Cases and Controversies is a recurring series by Carolyn Shapiro, primarily focusing on the effects of the Supreme Court’s rulings, opinions, and procedures on the law, on other institutions, and on our constitutional democracy more generally.
In Louisiana v. Callais, the Supreme Court, in an opinion by Justice Samuel Alito, eviscerated Section 2 of the Voting Rights Act. There is so much incisive commentary about this devastating opinion that I hesitate to attempt to add to it. You likely already know that the opinion effectively overrules the provision of the VRA designed to ensure that minority voters are able to have meaningful representation in multimember elected bodies, it turns the Reconstruction Amendments on their heads by making them vehicles for race discrimination, and it drastically restricts Congress’ authority under the 15th Amendment. You may know that it effectively reverses a 2023 case and turns two of Alito’s dissents into law. You probably know that the court denies doing any of these things. And you undoubtedly know that this opinion, which is an electoral gift to the Republican Party, has already triggered yet another round of congressional redistricting to eliminate districts that were drawn to comply with Section 2, thereby eliminating a slew of safe Democratic seats, and that the impact at the state and local level will be extreme.
So I’ll take a slightly different tack, which is to consider one tactic that might ameliorate at least some of the harm Callais is already causing. I believe that Democrats absolutely must make restoring and protecting democracy, and in particular multiracial democracy, their top priority. To do so, I think they should (among many other things) turn to the guarantee clause, which provides that “[t]he United States shall guarantee to every State in this Union a Republican Form of Government.” The clause provides an opportunity. (That said, as I’ll revisit at the end of the column, no single law or constitutional provision will fix what ails our country and our democracy. Think of this column as describing just one tool in the toolbox and encouraging others to be even more creative.)
To understand both the argument I’m making and some of what makes Callais so devastating requires going back to a 2019 case, Rucho v. Common Cause. In Rucho, the Supreme Court, in an opinion by Chief Justice John Roberts, held that extreme partisan gerrymandering was not a question that the federal courts could address. It was, the court said in a 5-4 decision, a “political question” that was not susceptible to federal judicial resolution because it was too difficult to identify “judicially manageable standards for deciding such claims.”
There was a lot wrong with Rucho’s reasoning. For one thing, as Justice Elena Kagan pointed out in her dissent, federal courts in fact had been converging on precisely such a set of standards. Nonetheless, the Rucho majority said several important and accurate things about partisan gerrymandering. First, it described the Constitution’s assignment of authority over congressional districting, noting that although states have the power to determine “the Times, Places, and Manner” of congressional elections, Congress itself can “make or alter” those regulations. The court recognized that under this provision, known as the elections clause, Congress can outlaw extreme partisan gerrymandering in congressional districting. (Congress can do a lot of other things too with respect to congressional elections. For example, it could mandate ranked choice voting, multimember districts, and/or proportional representation, all of which would ameliorate some of the worst effects of partisan gerrymandering, to different degrees.) Rucho also noted that states themselves can address partisan gerrymandering, as some already had.
Finally, the Rucho court explicitly stated that it was not “condon[ing] excessive partisan gerrymandering.” “Excessive partisanship in districting leads to results that reasonably seem unjust,” it said, explaining further that “the fact that such gerrymandering is ‘incompatible with democratic principles,’” does not mean that federal courts have a role to play. They do not, was the holding of the case.
Of course, the court could have said more. One might have expected commentary in Rucho, suggesting that the court’s self-proclaimed powerlessness in the context of partisan gerrymandering does not absolve other officials from considering their own constitutional obligations. Indeed, all officials take an oath to the Constitution and have their own obligations to interpret and apply it, even, or especially, where the courts have stepped aside.
Not only did the court miss the opportunity to point out that other actors should not assume that non-justiciability is equivalent to constitutionality, but it has since indicated the opposite. In the 2023 case of Alexander v. South Carolina State Conference of the NAACP, the court, in an opinion by Alito, reversed a lower court’s conclusion that the South Carolina legislature had intentionally discriminated against Black voters in redistricting. The state’s defense was that it had been motivated by partisanship, not race. In an opinion that presaged Callais in a number of ways, Alito stated in only the third sentence: “Thus, as far as the Federal Constitution is concerned, a legislature may pursue partisan ends when it engages in redistricting.” That’s a big shift from partisan gerrymandering being “unjust” and “incompatible with democratic principles” but not justiciable in Rucho to “it’s perfectly constitutional” in Alexander.
And now, in Callais, the court has taken this deference to partisan gerrymandering even farther, announcing a constitutional-level protection for it by dramatically changing the burden on Section 2 plaintiffs who challenge redistricting. Explaining why requires a bit of a detour into the law as it existed before Callais.
In 1982, Congress amended Section 2 of the VRA to make clear that the law restricted practices with discriminatory effects, even without a showing of discriminatory intent. More specifically, “states and localities may not use an electoral practice or procedure, including a voting district map, if the practice or procedure ‘results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color.’” With regard to districting, such denial or abridgement “occurs ‘if, based on the totality of circumstances, it is shown that the political processes leading to the nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected’ by the law.” The provision is thus designed to prevent districts being drawn in ways that dilute minority voting strengths in ways that eliminate or minimize their ability to elect representatives to multimember bodies.
These statutory requirements generated a set of practical evidentiary burdens for Section 2 plaintiffs. (Section 2 cases have been brought by the Department of Justice and by private plaintiffs, usually represented by civil rights organizations.) One of the first steps in a Section 2 challenge to a districting map has long been for the plaintiffs to show that it would be possible to draw a different map that would provide minority voters with at least one additional district in which they would be a majority. Drawing such a map requires not only that there are enough such voters, but also that they are concentrated in relatively compact areas around which district lines can realistically be drawn. (Imagine, in contrast, a state that is 75% white and 25% minority but in which both populations are completely evenly distributed. Under those circumstances, it would probably be impossible to draw such a map.) Providing that map is a “precondition” to bringing the case.
Before Callais, this precondition was demanding. The plaintiffs’ “illustrative map,” to use the language of the case law, had to comply with the state’s regular redistricting criteria, such as compactness and keeping communities of interest or political subdivisions intact where possible. But Callais makes the precondition all but impossible to meet. One way Callais raises the bar is by requiring not only that the illustrative map incorporate “traditional districting criteria,” but that it also meet “all the State’s legitimate districting objectives, including … the State’s specified political goals.” More specifically, “[i]f a State’s aims in drawing a map include a target partisan distribution of voters, a specific margin of victory for certain incumbents, or any other goal not prohibited by the Constitution, the plaintiffs’ illustrative maps must achieve these goals just as well.”
To see how this might work in practice, look at what Tennessee has already done since Callais. The legislature there has drawn new maps to eliminate the only Congressional seat held by a Democrat, creating nine safe Republican districts. And it did so by eliminating the district that included the majority-Black county surrounding Memphis. That area has now been split into several different districts, in all of which Black voters are a minority. Under Callais, Section 2 challengers must provide an illustrative map that both provides for a minority-majority district and achieves the goal of an all-Republican Congressional delegation “just as well” as the legislature’s map.
This new requirement is likely impossible to meet in any state where, like Tennessee, race and partisanship are highly correlated. But the requirement is also very strange in light of Rucho’s holding that there are not judicially manageable standards for determining when partisan gerrymandering is unconstitutional. Recall that Rucho held that courts can’t tell when partisan gerrymandering has gone too far. But the Callais majority apparently thinks that courts will be able to tell when an illustrative map’s partisan gerrymandering hasn’t gone far enough. Thus, for example, in a Section 2 challenge to Tennessee’s new map, a court would have to decide if the illustrative map is gerrymandered enough to meet the state’s goal of an all-Republican congressional delegation as effectively as the state’s own map.
The requirement elevates the protection of partisan gerrymandering to a quasi-constitutional level. Congress’ clear command in the 1982 VRA amendments that it was protecting minority voters from redistricting that had the effect of reducing their voting power relative to other voters should mean that a state’s desire to advantage one party over another is irrelevant to Section 2 liability. Now, however, it is a defense. In this respect, as Ned Foley has pointed out, it essentially incorporates the law of unconstitutional intentional discrimination into Section 2 – precisely what Congress was trying to avoid. But Callais also all but holds that Congress’ power under the 15th Amendment is limited to restricting discriminatory intent, not discriminatory effects.
So as we are seeing states across the South reconvene their legislatures to draw new congressional maps that eliminate majority-minority congressional and state legislative districts, does Congress have any other legislative tools? Let’s look at the guarantee clause, which, again, provides that “[t]he United States shall guarantee to every State in this Union a Republican Form of Government.” The Supreme Court has long held, and indeed reiterated in Rucho, that the guarantee clause presents nonjusticiable political questions. In other words, courts can’t determine when the republican-form-of-government guarantee has been breached or what kinds of remedies might be required. Those decisions are instead for the political branches, including, as in partisan gerrymandering, the states.
Although Congress has rarely relied on the guarantee clause, it in fact opens up opportunities for congressional action, as I argued in my article, Democracy, Federalism, and the Guarantee Clause. For the Framers, there was general agreement that a republican form of government meant two things: (1) some kind of representative democracy, with leaders chosen by the people, and (2) no monarchy. There was lots of disagreement about the particulars of the first point, and of course the Framers were perfectly comfortable with a representative democracy that excluded more than half of the actual people from voting, including enslaved people, people of color, women, and, in some states, non-property owning white men. But they did agree on some general goals that animated the clause: a need to keep despotism at bay and a belief that the country could not survive if the states developed incompatible forms of government. The guarantee clause is thus both “a mutual nonaggression pact” and a “structural promise” that the national government would protect states from such incompatibility.
Under this reading of the guarantee clause, it is entirely appropriate for Congress to do what it concludes is necessary to keep that promise. Current political circumstances are a modern-day analogue to the Framers’ concerns about tyranny. Most immediately, heavily gerrymandered Republican legislatures are meeting right now to gerrymander still further to reduce Democratic representation in the national legislature as much as possible. Those new gerrymanders could easily give control of the House of Representatives to Republicans despite a majority of voters preferring Democrats. But there are plenty of other ways that anti-democratic practices in one state can have spillover effects in others and, as we are increasingly seeing, can help erode our national cohesion.
The upshot is this: if Democrats are ever in a position to act, they should not only outlaw partisan gerrymandering in congressional redistricting under the elections clause, which they have previously attempted to do, but also outlaw it for state legislatures pursuant to the guarantee clause, which they have not. Such legislation would absolutely not replace the VRA, but because minority voters, especially in the South, are disproportionately being excluded from representation by partisan gerrymandering, it would ameliorate some of the worst immediate effects of Callais.
In the meantime, pro-democracy states themselves can also take action inspired by the guarantee clause. For example, states can pass a variety of trigger laws, promising, for example, to eliminate partisan gerrymandering if a critical mass of other states do so as well. Yet states can be even more creative. Perhaps, for instance, some states will decide that they do not want to buy products or services from states that do not have meaningful representative democracies. Perhaps they will regulate what can be sold in their own states in ways that affect industries in anti-democratic states or prohibit the sale of goods from certain states altogether. Such laws would undoubtedly face challenges under, for example, the dormant commerce clause because they could be seen as states trying to restrict or discriminate against interstate commerce (though some of the laws I’ve described here might well survive such a challenge.) But if such laws are tied to a concern for compatible forms of government and have triggers for automatic repeal if Congress adequately acts on the guarantee, they should be understood as an effort to demand what the Constitution promises.
And if we are to take Alito at his word, the political branches’ reliance on the guarantee clause should be affirmatively protected from court interference. If Congress is trying to exercise guarantee clause power or states are trying to call for its use, there is no place for court review. Or, at most, challengers to those actions should have to show that the same ends could be accomplished using other methods. Such is the power of the political question.
To be clear, I don’t actually think that the court, or at least this court, would treat efforts to enforce the guarantee clause as worthy of the same kind of protection as partisan gerrymandering. Rather, I think this court would thwart attempts by Congress to regulate states’ anti-democratic practices, regardless of what the Constitution and case law say, and likely would be hostile to states’ efforts to respond as well. So don’t misread me. There are no constitutional magic wands, no perfect laws that will restore us on a path to robust multiracial democracy. (Court reform is clearly essential, and I’ll return to that question at another time.) The fight for multiracial democracy requires deep tenacity and creativity. One tactic can be passing laws that might get struck down. Such laws can send important political messages and serve as organizing tools – and some of them might be upheld. We can take inspiration from the words of the late, great John Lewis: “Speak up. Speak out. Get in the way. Get in good trouble, necessary trouble, and help redeem the soul of America.”