WASHINGTON — The conservative-majority Supreme Court on Wednesday appeared open to again undermining the Voting Rights Act in a congressional redistricting case from Louisiana.
The justices, who expanded the scope of the case over the summer, heard oral arguments about whether states can ever consider race in drawing new districts while seeking to comply with Section 2 of the 1965 law, which was enacted to protect minority voters against a backdrop of historic racial discrimination.
The Voting Rights Act has long been a target of conservative legal attacks, with the Supreme Court weakening it in two major rulings in 2013 and 2021.
The long-running dispute concerns the congressional map Louisiana was required to redraw last year after it was sued under the Voting Rights Act to ensure that there were two majority-Black districts. The original map had only one such district in a state where a third of the population is Black.
The Supreme Court originally heard the case this year on a narrower set of legal issues, but, in a rare move, it asked in June for the parties to reargue it. The court then raised the stakes by asking the lawyers to focus on a larger constitutional issue.
Louisiana, which initially defended its new map, has switched sides and joined a group of self-identified “non-African-American” voters who sued to block it on constitutional grounds. The Trump administration also backs the state’s new position.
Now, the justices are deciding whether drawing a map to ensure there are majority-Black districts violates the Constitution’s 14th and 15th amendments, which were enacted after the Civil War to ensure equal rights for former slaves, including the right to vote.
Conservatives argue that both constitutional amendments prohibit consideration of race at any time. The Supreme Court has previously embraced that “colorblind” interpretation of the Constitution, most notably in its 2023 ruling that ended the consideration of race in college admissions.
It was unclear based on the 2½-hour oral argument whether the court will explicitly rule that race can never be considered in drawing districts.
But the conservative majority could limit the ability of civil rights groups to challenge state maps under the Voting Rights Act.
One option would be to adopt a proposal made by the Trump administration, which suggested the court leave Section 2 intact but make changes to a 1986 Supreme Court case called Thornburg v. Gingles.
Under that argument, states would have more leeway to draw maps based on overt partisan considerations. As outlined by Principal Deputy Solicitor General Hashim Mooppan, states should be able to assert a desire for their own "political objectives" as a defense when their maps are challenged. That follows a 2019 Supreme Court ruling that said federal courts have no grounds to interfere with rampant partisan gerrymandering.
Conservative Justice Brett Kavanaugh, who is likely to be a key vote in the case, seemed receptive to that argument.
"I guess I would have thought that solves a lot of concerns that you've identified," he told Louisiana's lawyer, Solicitor General Benjamin Aguiñaga.
Kavanaugh also returned to a point he has previously made that allowing race to be used to remedy redistricting violations under the Voting Rights Act "should not be indefinite."
What impact a ruling adopting the Trump administration's argument, which is not as aggressive as the position taken by Louisiana, would have is hotly contested.
Liberal Justice Sonia Sotomayor, characterizing the Trump administration's position, said that "the bottom line is just get rid of Section 2."
Janai Nelson, representing the civil rights groups that challenged the original map, said a ruling along those lines would "swallow Section 2 whole." In concluding her argument, Nelson warned the justices that a ruling overturning precedent on such a sensitive issue "calls the court's legitimacy into question."
A complicating factor is that two years ago, the Supreme Court surprisingly reaffirmed the requirement that race be used to redraw districts when necessary to comply with the law in a different congressional redistricting case from Alabama.
The ruling was 5-4, with two conservatives, Kavanaugh and Chief Justice John Roberts, joining the court's three liberals in the majority.
During Wednesday's argument, both Roberts — who wrote that ruling — and Kavanaugh seemed to downplay its relevance.
"That case, of course, took the existing precedent as a given," Roberts said.
Other conservative justices, who dissented in the 2023 case, seemed equally on board with ruling in favor of Louisiana.
"If the objective is simply to maximize the number of representatives of a particular party, that’s seeking a partisan advantage; it is not seeking a racial advantage, isn’t that right?" conservative Justice Samuel Alito said.
Fellow conservative Justice Neil Gorsuch said that under the current interpretation of the law, states can "intentionally discriminate on the basis of race."
Sotomayor and the court's other two liberals were forthright in defending both the 2023 ruling and the Voting Rights Act itself.
Justice Elena Kagan noted that states can consider race only in limited circumstances, specifically, to remedy a violation of the Voting Rights Act.
"The race-based redistricting that you’re now objecting to is redistricting designed to remedy a specific, identified, proved violation of law," she told Aguiñaga. "That's the way the race-based districting is coming in. It's coming in as a remedy for specific, proved discrimination on the state's part."
A broad ruling in Louisiana's favor would reduce the need for states to draw legislative districts composed largely of minority groups, and it would be likely to reduce the number of minority lawmakers in Congress and state legislatures.
A quick ruling could give Louisiana and other states time to draw new districts ahead of the 2026 midterm elections. With Black voters often voting Democratic, such a move could benefit Republicans.
