Post

10:00 AM ET: We’re minutes away from oral arguments kicking off. Democracy Docket’s Managing Editor Zachary Roth says, “Callais presents a huge threat to minority voting power, and that matters regardless of partisanship. But it also presents a huge threat...to any notion of fair elections.”

10:10 AM ET: Thomas opens questioning of Janai Nelson, the lawyer defending the map. The new map was drawn after a court ruled LA's old map would likely violate the VRA in a PI hearing. Thomas suggests he might just rule that the map can't be redrawn on a PI and ignore the question here entirely.

10:20 AM ET: Counsel for Black voters argue that Section 2 is necessary to remedy racial discrimination. They point out that the Robinson record already proved ongoing racial discrimination and vote dilution in LA, including extreme racially polarized voting in recent elections.

10:25 AM ET: Several Justices questioned counsel for Black voters about LA's argument that its redistricting choices were based on protecting incumbents and partisan advantage. Counsel for Black voters cautioned that accepting this rationale "would swallow Section 2 whole."

10:26 AM ET: Kavanaugh states that SCOTUS has required durational limits of the use of race, and asks what the time limit is for the end of the framework for the use of race in Section 2. Barrett echos the question.

This means the three potential "swing" justices start with skeptical questions. To prevail, proponents of the VRA test need two out of three to agree.

10:27 AM ET: After Kavanaugh and Barrett's questions, Jackson jumps in to try to suggest that, unlike the preclearance sections struck down in Shelby County, Section 2 doesn't have a time limit and doesn't need one, because there's no time limit on the protection of the 15th Amendment.

10:33 AM ET: Black voters say that if LA relied on race more than necessary, the flaw lies with the specific map — not with Section 2 itself. Counsel for Black voters argue the remedy would be to redraw the map, not to upend decades of Section 2 jurisprudence.

10:35 AM ET: Alito questioned counsel for Black voters about the Gingles factors developed by the court. Prof. @rickhasen.bsky.social of UCLA Law previously suggested that Alito might do what he did in 2021 Brnovich v. DNC, and write a convoluted opinion that narrows Section 2 into oblivion.

10:41 AM ET: Counsel for Black voters reject Section 2's comparison to affirmative action in college admissions, emphasizing that Section 2 permits race-conscious redistricting only when necessary to remedy specific, proven instances of racial discrimination.

10:50 AM ET: Barrett asked if the state had a compelling interest despite believing the Robinson court was wrong in finding a VRA violation. Black voters say it's still compelling that it was upheld by two courts. Jackson adds that achieving an equal electoral system is THE compelling interest.

10:59 AM ET: Kagan points out to a lawyer for Louisiana that the "government mandated racial balancing" he says violates the 15th Amendment is being done in response to a "specific, proven incident of racial discrimination" by the state.

11:09 AM ET: Counsel for LA argues that Section 2 is no longer necessary, claiming that Black voters rely solely on the state's past history of discrimination to justify their claims. LA also seems to be building on Kavanaugh's earlier suggestion that Section 2's remedies might be time-limited.

11:15 AM ET: Louisiana says it supports any tweaks to the Gingles analysis that brings clarity to Section 2 analysis. This could bring a new wave of litigation.

11:22 AM ET: Kavanaugh noted that Black candidates in Louisiana have been elected only from majority-minority districts and asked what would happen if those districts were dismantled. LA downplayed the concern, saying, "There has been a lot of 'sky is falling' in this case."

11:28 AM ET: Edward Greim is now arguing on behalf of the "non-African American" plaintiffs in the case. He argued the Constitution is color-blind and the statutes enforcing it should be as well.

This claim is difficult to square with the 14th & 15th Amendments, which were not enacted in a race-neutral manner. They were explicitly designed to combat racial discrimination and protect the rights of newly freed Black Americans.

11:35 AM ET: Kagan asks why Louisiana is claiming that enforcing Section 2 requires "stereotyping" voters. She says that, in fact, the factors needed to prove a Section 2 violation are about racially polarized housing and voting. That's just data, she argues.

11:37 AM ET: If SCOTUS doesn't eliminate VRA districts entirely, Greim is pushing to make Sec. 2 claims harder to prove. Until now, the Court has held that discriminatory voting practices can be struck down under Sec. 2 even without proof so long as their effects dilute minority voting power.

11:41 AM ET: Kagan notes that LA and "non-African American" voters are pushing for an intentionality requirement to racial discrimination under VRA...which SCOTUS did in 1980...which led to Congress amending Sec. 2 to explicitly ban discrimination...which was done through the 15th Amendment.

11:50 AM ET: Sotomayor doesn't seem interested in the U.S. government's arguments to tweak the Gingles factors, because "statutory precedents are entitled to far greater stare decisis protection" than when the question is constitutionality.

Today, the court is deciding whether VRA remedies violate the 14th & 15th Amendment. If it were deciding how to interpret the VRA, then it should theoretically be harder to aggressively narrow Sec. 2's scope — as the U.S. government suggests.

12:00 PM ET: Alito seems to buy the U.S. government's argument, which could mean a narrowing of the VRA purporting to uphold the court's precedents in Milligan, Gingles and other cases.