Get ready for what could be another landmark Supreme Court case. Last Friday the Justices agreed to consider whether majority-minority Congressional districts drawn to comply with the Voting Rights Act are compatible with the Constitution’s equal protection guarantee.

In June the Court announced it would rehear a redistricting challenge (Louisiana v. Callais) in the term that begins in October. On Friday they broadened the case by asking parties to address the question of whether the state’s creation of a second majority-minority Congressional district violates the Fourteenth or Fifteenth Amendments.

This is long overdue, as states are now caught in a vice. If they weigh race too heavily, they can run afoul of the Equal Protection Clause. But if they ignore race, they can be sued for violating Section 2. Louisiana’s House map is a prime example.

Progressives first challenged the map under Section 2 because it included only one majority-minority district. The Court’s muddled Gingles (1986) precedent requires states to draw majority-minority districts if the minority populations are large, compact and politically cohesive and if whites vote “sufficiently as a group” to defeat a minority’s preferred candidate.

States and lower courts have struggled to discern what this means in practice. A district court ordered Louisiana to draw a second majority-minority district even though its minority population is widely dispersed. The nearby map of the district shows how it winds from the northwest of the state like a messy ink spill down into the suburbs of Baton Rouge. At points it is barely contiguous and it certainly isn’t compact.

The racial gerrymander pushed Republican Garret Graves out of Congress in favor of black Democrat Cleo Fields.

White voters then challenged the new map as an unconstitutional racial gerrymander, and a different lower court ruled in their favor.

When the Court heard the case this spring, Justice Brett Kavanaugh wrote that “the Court’s long said that racebased remedial action must have a logical end point.” He’s right. See its holding in Students for Fair Admissions (2023) and Shelby County (2013). The Court in the latter case struck down Section 4’s pre-clearance formula of the Voting Rights Act as an outdated vestige of the Jim Crow era.

But the Court has repeatedly shrunk from confronting whether Section 2 or Gingles runs afoul of the Constitution’s Equal Protection Clause. In the June order in the Louisiana case, Justice Clarence Thomas pointedly called out the Court for this timidity. By taking on this question now, the Justices may have decided it’s time at last to extricate themselves from refereeing gerrymander fights between partisans who use the Voting Rights Act as cover for political gain.

Republicans in Texas last week redrew their House map after the Trump Justice Department warned that several districts appeared to be unconstitutional racial gerrymanders. Progressives had also challenged the previous map. The new map could yield Republicans another five seats in the state, bringing their count to 30 of 38. Liberal groups say they’ll challenge the map under Section 2.

Partisan gerrymanders reduce electoral competition and make politics more polarized, but court-ordered racial gerrymanders aren’t the solution and arguably make matters worse by putting unelected judges in charge of what is inherently a political process.

— Wall Street Journal