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Abstract

By summer 2026, the U.S. Supreme Court will have finally decided Louisiana v. Callais, which asks whether the state’s intentional creation of a second majority-minority congressional district as a remedy for racial vote dilution violates the Fourteenth or Fifteenth Amendment. In plainer language, the impending judgment in the case twice argued before the Court will determine the constitutionality of Section 2 of the Voting Rights Act (VRA)—and with it, the future of legal doctrine governing the use of race in redistricting. Yet that is not the only issue that the case presents nor, crucially, the most important. This Article contends that in its looming decision in Callais, the Court will issue its judgment on a far more existential question: Is multi- racial democracy constitutional? Unfortunately, the Court seems poised to answer no. But the decision in Callais will be quite telling in either case. It will provide valuable insights that help us evaluate the democratic legitimacy—or here, deficits therein—of institutions that are key to our multiracial constitutional order, including but not limited to the Supreme Court itself.

This Article proceeds in three parts. Part I of this Article offers a historical overview of the constitutional law and politics of race in redistricting. It is a descriptive, yet critical, offering a narrative overview that tracks the constitutional development of the racial-political thicket from the mid-twentieth century until today. The Court has been a central actor in its development over the course of that period. As this Part shows, it initially embraced the necessity to account for race in redistricting law before trying to erase that paradigm, which has us now bracing for the new law of race in redistricting according to Callais. Importantly, Part I highlights key concepts in the law and politics of race in redistricting that are critical to understanding why Callais presents the weightier question that asks whether multiracial democracy is constitutional as we prepare for the Court’s response. The historical narrative in Part I is valuable, including for collective memory, which reveals that the “constitutional” concerns in this area of redistricting are problems of the Court’s own creation. Still, Part I suggests that the Court could stave off further damage by reaffirming the constitutionality of Section 2 as it operates under the present Gingles framework—a simple re-ratification of its approach from as recently as 2023. If the Court were to rule against the Callais plaintiffs in this way, it would do its part to maintain the relative equilibrium that currently holds in the law of race in redistricting. Yet to disrupt the balance would suggest that the Court believes multiracial democracy is, indeed, unconstitutional.

Part II takes seriously the possibility—even probability—that the Supreme Court will upend the constitutional status quo. Should this sad assumption come to fruition, Part II argues that there are two broad paths that the Court could take in Callais to get there. The Court can inject additional tension into Section 2 doctrine in ways that suggests partisanship must be the pivotal focus of redistricting contests, even in racial vote dilution litigation. This approach would likely have the Court drawing on its 2019 Rucho v. Common Cause decision and stretching its principles for support. Or the Court could reverse Merrill v. Milligan, which upheld Section 2 and the Gingles framework just a few years ago, insisting, instead, that a maximalist vision of color-blindness govern the law of redistricting. In a real sense, however, it scarcely matters which of these paths the Court chooses, Part II argues, because they lead to the same end. They will make it exceedingly difficult to virtually impossible for racial minorities to succeed on Section 2 vote dilution claims. A victory for the Callais plaintiffs would condone electoral map-rigging by state officials—perhaps intentionally, but certainly effectively—and sanction as constitutional regulations that whiten U.S. lawmaking bodies. Perhaps more importantly, Part II also analyzes the Court’s winding journey to Callais that makes these terminal paths to VRA available, arguing that it is littered in ways that reveal its uncomfortable similarities to those taken during the lawless periods before and after Reconstruction. The political and legal conduct during those earlier periods was unquestionably antithetic al to multiracial democracy, and the paths available to eliminate what remains of the VRA would work the same end. A Court displacing the current Section 2 paradigm employs an updated edition of the same playbook to communicate a corresponding grave message. The Court will have declared multi-racial democracy unconstitutional, even if not in so many words.

Though less than optimistic, the Article concludes with reflections that may be perceived as glimmers of hope. They high-light the importance of dissent—for its authority through truth—telling and, hopefully, its power to agitate—particularly during this time. One should expect a powerful dissent in a Callais decision. While a majority of the Supreme Court may rule in a way that suggests multiracial democracy is not constitutional, others—on the Court and beyond—will have the opportunity to offer their rebuttal to proclaim that it is, in fact, constitutional. If the nation desires to be a multiracial democracy in the future (and certainly if it wants to stand for the future of multiracial democracy), it will have to consider multiracial democracy reform no matter how Callais is decided.

Ultimately, the Article is a plea for the sixty- year-old VRA, as well as a reflection on the law the of race in redistricting penned from the metaphorical eye of the storm. Its analysis is particularly timely as the nation commemorates its semiquincentennial and, more soberingly, the passage of one hundred and fifty years since the end of the first Reconstruction that marked the triumph of the Redemption. The Article is, admittedly, variable in tone, ranging from cerebral to dry-humored and, at times, even irreverent. Opting for a more confrontational synthesis of developments over a conciliatory sanitization of events, it makes no effort to conceal the wide range of emotions experienced as a witness to the VRA’s slow demise or to blur the authenticity of voice that drives critical and reform-oriented legal scholarship. Examining the major impulses that have proven influential in the law of race in redistricting that has Section 2 imperiled in Callais and drawing on the work of other thinkers, this Article is the first in a multi-part project that seeks to enrich ongoing conversations about U.S. multiracial democracy occurring in the legal academy and beyond, ultimately calling for deeper scholarship on the phenomenon. Crucially, the Article suggests that even if Section 2 does not fall victim to the Callais Court this time, the law—and multiracial democracy—remains exposed. Thus, however the Supreme Court decides the case—and with it, the fate of the 1965 VRA—there will be great need for a meaningful political response that both engages and stimulates legal scholarship about the future of multiracial democracy in the United States.

Volume

110

Issue

6

Page

2717

Year

2026

Rights

http://rightsstatements.org/vocab/InC-EDU/1.0/

Publication Abbreviation

Minn. L. Rev.

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