinate voters among their interest blocks and wedge groups, to structure conflict to realize voter preference. Parties and the party apparatus allow voters to hold public representatives accountable and to access an otherwise bureaucratized public sphere. While parties can be abused, they are first and foremost a tool of the people, not their enemy. Allowing partisan considerations to trump the maximization of majority-manority districts is a win for democracy.