Is It Woke Gerrymandering or Equitable Redistricting?

Federal laws governing congressional redistricting present a complex dilemma for states seeking to design voting districts to avoid racial discrimination. The practice of drawing boundaries to favor one political party is called gerrymandering. A Louisiana redistricting case pending before the US Supreme Court displays the “damned if you do, damned if you don’t” tension between the Voting Rights Act of 1965 – which requires consideration of race – and the Equal Protection Clause of the US Constitution, which prohibits discrimination based on skin color.

The Mark of Zorro

Louisiana’s effort to comply fairly with conflicting federal laws illustrates a rock-and-a-hard-place difficulty. Following its 1990 Census, the state sought to create a second majority-black congressional district that one court described as “[l]ike the fictional swordsman Zorro, when making his signature mark ... slash[ed] a giant but somewhat shaky ‘Z’ across the state.” This scheme was successfully challenged in court, leading the Louisiana legislature to take another stab at the situation. The second try resembled “an inkblot which has spread indiscriminately across the Louisiana map.” Again, the court determined this was an unconstitutional racial gerrymandering, and it was struck down.

Following its 2020 Census, Louisiana tried yet again, reverting to a single black-majority district, which was challenged as violating the Voting Rights Act because it “diluted the votes of Black Louisianians.” This, too, was contested in district court, which ordered the state to create a second majority-black district. In 2024, Louisiana made another attempt, noting the task had become even more difficult as integration had further changed the demographics of its mapping efforts. It created a second majority-minority district, SB8, that looked like a jigsaw puzzle piece.

The US District Court for the Middle District of Louisiana struck down this plan as well, finding that racial gerrymandering, even for remedial purposes, violated the Equal Protection Clause of the Constitution. The case has been appealed to the US Supreme Court, which has been asked to resolve the longstanding tension between the Voting Rights Act and Equal Protection Clause for the benefit of all states seeking to craft constitutional congressional districts in time for the 2026 election season.

Equity in the Court?

An amicus curiae (friends of the court) brief in support of the district court’s ruling succinctly posed the question for the Supreme Court and the nation: How can the Constitution be color-blind while enforcement of the Fifteenth Amendment mandates race-based districting? Filed by Judicial Watch and the Allied Educational Foundation (AEF), the brief argued:

“There is an inherent inconsistency between this Court’s framework for vote dilution claims under § 2 of the VRA and its Equal Protection Clause jurisprudence. The former mandates racial districting under the Fifteenth Amendment while the latter provides that our Constitution is color blind ... While these conflicting mandates have put Louisiana in an untenable position, SB8 nevertheless is a racial gerrymander …

“Ultimately, there is no textual basis for exempting voting and districting from the Constitution’s color-blind mandate. The Fifteenth Amendment’s text prohibits denial or abridgment of the right to vote ‘on account of race, color, or previous condition of servitude,’ which Congress is authorized to enforce.”

Past and Future Gerrymandering

The term gerrymandering arose from an amusing (in hindsight) 1812 effort by Massachusetts Gov. Elbridge Gerry’s administration to define new state senatorial districts that disproportionately favored his Democratic-Republican base over the Federalist Party by consolidating the latter in a few districts. The resulting outline of one district resembled a salamander, leading a Boston Gazette cartoonist to satirize the governor’s creation as a “Gerry-mander.”

Louisiana has been caught in a federal law crossfire between the Equal Protection Clause and the Voting Rights Act of 1965, jumping from Zorro’s “Z” to an inkblot and then a puzzle piece that was struck down at the trial court level and now awaits a Supreme Court unraveling. The amicus brief noted that states require redistricting guidance going forward, and thus “it is important for the public and state legislatures to have clear statement as to why there is voting exception to the Constitution’s color-blind mandate and how it can be implemented.”

The nation desires racial fairness and amicability: one man’s gerrymandering is another’s equity. It will be interesting to see what shape that takes before the Supreme Court.