In early May, the Supreme Court of Virginia struck down the congressional redistricting plan that voters had narrowly approved the month prior, leaving the state’s 2022 map in place for the November 2026 midterm elections. The majority held that the General Assembly failed to comply with Article XII of the Virginia Constitution, which requires the legislature to approve a proposed amendment in two separate sessions with an intervening House of Delegates election, because the initial approval came in October 2025 after early voting in the legislative election had already begun. The court reasoned that a procedural defect “irreparably undermined” the referendum, nullifying voters’ approval. The ruling issued weeks after the Supreme Court’s decision in Louisiana v. Callais, narrowing Section 2 of the Voting Rights Act (VRA), is just the latest in a wave of gerrymandered redistricting across multiple states.
State legislatures spanning the political spectrum are quickly redrawing congressional maps mid-decade, a move the United States has not seen since the original Voting Rights Act of 1965 (VRA). Texas, California, Virginia, and Florida have each adopted or proposed new maps outside the traditional ten-year cycle, and observers describe the dynamic as a redistricting “arms race” between the major political parties.
Background
The Supreme Court sidestepped the question of whether partisan gerrymandering is unconstitutional in Rucho v. Common Cause, ruling that such claims are nonjusticiable because addressing the practice is reserved to Congress. Racial gerrymandering claims, however, are justiciable as recognized in Shaw v. Reno, which held that the predominance of race in redistricting triggers strict scrutiny. Section 2 of the VRA provides that plaintiffs can bring claims for voter discrimination by proving a map that results in diluting minority voting power using a test created in Thornburg v. Gingles (aptly called the “Gingles test”).
How SCOTUS Ruled in Callais
Callais did not declare Section 2 facially unconstitutional, but it reinterpreted the statute so that liability attaches only when “the evidence supports a strong inference that the State intentionally drew its districts to afford minority voters less opportunity because of their race.” The Court also modified the Gingles test: plaintiffs can no longer rely on illustrative maps showing majority-minority districts to prove a Section 2 violation, must isolate partisanship when making their case using racial-bloc voting, and must give less weight to evidence of historical intentional racial discrimination because it is too remote. The Supreme Court struck down Louisiana’s redistricting map, which created a second majority-Black district, as an unconstitutional racial gerrymander under the Fourteenth and Fifteenth Amendments. The practical effect is that the results-based test that Congress explicitly provided for in Section 2 is substantially weakened.
The Section 1983 Vehicle – Is It Sufficient?
42 U.S.C. § 1983 supplies a cause of action to enforce voting rights to combat impermissible gerrymandering. The statute provides a private right of action to any person who is deprived of the “rights, privileges, or immunities secured by the Constitution and laws” for suing state officials acting under color of law. Voters subjected to impermissible racial gerrymandering can use Section 1983 to vindicate their Fourteenth and Fifteenth Amendment equal protection rights, as articulated in Shaw and irrespective of Callais’ narrowing of Section 2 of the VRA.
In Cooper v. Harris, the Court rejected the argument that a state can immunize a racially drawn map by claiming a goal of securing partisan advantage. The Court held that “the sorting of voters on the grounds of their race remains suspect even if race is meant to function as a proxy for other (including political) characteristics,” and that the use of race to entrench partisan advantage is nonetheless unconstitutional.
A plaintiff can show that race predominated a legislative redistricting effort and that the State cannot satisfy strict scrutiny. If a plaintiff can show that map drawers used racial data, point to references to race in the legislative record, or use other traditional criteria to show that the characteristics of a redrawn district that cracked and packed a Black or Latino community could only be attributed to race (as conveyed in Miller v. Johnson), then there is still a chance of racially gerrymandered maps being found violative of the Fourteenth and Fifteenth Amendments. This is consistent with what SCOTUS held in Shaw, Miller, and Cooper. But this is a high bar for plaintiffs who could previously rely on Section 2. Unlike a Section 1983 plaintiff, who must show an intentional constitutional violation, a Section 2 VRA plaintiff historically only needed to prove a discriminatory result. Now after Callais, that distinction has narrowed considerably; Section 2 plaintiffs must now present strong evidence of intentional racial discrimination using the Section 1983 procedural vehicle.
What to Watch For
Predictably, states have interpreted Callais as compelling aggressive mid-decade redistricting to correct decades of legislative maps drawn in compliance with Section 2 of the VRA. But Section 1983 remains a tool against voter discrimination. In Callais, the Supreme Court held that its precedent in Rucho incentivizes voters to bring racial gerrymandering claims that are, in fact, just permissible partisan gerrymandering. It could be argued that it is more concerning to see state legislatures asserting partisan objectives for their redistricting—while concealing a more inconspicuous goal: maintaining their power by diluting the votes of marginalized groups. As the Supreme Court acknowledged, the country’s polarization is such that racial and partisan characteristics are closely intertwined.
The issue of gerrymandering goes even beyond its impact on historically marginalized communities. Many election experts and voting rights advocates believe it suffocates voters’ ability to effect the change they need and to improve their communities. With the swift redistricting efforts across the country, courts should expect an influx of voter discrimination claims and should be open to reconsidering whether “excessive partisanship in districting leads to results that reasonably seem unjust . . . [and is] incompatible with democratic principles”, as the Supreme Court once said in Rucho.
Sources:
42 U.S.C. § 1983.
Cooper v. Harris, 581 U.S. 285 (2017).
David A. Lieb, Redistricting is rampant ahead of the US House midterm elections. What states are taking action?, AP (May 6, 2026), https://www.ap.org/news-highlights/elections/2026/redistricting-is-rampant-ahead-of-the-us-house-midterm-elections-what-states-are-taking-action/.
Eleanor Klibanoff, U.S. Supreme Court upholds Texas’ newly redrawn congressional map, Texas Tribune (Apr. 27, 2026), https://www.texastribune.org/2026/04/27/texas-redistricting-map-ruling-us-supreme-court-upheld-2026-midterms/.
Explainer: What’s happening with gerrymandering in the United States—and who will “win” the redistricting battle?, Harvard Kennedy School (May 4, 2026), https://www.hks.harvard.edu/faculty-research/policy-topics/democracy-governance/explainer-whats-happening-gerrymandering-united.
Gary Fineout, DeSantis signs Florida’s new GOP-friendly congressional map into law – and is swiftly sued, Politico (May 4, 2026), https://www.politico.com/news/2026/05/04/florida-desantis-map-sign-redistricting-00905256.
Hansi Lo Wang and Nina Totenberg, The Supreme Court lets California use its new, Democratic-friendly congressional map, NPR (Feb. 4, 2026), https://www.npr.org/2026/02/04/nx-s1-5691890/supreme-court-california-redistricting-map.
Louisiana v. Callais, 146 S. Ct. 1131 (2026).
Louisiana v. Callais: Protecting Fair Representation for Black voters in Louisiana and safeguarding the Voting Rights Act, Legal Defense Fund, https://www.naacpldf.org/case-issue/louisiana-v-callais/ (last visited on May 21, 2026).
Michael Li, Section 2 of the Voting Rights Act at the Supreme Court, Brennan Center (Apr. 29, 2026), https://www.brennancenter.org/our-work/research-reports/section-2-voting-rights-act-supreme-court.
Miller v. Johnson, 515 U.S. 900, 916 (1995).
Rucho v. Common Cause, 588 U.S. 684 (2019).
Scott v. McDougle, No. 260127, 2026 LX 261905 (May 8, 2026).
Shaw v. Reno, 509 U.S. 630 (1993).
Thornburg v. Gingles, 478 U.S. 30 (1986).