Abstract

Excerpted From: Wilfred U. Codrington III, Is Multiracial Democracy Constitutional? Some Reflections from the Eye of the Storm, 110 Minn. L. Rev. 2717 (June 2026) (355 Footnotes) (Full Document)

The U.S. Supreme Court heard re-argument in Louisiana v. Callais on October 15, 2025, having scheduled the major redistricting case for very early in the 2025-26 Term. When the Court issues its judgment in Callais later in 2026, it will be the most important ruling on the Voting Rights Act (VRA) at least since Shelby County v. Holder. It may be the most important VRA ruling ever. Initially on the docket for the previous Term, the matter was set to be resolved by the summer of 2025. But at the last minute, the Justices decided not to decide. On the final day of the Term (and the same day it stayed lower court injunctions of President Donald Trump’s birthright citizenship executive order), the Court notified parties to the Callais litigation that instructions would be forthcoming concerning the fall reconsideration of the case. Had the Court decided Callais when it was scheduled to decide in 2025, its opinion likely would have addressed a few relatively technical questions, all concerning the remedial redistricting plan that Louisiana’s Republican-led state legislature adopted following a federal trial court ruling that its first plan likely violated Section 2 of the VRA. So, for example, did racial considerations or partisan ones predominantly motivate the state legislature’s choices in its drawing of congressional districts? And did lower courts properly apply precedent in evaluating the lawfulness of that same map?

But the Supreme Court’s new order was an extraordinary volte-face. Gone were those narrow, technical questions relating to the strength of evidence in the record and the meaning of legal precedent. In their place, a broader one now asks “[w]hether the State’s intentional creation of a second majority-minority congressional district violates the Fourteenth or Fifteenth Amendments to the U.S. Constitution.” Framed that way, the question camouflages the fact the Court is preparing to rule on the legality of the sole remaining pillar of VRA. More problematic, however, is that it understates woefully the gravity of what is actually at stake in Callais. Before the Justices is a question that is far more existential for the United States: Is multiracial democracy constitutional?

Devastatingly, an ominous sequence of events suggests that, for its own part, the Court is poised to answer in the negative. In place of multiracial democracy, a patently non-originalist, neo-Redemption Court seems poised to advance an alternate theory for the U.S. constitutional order. In just one opinion (though, perhaps multiple) flecked with ahistoric and anti- democratic prose, the Supreme Court may write the epilogue in the great American novel, with the tale concluding in a United States of the future--a belle epoque for contemporary antagonists of multiracial democracy seeking the restoration of white supremacist rule. But that can’t possibly be how the story concludes, can it?

The Article proceeds in three parts. Part I of this Article offers a historical overview of the constitutional law and politics of race in redistricting. Largely a descriptive account, Part I is still reflective--and critical--in its depiction of the broad arc of the law’s development, from the Supreme Court’s entry into the “political thicket” through today. Understanding this past is crucial. What it exposes is a rocky and uneven terrain leading up to the crossroad for multiracial democracy in the United States that is Callais--with racial minorities having been forced to clear the way. As Guy-Uriel Charles and Luis Fuentes-Rohwer write vividly, we have been “slouching toward universality.” For the post-Warren Court, however, universality has increasingly begun to suggest a colorblindness, which obscures its vision of what multiracial democracy in the United States should entail. Part I is valuable as historical narrative essential for collective memory, even if painful. But it is important also for highlighting key concepts in the law that governs race in redistricting which are integral to seeing that Callais presents a far weightier question that asks whether multiracial democracy is constitutional, and that the Court will soon offer its response. In doing so, Part I argues that the “constitutional” ills that have plagued multiracial democracy up to today are largely of the physician’s own creation and, sadly, that physician is the Court. Still, it need not go completely mad. Part I argues that the doctor can stave off further disease in Callais, namely by reaffirming Section 2 as it operates at present under the Gingles framework--just as the Court did as recently as 2023. Doing so would preserve the relative equilibrium that exists currently in the law of race in redistricting despite the tensions in it attributable to the Court. More central to this Article, however, disrupting that balance would suggest that the Court believes that multiracial democracy is unconstitutional.

In the event (a sad probability) that the Supreme Court decides to upend the status quo, we will find ourselves at the prologue, the possibility of a new and unfortunate beginning. This is set out in Part II, which 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 by discussing the case (and thus the VRA) in ways that suggest that partisanship should be the focal point in racial vote dilution litigation. This would increase the already frustratingly heavy evidentiary burden that racial minorities must bear to succeed on such claims. Or the Court can insist on a maximalist vision of colorblindness to govern future racial vote dilution claims. This would eliminate the tensions entirely--ironically by conflating doctrine governing statutory racial dilution claims authorized by the Fifteenth Amendment with the racial gerrymandering doctrine that the Court wrenched out of the Fourteenth Amendment--and with them, the remaining major provision of the VRA. The former approach would rely primarily on the 2019 decision in Rucho v. Common Cause. Contrary to what it said in Rucho, the Court actually did “condone ... excess partisan gerrymandering,” sanctioning that practice as constitutional after some fifty years of debate and despite its own admission that gerrymandering is “incompatible with democratic principles.” The latter approach would draw on an opinion in Allen v. Milligan, which upheld Section 2 and the Gingles framework just a few years ago. Yet it would not rely on the opinion that won the day. The opinion--or opinions--it would use for support are those of the concurrence and dissent. In this light, Milligan’s lead opinion could be understood as something of an outlier decision in what has otherwise been a steady stream of rulings leading to the Court’s colorblind conclusion. As Yuvraj Joshi might say, the plurality won out in Milligan because the sands of “racial time” ran out before the Court could invalidate Section 2. But the concurrence made clear that the sandglass would soon be flipped again. And like clockwork, the Court flipped it cynically--and with it, the question that Callais litigants presented initially--manufacturing the question challenging Section 2’s constitutionality. In a major sense, it scarcely matters which of these means the Court chooses, Part II argues, because their effects will be functionally the same; they will make it all but impossible for racial minorities to win Section 2 vote dilution claims.

Such would be the doctrinal impact of disclaiming the longstanding ““racial equality compromise” that has been core to the law governing race in redistricting, most notably the one that presumes state measures that comply with Section 2 of the VRA are themselves constitutional. More significant, however, are the practical consequences of a ruling crippling Section 2 or invalidating it. A victory for the Callais plaintiffs would condone map-rigging by officials--perhaps intentionally, but certainly effectively--by constitutionalizing acts that whiten lawmaking bodies across the country. Each of the doctrinal approaches that the Court might take to deliver the plaintiffs a win bears an uncanny resemblance to the tactics employed during the lurid and lawless periods before and after Reconstruction, and they would work the same end. The conduct during those periods was unquestionably antithetical to multiracial democracy. Part II argues that a Court displacing the current paradigm later this year would communicate a similarly grave message. The Court will have declared multiracial democracy unconstitutional, though not in so many words.

The Article concludes briefly, though perhaps not as optimistically as one might desire, with a nod to potential silver-plated linings. This includes, at a minimum, the vital importance of dissent--truth-telling and, hopefully, agitating--which one should also expect to see. It suggests that even if the Court’s response is “No, multiracial democracy is not constitutional,” other institutions and actors can reply “Yes, indeed, it is--and must be.” If the nation envisions multiracial democracy featuring prominently in its epilogue, then the next chapter must include serious reflection about the means and ends of multiracial democracy reform.

Ultimately, what follows is a plea for the VRA, drafted in the lead up to the Supreme Court’s ruling in Callais. With the Chief Justice having declared ““the case is submitted” and the ruling imminent, it might more aptly be considered a reflection on the law, penned from the eye of the storm. Maybe it is an ode to the weather worn civil rights statute shortly after its sixtieth birthday and, incidentally, as the nation marks its semi quincentennial-- exactly two hundred and fifty years since thirteen Atlantic colonies declared the “self-evident” truth, that “Governments are instituted among Men, deriving their just powers from the consent of the governed.” Or, perhaps in retrospect, this Article will turn out to have been a eulogy for the VRA, written in its final months to be read (incidentally, one hundred and fifty years since the demise of the first Reconstruction) from the storm-soaked pages of the diary of a Mad Black Man--who just happens to be a scholar of election law and the U.S. Constitution--telling it how it is, was, and very well may be.

At times cautiously hopeful, but more often evincing despair, this Article is, admittedly, variable in tone. Jocular and dry-humored, colloquial yet cerebral (and at times even irreverent), it makes no attempt to conceal the wide range of emotions one reasonably experiences bearing witness to the tragicomedy that has been the slow unraveling of the VRA. A meditation and an indictment, a warning and a call to action, it accords with a historic intellectual tradition that, in substance and style, betrays an unapologetic-- at times strident--skepticism that is uniquely characteristic of a people whose ancestors have been both “major victims in Constitutional history, but ... also its principal heroes.” The Article is critical--in its analysis of the events and decisions that led to the present, and of the Court that, in large part, is responsible for them--seeking to carry on with what Derrick Bell identified as an all-too-“familiar function for black people, one that is as necessary today as when the Constitution was drafted.” In its commendation, condemnation, and despondence, this Article, however characterized, endeavors at an earnest and fair account of what has been presented in the Callais litigation--“fairly” and otherwise. Perhaps a small addition at an inauspicious moment, 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, and ultimately calls for deeper scholarship on the phenomenon. Analyzing the major impulses that have driven the law of race in redistricting up to and including Callais that has Section 2 imperiled, and drawing on the work of other thinkers, this Article tills the earth to later plant the seeds that can germinate a viable theory of multiracial democracy. Importantly, the Article suggests that even if Section 2 miraculously (or better yet, lawfully) 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 a need for a meaningful political response that both engages and stimulates legal scholarship about the future of multiracial democracy in the United States.

[ . . . ]

The damage is already upon us, to be sure. That remains the case even if the Supreme Court shocks us again, this time by resolving Callais in a way that rightfully results in a second majority Black congressional district in Louisiana and re-affirms Section 2 in accord with Milligan. There is a crisis of democratic governance in the country, and the system continues to suffer immensely due, in large part, to harm that the Supreme Court has inflicted upon it. The impact of the harm has been consistent--and the Court, persistent--such that it has altered the constitutional order at a furious pace, which has accelerated more recently. Significantly, what animates the foregoing analyses--and sense of dread--is, to a great extent, the events that have occurred as a result of a string of decisions from just over a dozen years ago when the Court shattered the first of the VRA’s central pillars in Shelby County v. Holder. This assessment of crisis comports with international rankings, which acknowledge racial discrimination in U.S. elections as contributing to the democratic backsliding that is harming our status as a democracy. “In other words,” as Atiba Ellis writes, “it feels as though we have skipped the reconstruction part and come straight to the redemption part again, in a link of conspiracy between the Supreme Court [’s] ... enablement of rights disabling and democracy dismantling, especially in terms of a race conscious democracy that is expressed from the days of the Fifteenth Amendment to the Voting Rights Act.” Even as that feeling may seem all too ordinary, it should not--certainly not in a multiracial democracy.

So, then, a question is presented to us--the People--even before the Callais ruling (and certainly thereafter): How might we reconstruct a Union that has continued to slide off base? Of course, state legislatures and state judiciaries offer the possibility of a facelift, and ordinary lawmaking power at the federal level offers some prospects for renovation on a larger scale. Constitutional amendment, if it could be achieved, would offer the rare opportunity to reconsider the blueprint for multiracial democracy and to rebuild it from the foundations up. In fact, present conditions suggest that the best answer would emerge upon resort to each of these mechanisms and others, through vital reforms that entrench democracy in constitutional law and politics. Because, as Sabeel Rahman explains, an important part of the “story is that the fight for democracy isn’t just in the courts, and it’s not even just in the legislatures, it’s this interplay between grassroots organizing, movement building, protest in the streets, and policy change.”

Importantly, an appropriate response--to Callais and our current travails--will not just guard against the erasure of racial political power and the homogenization of U.S. lawmaking bodies. Any response that fails to address the Supreme Court and its exuberance as exhibited in these and other cases concerning the law of U.S. democracy--cases whose judgments have debased U.S. democracy--will be inadequate to save U.S. democracy. Such a response would be, at best, a partial solution. Unfortunately, our constitutional system--in both operation and design--relies considerably on an insular cohort of democratically unaccountable judges, at times shown to be insistent on their institutional and constitutional primacy, which has catalyzed an entrenchment feedback loop. At the highest levels, the Supreme Court’s majority will decide cases in ways that facilitate the over-representation of its backers in political office, whose legitimacy is, in turn, ever-more credibly called into question. Those elected politicians then set upon a legislative policy agenda to enact measures that are broadly unpopular with the public, evidencing increasingly diminished responsiveness to a vast array of their constituents, but especially the sizeable population that voted against them. And if the legislative agenda fails (or an opposition’s agenda somehow succeeds), the Court can always decide to intervene to accomplish what legislators themselves could not--even overturning the very legal precedents that were supposed to constrain it. Indeed, such a Court might readily and boldly declare multiracial democracy unconstitutional, though, in reality, it is much more likely to “whisper.” Perhaps this is the lawless nature of what is presently occurring at the Court. Perhaps it is not. But even if its impending decision in Callais is unlikely to offer the type of forthrightness that will allow us to know with any certainty, we will still likely have ample evidence to come to our own “dispositive or near-dispositive” conclusion.

That is to say, in part, that it is very probable that we will see some rays of truth in Callais. However, it is more likely to come through a vociferous dissent, perhaps one read in part from the bench. One might expect this because so often the “truths” that the Supreme Court reveals about the role of race in U.S. democracy come not from the pithy language of its majority that mimics social media posts, but its dissenting opinions. Recently, the Justices who have been in dissent on the weightiest legal questions to come before the Court have been strident in both written and spoken word, and there is no good reason to believe that they will let up in Callais. This leads to yet a final thing that one might anticipate: a fiery dissenting opinion--and, as a matter of strategy, perhaps just the one. It is likely that at least three Justices will unite behind a legal opposition statement, which one of them is likely to read from the bench to communicate “more than ordinary disagreement.” In vocalizing the disaccord, the dissenting Justices will suggest that the Court’s judgment is not just wrong, but “egregiously wrong.” This, too, is an act of constitutional significance. “As dissenters on a conservative Court, liberal Justices will not, by themselves, make law,” of course. “Nor will they, by themselves, make politics.” But they can make a point. If crafted well, the dissenting opinion can advance what Lani Guinier and Gerald Torres called a “demosprudence” that speaks to We the People, even in quite plain terms. Perhaps it would lay out an alternative vision to what the majority offers--and one that furthers the cause of multiracial democracy. Better still, it would stimulate our collective memory, in a heroic effort to coax We the People to envision our own conception of multiracial democracy and stir the type of popular constitutional action that might bring it into being--on the recognition that “[c]onstitutional creativity ... [is] not limited to developments, to use a modem phrase, 'inside the Beltway.”’

At a very minimum, the dissenting opinion would speak to the array of problems that have brought us to this present anti-democratic juncture, even as the majority maintains the liberals are just crying hysterically about the sky falling. In fact, the dissenting faction will really just be pointing out the rainstorm that Justice Ruth Bader Ginsburg forecasted. Relying on facts, and all that has been fairly (and unfairly) presented in Callais and its leadup, the dissent will call out a veritable tempest that is destroying multiracial democracy. And gaslighting us supremely, the conservatives will insist that it is contained in a teapot--that is, if they acknowledge the storm at all.

Wilfred U. Codrington III is Walter Floersheimer Professor of Constitutional Law and Co-Director of the Floersheimer Center for Constitutional Democracy at the Benjamin N. Cardozo School of Law.