Thomas leaves nothing left unsaid on racial gerrymandering decision: ‘go further’

Justice Clarence Thomas said Wednesday the Supreme Court should go further than its latest Voting Rights Act ruling, arguing the law’s key anti-discrimination provision was divisive and should never apply to redistricting cases. 

“As I explained more than 30 years ago, I would go further and hold that [section two] of the Voting Rights Act does not regulate districting at all,” Thomas, who was joined by Justice Neil Gorsuch, wrote in a concurrence.

Thomas’s remarks came as part of the Supreme Court’s 6-3 decision in Louisiana v. Callais, which upheld a finding that one of the state’s majority-Black congressional districts was an unconstitutional racial gerrymander. 

The decision had broad implications, serving to narrow section two of the Voting Rights Act, a civil rights-era law making it illegal for voting policies to discriminate based on race. The ruling already restricted states’ ability to use race as a factor when drawing majority-minority districts, but Thomas’ concurrence went further, saying the statute should not be used for redistricting at all.

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“Today’s decision should largely put an end to this ‘disastrous misadventure’ in voting-rights jurisprudence,” Thomas wrote, quoting himself from a 1994 concurrence.

Thomas argued the high court’s prior interpretations of section two of the Voting Rights Act have encouraged states to engage in discriminatory race-based map drawing. He said the text of section two covers access to ballots and voting procedures, not how states draw district lines, and that it should therefore not be used in lawsuits about maps at all.

Thomas, an appointee of President George H. W. Bush, has long advocated gutting the Voting Rights Act provision. The conservative justice, the second Black justice in history after Justice Thurgood Marshall, said in the 1994 case, Holder v. Hall, that people who use section two of the law to claim redrawn districts have diluted racial minorities’ votes are reading it incorrectly.

“The assumptions upon which our vote dilution decisions have been based should be repugnant to any nation that strives for the ideal of a color blind Constitution,” Thomas wrote at the time.

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The majority opinion, authored by Justice Samuel Alito, stopped short of Thomas’ position. Alito wrote that while compliance with the Voting Rights Act could sometimes involve the use of race, Louisiana was not required to create a second majority-Black district, meaning its map was unconstitutional.

“‘Our acceptance of race-based state action has been rare for a reason,'” Alito wrote, saying Louisiana had “no compelling interest” in packing Black voters into the district.

The yearslong case arose from Louisiana’s redistricting efforts after the 2020 census, during which the state added a second majority-Black district after a lower court said the Voting Rights Act required it. That new map was then struck down as a racial gerrymander, setting up the new lawsuit that rose to the Supreme Court.

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The three liberal justices argued in a dissent, authored by Justice Elena Kagan, an Obama appointee, that the majority’s decision, and Thomas’ more stringent view, stripped protections against diluting racial minorities’ votes. The decision “renders Section 2 all but dead letter,” Kagan wrote.

“Under the Court’s new view of Section 2, a State can, without legal consequence, systematically dilute minority citizens’ voting power,” she wrote.