The state of Louisiana asked the 5th Circuit on Thursday to require a district court to consider throwing out Section 2 of the Voting Rights Act — a move designed to bring the case to the conservative Supreme Court majority.
The case, Robinson v. Ardoin, was brought against Louisiana in 2022 by civil rights groups and local voters to challenge the state’s congressional redistricting plan. “Louisiana’s 2022 congressional map,” the lawsuit said, “continues the State of Louisiana’s long history of maximizing political power for white citizens by disenfranchising and discriminating against Black Louisianans.” Despite making up 31% of the state’s population, the Republican-controlled legislature created just one majority Black congressional district, representing 17% of House districts. White residents, in contrast, represent the majority in 83% of House districts but make up 56% of the population.
The 2022 congressional map dilutes Black voting strength in violation of the Voting Rights Act of 1965 (“VRA”) 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.
The plaintiffs argued that the maps violated Section 2 of the Voting Rights Act (VRA), which prohibits “any voting standard, practice, or procedure that results in the denial or abridgement of the right of any citizen to vote on account of race [or] color,” and asked the courts to require the creation of a second majority-Black district.
Chief District Judge Shelly Dick (an Obama appointee) ruled in favor of the plaintiffs, finding that they were “substantially likely to prevail on the merits of their claims brought under Section 2 of the Voting Rights Act” and ordering the state to draw a fair congressional map.
Louisiana’s Secretary of State ultimately appealed to the U.S. Supreme Court in June 2022. The six conservative justices granted the state’s request for a stay of the district court’s order, allowing the map with only one majority Black district to be used in that year’s midterm elections.
Fast forward to June 2023 when the Supreme Court ruled 5-4 in Allen v. Milligan that Alabama’s congressional districts likely violated Section 2 of the VRA. In that case, like in Louisiana, the Republican-controlled legislature only drew one majority Black district (out of seven congressional districts total) despite Black people making up 34% of the state’s population. Consequently, the Alabama legislature will be convening a special session to draw a new map that complies with the VRA.
In light of their decision in Milligan, the Supreme Court lifted the stay in Louisiana’s Robinson case and sent it back to the 5th Circuit “for review in the ordinary course and in advance of the 2024 congressional elections.”
With Robinson back before the 5th Circuit, Louisiana and the coalition of civil rights organizations and voters have a chance to re-argue the case.
Louisiana revealed its strategy in a brief to the court filed last week arguing that the entirety of Section 2 of the Voting Rights Act should be ruled unconstitutional on the basis of two recent Supreme Court opinions.
First, the state says that because the six conservative justices blocked race-conscious university admissions policies, race-conscious voting rights laws should also be thrown out. As Chief Justice John Roberts wrote in that case, Students for Fair Admissions (SFFA) v. Harvard, considering race in admissions is illegal racial discrimination. Louisiana seized on his words in its brief to the 5th Circuit:
SFFA has considerably altered the landscape of cases, such as this one, that involve state action requiring racial classifications. 2023 WL 4239254, at *12 (“Eliminating racial discrimination means eliminating all of it.”). Indeed, the SFFA Court made clear that as statutes requiring race-based classification achieve their intended ends, they will necessarily become obsolete. See id. at *14–21 (explaining that Grutter v. Bollinger, 539 U. S. 306 (2003), “made clear that race-based admissions programs eventually had to end” and that the instant facts demonstrated that the time had come)
Louisiana goes on to cite another of Chief Justice John Roberts’s opinions — Shelby County v. Holder, in which he wrote that racial discrimination in state election laws is too inconsequential for federal intervention. As a result, the court invalidated the formula for determining whether changes to a state’s voting procedure should be federally reviewed.
And we have seen similarly once-permissible racial classifications be held unconstitutional when the facts justifying their existence were no more—specifically in the Voting Rights Act (“VRA”) context. See Shelby Cnty. v. Holder, 570 U.S. 529, 557 (2013) (holding part of the VRA unconstitutional because “[o]ur country has changed, and while any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions”). Consequently, the district court should be permitted to address, in the first instance, whether the facts on the ground here similarly warrant a rejection of Section 2 of the VRA, as applied, because it is no longer necessary. See id. at 536 (“[C]urrent burdens . . . must be justified by current needs.” (quoting Nw. Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193, 203 (2009))).
Second, the state cites Justice Brett Kavanaugh’s concurring opinion and Justice Clarence Thomas’s dissenting opinion in Allen v. Milligan to argue that, like affirmative action and the coverage formula, the authority to consider race in redistricting is also time-limited:
Notably, this temporal argument was acknowledged by members of the Milligan Court but, because it was not properly raised, the Court did not consider it. 143 S. Ct. at 1519 (Kavanaugh, J., concurring) (“Justice Thomas notes, however, that even if Congress in 1982 could constitutionally authorize race-based redistricting under §2 for some period of time, the authority to conduct race-based redistricting cannot extend indefinitely into the future. See post, at 1543–1544 (dissenting opinion). But Alabama did not raise that temporal argument in this Court, and I therefore would not consider it at this time.”). Indeed, eight Justices in Milligan appeared to conclude that the first Gingles precondition cannot be satisfied where race is the predominant factor in the creation of an illustrative comparator. See 143 S. Ct. at 1510–12; id. at 1527 (Thomas, J., dissenting). That predominance test is essential to mitigate the problem of race-based classifications identified in SFFA, and the district court should address the interplay of these decisions, as applied to this case, in the first instance on remand.
It is unclear how the 5th Circuit will rule on Louisiana’s request. However, it is the most conservative in the nation, with six Trump appointees, four G.W. Bush appointees, and two Reagan appointees among its 16 active judges.
Vox (Dec. 2022): The Fifth Circuit has, in recent months, declared an entire federal agency unconstitutional and stripped another of its authority to enforce federal laws protecting investors from fraud. It permitted Texas Republicans to effectively seize control of content moderation at social media sites like Twitter, Facebook, and YouTube. Less than a year ago, the Fifth Circuit forced the Navy to deploy sailors who defied an order to take the Covid vaccine, despite the Navy’s warning that a sick service member could sideline an entire vessel or force the military to conduct a dangerous mission to extract a Navy SEAL with Covid…
And this is just a small sample of the decisions the Fifth Circuit has handed down in 2022. Go back just a little further, and you’ll find things like a decision endangering the First Amendment right to protest, or another that seized control over much of the United States’ diplomatic relations with the nation of Mexico. In 2019, seven Fifth Circuit judges joined an opinion that, had it been embraced by the Supreme Court, could have triggered a global economic depression unlike any since the 1930s.
More importantly, though, Louisiana’s goal isn’t just to win at the 5th Circuit. The state aims to reach the Supreme Court and convince Chief Justice John Roberts to join with the other conservatives on the bench to bless racial discrimination in redistricting.