It was not clear at oral arguments on Monday how the Supreme Court will rule on a challenge to Louisiana’s latest redistricting plan. The state and a group of Black voters ask the justices to reinstate a congressional map, enacted by the Louisiana legislature last year, that created a second majority-Black district. A federal court threw the map out, agreeing with a group of voters who describe themselves as “non-African American” that the new map was an unconstitutional racial gerrymander — that is, it sorted voters primarily based on race.
Several of the court’s conservative justices expressed skepticism about the map and about whether the 2022 ruling on which Louisiana relied to justify the creation of a second majority-Black district in the state was actually correct, but it was unclear whether those concerns would be enough to uphold the lower court’s ruling.
The court’s ruling, which is expected by late June or early July, could have significant implications not only for Louisiana but also for other states attempting to balance compliance with the Voting Rights Act and redistricting. And with Republicans holding only a slim majority in the House of Representatives, the court’s decision could affect the balance of power there.
The dispute’s path to the Supreme Court on Monday was a circuitous one. After the 2020 census, Louisiana needed to draw a new map for its six congressional districts. Although roughly a third of the state’s population is Black, the map that the legislature enacted in 2022 contained only one majority-Black district.
A group of Black voters challenged that map, arguing that it diluted the votes of Black residents. A federal court agreed that it likely violated Section 2 of the Voting Rights Act, which prohibits election practices that result in a denial or abridgement of the right to vote. It instructed the state to draw a new map with a second majority-Black district and barred the state from using the existing map.
The U.S. Court of Appeals for the 5th Circuit upheld that ruling and instructed Louisiana to draw a new map by Jan. 15, 2024. Without a new map by then, the court of appeals said, the district court would hold a trial and, if necessary, adopt a map for the 2024 elections.
The legislature drafted a new map, known as S.B. 8, with a second majority-Black district that begins in the northwest corner of the state near Shreveport and stretches 250 miles southeast toward Baton Rouge.
The “non-African American” voters then challenged S.B. 8. A three-judge federal district court ruled that the creation of the second majority-Black district was an unconstitutional racial gerrymander, and it barred the state from using the map in the 2024 elections.
A divided Supreme Court put the three-judge courts’ decision on hold in May, allowing the state to use the map during the 2024 elections, and in November it set the appeal by the state and the Black voters for argument.
Benjamin Aguinaga, Louisiana’s solicitor general, told the justices on Monday morning that his state “would rather not be here.” It had been caught, he contended, between “two parties with diametrically opposed views” of what the new map should look like. After the challenge to the 2022 map, he explained, the state in an election year faced the possibility that a federal court would draw a map that forced two high-profile Republican incumbents – Speaker of the House Mike Johnson and Julia Tetlow, who sits on the powerful House Appropriations Committee – out of office. To avoid that scenario, he said, the state drew its own map instead.
Justice Clarence Thomas was the first of several justices to press Aguinaga and the other advocates about whether the district court’s 2022 ruling, known as the Robinson litigation, was a sound one, so that the state was justified in relying on it to create a second majority-Black district.
Aguinaga insisted that it was. “A rational state,” he stressed, “is going to run with exactly” what the court instructed it to do.
Justice Samuel Alito chimed in, asking Aguinaga what would happen if the Robinson ruling were “plainly wrong.”
Aguinaga conceded that an “extremely unusual” case could arise in which the lower court’s ruling was “wildly wrong,” but he maintained that a case in which the lower court’s ruling was simply erroneous would be “harder to challenge” because it would essentially mean relitigating the lower court’s decision. And in any event, he added, the “non-African American” voters had not argued that the Robinson ruling was incorrect.
Justice Sonia Sotomayor jumped in on Aguinaga’s side, observing that the “non-African American” voters had instead contended that because Louisiana was trying to comply with the court order and the Voting Rights Act, race was the primary factor at issue when it drew the new map.
Justice Ketanji Brown Jackson said she was puzzled why it would matter whether the Robinson ruling was correct. She expressed concerns about the Supreme Court trying to decide, in a case like this one, whether a lower court’s ruling that is not directly before them was erroneous. The Supreme Court is traditionally constrained to only consider rulings that are appealed and directly briefed before them.
Justice Elena Kagan was equally dubious, asking whether she and her colleagues were “really in a position to address” whether the Robinson ruling was correct. “We had the opportunity to” take up that case, she noted, but “let it go.” And, she continued, the “non-African American” voters’ brief was “not premised on the idea that Robinson was incorrect.” “At some point,” she said, “a state takes its loss and decides to ‘get on with things.’” The Supreme Court has repeatedly indicated, she said that states should have “breathing room” in redistricting.
Justice Neil Gorsuch suggested that the state should not be able to rely on the Robinson decision because it was not a final decision on the merits, but instead only rulings on whether to issue a preliminary injunction. He characterized the situation as “a little awkward,” contending that the Robinson decision did not have a “binding effect.”
Sotomayor stressed that the Supreme Court had previously indicated that when states are trying to comply with Section 2, the new map that results must “substantially address” the prior violation of Section 2.
Kagan agreed. In her view, once the Robinson ruling provided Louisiana with good reason to believe that Section 2 had been violated, the only question was one of a remedy. She queried, “What’s wrong with that?” If the state cannot substantially address a violation of Section 2, she concluded, “the state has no breathing room.”
Aguinaga acknowledged that the Black voters in the Robinson litigation had provided a map that also contained two majority-Black districts. The only reason that the state departed from that map, he contended, was to protect the state’s high-profile Republican incumbents. The court has made clear that redistricting for political reasons is sound.
Edward Greim, representing the “non-African American” voters, countered that the state “always says it wants to protect incumbents.” And politics “only mattered,” he continued, because the state “accepted a second majority-Black district.” And there was no evidence in the record in this case, he emphasized, about how the state was addressing the violation. “Their entire argument was the mere existence of Robinson” means that the district can survive review.
But Chief Justice John Roberts complained that the resulting second majority-Black district was too oddly shaped to pass muster. It “runs from one end of the state to the other,” he said. Stuart Naifeh, representing the Black voters who challenged the 2022 map, insisted that “politics is the only reason” that Louisiana chose the current map. But Roberts questioned this point, “You think race was not the basis for this district,” Roberts said skeptically. It goes from one side of the state to the other, “picking up Black populations.”
Gorsuch echoed this concern. He told Naifeh that they had been offered a map with a compact district, but “Louisiana chose a snake.” The state “didn’t have good reason to draw this district,” Gorsuch insisted. He later stressed that although “certainly politics played a role” in the state’s map, race also had factored into the map. “How,” Gorsuch asked, “do we square that with the 14th Amendment’s promise that race should play no role in our laws?”
Naifeh argued that race was just one consideration in drawing the map. Under the Supreme Court’s ruling last term in Alexander v. South Carolina Conference of the NAACP, he said, the “non-African American” voters were required to provide evidence to “disentangle race and politics,” but they failed to do so. And, he said, states are required to take population into account, not geography.
Justice Brett Kavanaugh pressed a point that he made in a 2023 concurring opinion in another redistricting case out of Alabama: Should there be a “logical endpoint” at which Section 2 of the Voting Rights Act no longer applies to race-based redistricting claims?
Naifeh countered that Section 2 violations hinge on what is currently happening with voting practices, rather than an effort to address past wrongs. It should not be tied, he argued, to an “artificial endpoint.”
Greim resisted Kavanaugh’s suggestion that the court could not consider this issue because his clients had not adequately raised it. Greim maintained that the question “was not ours to forfeit.” But in any event, he added, the ruling in the Robinson decision demonstrates that Section 2 is “no longer performing the function it was assigned.”
At the end of the argument, Aguinaga urged the justices to reverse the three-judge district court’s ruling, telling them that Louisiana did not “want to be back here” before the Supreme Court “in the fall,” “defending a new map against a new challenge.” In drawing the 2024 map, he stressed the state relied on the “breathing room” that the Supreme Court’s cases promise. “And if this Court holds otherwise,” he concluded, “then respectfully I don’t know what this Court’s voting cases mean.”

This post is also published on SCOTUSblog.