Well, that was unexpected. As mentioned a moment ago, the Court today punted on the Louisiana congressional case, Louisiana v. Callais, setting it for reargument next Term. The order says that the Court will “issue an order scheduling argument and specifying any additional questions to be addressed in supplemental briefing” “in due course.”
That’s an odd outcome in a case that’s already taken a wild path to get to the Court. Louisiana’s first set of congressional lines were passed over a gubernatorial veto, and enjoined as a VRA violation in mid-June 2022, in a decision put on pause by the Supreme Court awaiting Alabama’s Milligan case. When the Supreme Court upheld Milligan in 2023, it vacated the stay — but that meant that Louisiana’s 2022 elections were held under the unlawful lines. A bit more nuttiness ensued with different 5th Circuit panels stopping and starting different facets of the case, but eventually we got to a clear need, affirmed by the 5th Circuit, for a remedial plan.
In January 2024, the legislature passed that remedial plan — not in the part of the state where the VRA plaintiffs had asked for a remedial district, but in a part of the state where it felt more politically useful. Plaintiffs in Callais noted that the remedial district looked a lot like one that had been enjoined in 1996 as unjustifiably based predominantly on race. And so these plaintiffs challenged the new remedial district, along with a swipe at the VRA in the process — not in the same court that had been overseeing the VRA case, but in a different district. The three-judge trial court enjoined the new remedial district … and that led to the decision I was expecting today.
I think this case should be pretty easy (and that’s backed up by the fact that Louisiana and the NAACP LDF are on the same side of the case, which is … unusual). Yes, race was a factor in drawing the remedial map, because the state had an obligation to draw a district compliant with the VRA (which plaintiffs in the original case established after an enormous amount of fact-specific evidence, confirmed by the not-notoriously-liberal 5th Circuit, in an opinion itself in line with exactly how the Supreme Court said these cases should go in Milligan). But as to how the remedial map was drawn, that seems shot through with political calculations, including how to best rearrange the seat of the Speaker of the House. (Indeed, the hardest part of this case is whether the State got so political in its line drawing that it didn’t actually remedy the VRA problem … but that’s not what these plaintiffs are challenging.) And after the Court’s decision in Alexander v. SC NAACP last year, I’d think that the evidence here would be comparatively straightforward that if the State’s going to go all in on politics, it can permissibly decide on the particular political composition on the district it wanted to draw.
Justice Thomas, in a solo dissent from today’s rescheduling order, thinks this case is also easy, but in an entirely different direction. As he points out, “[f]or over three decades, I have called for “a systematic reassessment of our interpretation of §2 [of the Voting Rights Act].” And that’s true, he has. But mostly because he has an impression of §2 that is, as I’ve written before, a completely fictional construct. In today’s dissent, Justice Thomas says that “[i]n effect, the upshot of Milligan is that whenever a State feasibly can create an additional majority-minority district, it must do so.” That’s … not even close to how the law works right now (as a bunch of unsuccessful VRA claims this very cycle should attest).
And so I worry a bit that Justice Thomas’s view of this appeal as an easy case may be pulling some of the Justices away from what I think should make this appeal an easy case, leading to an opportunity in re-argument for the fictional version of the VRA to once again overcomplicate the Court’s decisionmaking. We’ll see soon enough.
In the meantime, the status quo leaves the existing January 2024 Louisiana congressional map in place. The Court stayed the three-judge trial court’s order in May 2024, and I don’t think anything in today’s rescheduling order interferes with that continuing stay.
Halfway through the 2021 redistricting cycle, there are still 35 pending cases challenging congressional or state legislative lines in 11 states, and at least one (Ohio) where lines will have to be redrawn even without pending litigation. Buckle up.
