I continue to look for good legal analyses of Louisiana v. Callais. The best I’ve found so far is from Edward Foley at SCOTUSBlog. Suffice it to say he doesn’t think much of the majority decision. Here’s a snippet:
Alito’s opinion for the court in Callais is an altogether different matter. Unlike Shelby County or Brnovich, Callais is an abomination.
Callais purports to interpret VRA’s Section 2, but it destroys the central meaning of the section, converting it into the exact opposite of what Congress meant for it to do. The one thing that is unambiguous about Section 2 is that the 1982 amendment to the section’s text creates a “results” test for determining whether there is liability under the section, replacing the “intent” test that the Supreme Court had previously adopted for Section 2 claims. As the text states, no “standard, practice, or procedure shall be imposed … which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race.” Yet Callais defiantly converts Section 2 back to an intent inquiry rather than a results analysis.
In various passages in the Callais majority opinion, Alito denies substituting an intent test for the statute’s explicit “results” standard, saying that evidence of intent is only to be considered as relevant to the results determination. Specifically, he says that the court’s “interpretation does not demand a finding of intentional discrimination,” while acknowledging that “it imposes liability only when the circumstances give rise to a strong inference that intentional discrimination occurred.” But the bulk of Alito’s opinion belies that the consideration of intent is at all limited in the way he suggests. Instead, it is manifest that intent has become the touchstone of the entire Section 2 inquiry. When discussing the specific facts of the case, Alito faults the Section 2 claimants for “fail[ing] to show an objective likelihood of intentional discrimination based on the totality of circumstances.” Moreover, when setting forth the threshold perquisites that any Section 2 plaintiff must establish before having any chance of prevailing, Alito categorically states that plaintiffs must “demonstrate that the State’s chosen map was driven by racial considerations rather than permissible aims.” It’s undeniable that “driven by racial considerations” is an intent, not results, requirement.
It continues in that vein.
Most of the commentary I’ve read has focused on the policy aspects of the decision rather than the legal ones so I found an analysis that relies more on the law refreshing. Perhaps more will appear over time.
I think this piece from Professor Pildes at NYU Law is pretty accurate, and he should at least be given some credit in that he wrote that Gingles would be reversed back in 2007. He argues that it hadn’t because Republicans were at piece with it and the SCOTUS didn’t get a chance to do. I think this is because Republican gerrymandering is entirely consistent with black majority districts. He says what changed is that district courts started mandating 50% plus one majority-minority districts after the 2020 census based upon new computing technology, the opportunity came.
https://democracyproject.org/posts/supreme-court%E2%80%99s-gutting-of-voting-provision-was-long-time-coming
Another thing to read would be Thomas’ short concurrence. This is key half (without citations to court opinions):
“As I explained more than 30 years ago, I would go further and hold that §2 of the Voting Rights Act does not regulate districting at all. The relevant text prohibits States from imposing or applying a “voting qualification,” “prerequisite to voting,” or “standard, practice, or procedure,” in a manner that results in a denial or abridgement of the right to vote based on race. 52 U. S. C. §10301(a). How States draw district lines does not fall within any of those three categories. The words in §2 instead reach only enactments that regulate citizens’ access to the ballot or the processes for counting a ballot; they do not include a State’s choice of one districting scheme over another. Therefore, no §2 challenge to districting should ever succeed.”
He was only joined by Gorsuch, but there might be a majority of the court who agrees with this, but either favor incrementalism, some deference to stare decisis, or a more functional approach. A functional view is that the key objection to requiring states to use race in districting decisions for so-called benign purposes necessitates a remedy when states use race in districting decision for non-benign purposes.
I asked Chat-GPT and it claims that the 1982 amendment, as cited by Foley, does make the results test and not intent the key issue.
“1982 Amendment to the Voting Rights Act
Introduction of the “Results Test”
The 1982 amendment to the Voting Rights Act introduced a significant change to Section 2 by adding a “results test.” This test prohibits any voting law that has a discriminatory effect on minority voters, regardless of whether the law was enacted with discriminatory intent.
Key Features of the Results Test
Discriminatory Effect: The results test allows voters to challenge electoral systems based on their impact on minority voting power.
Shift in Litigation: This amendment shifted the focus of legal challenges from claims of intentional discrimination to those based on the effects of voting laws.”
Steve