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The U.S. Supreme Court’s decision in a Louisiana voting rights case will make it harder to challenge political maps as being racially discriminatory, but the ruling will likely have limited effect on statewide district maps in Pennsylvania, where the state constitution provides stronger protections against gerrymandering.
On Wednesday, the U.S. Supreme Court issued a 6-3 decision split along ideological lines that raises the bar for proving illegal racial gerrymandering.
The case revolved around Section 2 of the Voting Rights Act, a Civil Rights era protection that prohibits racial discrimination in voting and has historically been used to challenge how voting districts are drawn and require that members of a racial minority have an equal opportunity to elect candidates of their choice. In the most recent round of redistricting, Louisiana’s legislature drew a map that would create a second congressional district that was majority-Black, instead of the single majority-Black district it had previously. The new map was challenged on the grounds that it explicitly used race as the basis in determining the districts.
“Allowing race to play any part in government decisionmaking represents a departure from the constitutional rule that applies in almost every other context,” conservative Justice Samuel Alito wrote for the majority. He argued that compliance with Section 2 “could not justify the state’s use of race-based redistricting here.”
Election law experts in Pennsylvania have said in the past that Section 2 hasn’t had much of an impact in the state.
Chris Fowler, a geography professor at Penn State University, said that’s because there hasn’t been a clear advantage for mapmakers of either party in drawing majority-minority districts.
Most of the people of color in Pennsylvania are concentrated in its major cities. Minority voters in Philadelphia, a heavily Black city, are generally already concentrated in districts where their numbers allow them to elect preferred candidates. Meanwhile, Pittsburgh has a smaller minority population, and Black communities in the city tend to be geographically intermixed with communities of other races. More racially mixed communities and less consistent racial bloc voting make claims under Section 2 harder to bring in Pennsylvania than in the South.
So while the Voting Rights Act remains relevant in the state and communities of color exist, Fowler said there are “very idiosyncratic reasons that it would be hard to win a case” on those grounds in Pennsylvania.
”It's not necessary to draw a racially gerrymandered district to gain advantage,” he said. “I think both parties sort of know it and they come up with maps that are pretty bland when it comes to racial gerrymandering.”
Ben Geffen, a lawyer at the Philadelphia-based nonprofit Public Interest Law Center, agreed that Section 2’s relevance in Pennsylvania has been limited, aside from the general background rule it created — that you cannot discriminate racially when drawing districts — and the implications it has had for the growing Latino population in the northeast part of the state.
Section 2 has been invoked at the local level. Toward the end of President Joe Biden’s administration, his Department of Justice brought a case against Hazleton, alleging that its at-large method of electing city council members was diluting the power of Hispanic voters. Donald Trump’s Justice Department dropped that case. The Hazleton Area School District is currently facing a similar accusation that its at-large elections lock Hispanic voters out “from electing candidates of their choice.”
But Geffen has concerns about the Callais decision that extend beyond Pennsylvania. Namely, that more states may turn to drawing partisan gerrymanders, which the Supreme Court ruled in 2019 in Rucho v. Common Cause that federal courts cannot review. He worries the overlap of racial and partisan voting trends could produce similar maps that are harder to challenge.
Pennsylvania, however, has dealt with partisan gerrymandered maps several times in recent years, and the state’s Supreme Court has struck them down. Geffen said that’s because rules about fairness are much stronger in state law than they are federally.
“Our [state] Supreme Court has said the [state] constitution prohibits partisan gerrymandering, so state lawmakers can’t brazenly draw maps for partisan gains,” he said. “I think that has put important boundaries on what map makers do here that helps avoid the excesses we see in other parts of the country.”
Marian Schneider, an adjunct professor of law at Villanova University, said that in her two decades practicing election law in Pennsylvania she has only pursued one case related to Section 2. She agreed state law protections are stronger, and said there may be a path to bring the types of arguments in state court that a plaintiff might have previously made in federal court under Section 2.
But Schneider said that regardless of Section 2’s historically limited role in Pennsylvania, Wednesday’s ruling will have an effect on the state’s voters.
“Knowing that other states could engage in suppression of minority voters, we are all affected by that, because if they are not truly electing people that reflect the voters, what happens in Congress affects all of us,” she said.
Carter Walker is a reporter for Votebeat in partnership with Spotlight PA. Contact Carter at cwalker@votebeat.org.