Ardoin v. Robinson could foreshadow a new age of widespread racial gerrymandering.
The Supreme Court handed down a brief order Tuesday evening that effectively reinstates racially gerrymandered congressional maps in the state of Louisiana, at least for the 2022 election.
Under these maps, Black voters will control just one of Louisiana’s six congressional seats, despite the fact that African Americans make up nearly a third of the state’s population. Thus, the Court’s decision in Ardoin v. Robinson means that Black people will have half as much congressional representation as they would enjoy under maps where Black voters have as much opportunity to elect their own preferred candidate as white people in Louisiana.
A federal trial court, applying longstanding Supreme Court precedents holding that the Voting Rights Act does not permit such racial gerrymanders, issued a preliminary injunction temporarily striking down the Louisiana maps and ordering the state legislature to draw new ones that include two Black-majority districts. Notably, a very conservative panel of the United States Court of Appeals for the Fifth Circuit denied the state’s request to stay the trial court’s decision — a sign that Louisiana’s maps were such a clear violation of the Voting Rights Act that even one of the most conservative appeals courts in the country could not find a good reason to disturb the trial court’s decision.
As the Fifth Circuit explained, current law typically forbids maps that dilute a particular racial group’s voting power, at least when that group is “sufficiently large and compact to form a majority” in additional congressional districts, when it “votes cohesively” and when “whites tend to vote as a bloc” to defeat the minority group’s preferred candidates.
Nevertheless, the Supreme Court voted 6-3 along party lines to stay the trial court’s injunction, effectively reinstating the gerrymandered maps. The Court’s order is only one page, and it provides no substantive explanation of why the Court’s Republican appointees voted to effectively strip Black Louisianans of half of their representation in the US House of Representatives.
The Supreme Court’s order in Ardoin does, however, contain a hint about what might be going on in the conservative justices’ heads: It references a decision from last winter involving a similar case out of Alabama.
Last February, the Court handed down an order in Merrill v. Milligan that temporarily reinstated maps in Alabama that a panel of three federal judges determined were illegally racially gerrymandered. Under those maps, Black voters have a real shot at determining who represents only one of Alabama’s seven districts — or 14 percent of those districts. Meanwhile, African Americans make up about 27 percent of the state’s population. So the Alabama maps, much like the Louisiana maps that the Court just temporarily reinstated in Ardoin, give Black people about half as much representation as they should have based on their share of the state’s total population.
The Court will hear oral arguments in the Merrill case in October, and then it will decide whether to make its temporary order in that case permanent — allowing Alabama to use its racially gerrymandered map until the next redistricting cycle begins in the 2030s.
In March, moreover, the Court voted to strike down Wisconsin’s state legislative maps, warning that those maps may have given too much influence to Black voters. That decision suggested that, before a state may voluntarily decide to add an additional Black-majority district, it must consider “whether a race-neutral alternative that did not add [one more] black district would deny black voters equal political opportunity.”
The Court’s new order in Ardoin states that the justices will hold onto the Louisiana case “pending this Court’s decision” in Merrill. The Court, in other words, appears to view Ardoin and Merrill as very similar cases, and it most likely plans to hand down a new rule governing racial gerrymandering cases that will resolve both cases.
Taken together, the Court’s orders in Merrill, Ardoin, and the Wisconsin case suggest that the justices are skeptical of current rules, which provide fairly robust protections against racial gerrymandering, and plan to replace those rules with a new regime that is likely less friendly to Black voters — and most likely to minority voters generally. None of these three orders was particularly well explained, but the pattern is that, in each case, the Court ruled against efforts to draw maps that expand Black political power.
It is unclear what this new regime will look like — again, none of the Court’s three recent racial gerrymandering decisions are particularly fleshed out. And it’s at least theoretically possible that the Court’s final decision in Merrill will uphold current law and strike down Alabama’s maps.
But the Court’s Republican majority is notoriously hostile to voting rights plaintiffs and to the Voting Rights Act in particular. So the future of American election law is likely to be much more hostile to Black (and other minority) interests than current law.