15

By Marilyn Odendahl
The Indiana Citizen
November 15, 2024

Claiming the federal courts have “enabled statutory mission creep” of Section 2 of the Voting Rights Act of 1965, Indiana and 12 other states are urging the U.S. Supreme Court to provide some clarity on the provision as the justices prepare to hear oral arguments, again, in a protracted racial gerrymandering dispute from Louisiana.

The case centers on Louisiana’s response to a federal district court’s 2022 ruling in Robinson v. Ardoin that the state was likely violating Section 2 of the VRA by having only one majority-Black congressional district. After the case went to the U.S. Supreme Court and was sent back to the lower court, the state was given an ultimatum: redraw the map by January 2024 or go to trial. Louisiana believed the end result of a trial would be the court imposing its own map, so the state legislature went into a special session and drew S.B. 8, a new map that included a second majority-Black congressional district.

However, shortly after the Louisiana governor signed S.B. 8 into law, a group of individuals, who identified themselves as non-African Americans, sued the state, alleging S.B. 8 was an unconstitutional racial gerrymander.

The Western Louisiana District Court agreed with the plaintiffs and enjoined the state from using the new map in any election. Making another trip to the U.S. Supreme Court, Louisiana was able to get an emergency stay in May 2024 to block the lower court’s injunction.

Now the related case, Robinson v. Callais, 24-109, has landed at the U.S. Supreme Court. As the justices were deciding whether to accept the appeal, Indiana Attorney General Todd Rokita joined the amici curiae brief prepared by the attorney general of Alabama and signed by 11 other state attorneys general.

The states asserted they need clarity from the Supreme Court on how to comply with Section 2 of the VRA without running afoul of the 14^th Amendment’s Equal Protection Clause. Indiana and the other states contended that a series of recent decisions from federal court has created confusion.

“Courts have enabled statutory mission creep,” the states argued in their brief. “But Section 2’s successes are no reason to extend the law or deny legislators a fair chance of complying with Section 2 and the Constitution.”

State asking for ‘breathing room’

In its latest appeal to the U.S. Supreme Court, Louisiana has likened itself to a ping-pong ball being batted back and forth. Whether it passes a map with either one or two majority-Black districts, the state asserted it will likely be sued.

Consequently, Louisiana asked for breathing room. The state argued it met the standard set by the Supreme Court’s 2017 ruling in Cooper v. Harris which held that states need to have only a “strong basis in evidence” in order to conclude that the Voting Rights Act required them to take action. Enforcing this “flexible standard,” Louisiana argued, gives state legislatures “breathing room” when faced with “the competing hazards of liability under the Voting Rights Act and Equal Protection Clause.”

“This case uniquely demonstrates the folly of current redistricting litigation,” Louisiana said in its jurisdictional statement filed with the Supreme Court. “If the State loses this case despite this Court’s promise of ‘breathing room,’ then the reality is there is no oxygen in that room. But redistricting litigation should not be a fight to the death to see who finally succeeds in suffocating a State. No one truly wins that fight – the State loses, its voters lose, the judiciary loses, and democracy itself loses.”

Phillip Callais and the other individuals who challenged S.B. 8 filed a motion, asking the Supreme Court to either dismiss Louisiana’s appeal or affirm the lower court’s ruling. That ruling held the new map with the second majority-Black congressional district violates the Equal Protection Clause, which prohibits states from discriminating against or treating groups of people in similar circumstances differently.

Callais argued the case should be allowed to return to the district court. There is where the record can be fully developed, allowing the court to consider the interplay of the Voting Rights Act with the Equal Protection Clause.

“The facts will likely show that any proposed remedy with a second Black-majority district is not required under the VRA, advancing the State’s supposed interests in incumbent protection by restoring five Republican seats and disappointing only the Intervenors by rejecting their invalid VRA claims,” Callais said to the Supreme Court.

‘Read the statute’

While Indiana and the other states acknowledged Louisiana was in an untenable situation of likely facing a lawsuit regardless of how it redistricts, they agreed that Louisiana drew its congressional map solely to achieve racial goals.

“Amici States sympathize with Louisiana, whose saga proves how impossible it has become, now almost sixty years after the passage of the Voting Rights Act, to comply simultaneously with our color-blind Constitution and increasingly expansive interpretations of Section 2,” the states asserted. “Nevertheless, Louisiana’s attempt to do the impossible cannot be condoned by this Court.”

Indiana and the other states – Alabama, Georgia, Idaho, Iowa, Mississippi, Montana, Nebraska, South Carolina, Tennessee, Texas, Utah and West Virginia –  implored the Supreme Court to follow Associate Justice Felix Frankfurter’s three-part test for interpreting Section 2: “(1) Read the statute; (2) read the statute; (3) read the statute!”

They pointed to the statute and precedent in arguing that Section 2 is violated when members of a minority group “are not allowed to register, vote, choose a preferred party or participate in its affairs.” In other words, the states contended, to prove a violation of Section 2, the plaintiffs must show the minority group had less opportunity than other members of the electorate to participate in the political process and to elect their choice of officials.

The states highlighted Whitcomb v. Chavis, a U.S. Supreme Court case involving Indiana from 1971, which helped establish a test for determining whether vote dilution had occurred.

In Whitcomb, the plaintiffs alleged Marion County’s use of a “multimember districting scheme” to elect state senators and representatives was diluting the voting strength of a predominantly Black and poor section of the county. The voters in that section voted “heavily Democratic,” but Republican candidates won four of the five elections held from 1960 to 1968.

The U.S. Supreme Court upheld the county’s process because, the court said, the record did not show that Black residents had less of an opportunity at the ballot box.

“That the area did not ‘have legislative seats in proportion to its populations emerge(d) more as a function of losing elections,’ not built-in racial bias,” the states asserted, citing to Whitcomb. “The plaintiffs’ alleged denial of equal opportunity was ‘a mere euphemism for political defeat at the polls.’”

Oral arguments have not been scheduled for Robinson v. Callais, but they are expected to take place early next year.

Dwight Adams, an editor and writer based in Indianapolis, edited this article. He is a former content editor, copy editor and digital producer at The Indianapolis Star and IndyStar.com, and worked as a planner for other newspapers, including the Louisville Courier Journal.

The Indiana Citizen is a nonpartisan, nonprofit platform dedicated to increasing the number of informed and engaged Hoosier citizens. We are operated by the Indiana Citizen Education Foundation, Inc., a 501(c)(3) public charity. For questions about the story, contact Marilyn Odendahl at marilyn.odendahl@indianacitizen.org.