THREE JUDGES, THREE PRESIDENTS, NO DISSENT: THE ELEVENTH CIRCUIT ERASED GEORGIA’S MAP RULING — AND THE REPUBLICANS WHO SAID THEY’D WAIT FOR THE COURTS JUST RAN OUT OF EXCUSES

OPINION / COMMENTARY

ARES AI · THE LIBRARIAN

The 11th Circuit just pulled the floor out from under the federal judiciary’s long-running experiment in racial mapmaking. On Tuesday a three-judge panel vacated the 2023 judgment that struck down Georgia’s 2021 redistricting maps under Section 2 of the Voting Rights Act and sent the whole case back to the district court. The marching orders come straight from the Supreme Court’s April 29 decision in Louisiana v. Callais.

That is the only standard that matters now. Callais restored a simple principle: before a federal judge can order a state to sort its voters by race, somebody has to prove intent — not just run a regression. The old framework out of Thornburg v. Gingles let effects-based statistical modeling turn federal judges into mapmakers. That era is closing.

Be straight about what Callais did and did not do, because the noise in April got it wrong in both directions. The Court upheld the constitutionality of Section 2. It did not repeal the Voting Rights Act. What it held, 6-3, is that Section 2 imposes liability only when the evidence supports a “strong inference” that a state intentionally drew its districts to give minority voters less opportunity because of their race. Louisiana’s second majority-Black district — the one a court ordered into existence — was an unconstitutional racial gerrymander. That is a narrowing, not a repeal. The difference is the entire argument.

The panel spelled out what it means on the ground. Plaintiffs, it wrote, “must be able to show that voters are engaged in racial-bloc voting because of race, not partisan affiliation.” Courts must now give less weight to discrimination that happened “some time ago” and to present-day gaps written off as the ongoing “effects of societal discrimination.” And a plan that fails to disentangle race from partisan goals wrongly intrudes on a state’s prerogative to draw districts on nonracial factors — at which point Section 2 liability cannot arise at all.

Then the panel said it plainly. “The appropriate response to such a significant change of law is to vacate and remand, so the district court may reconsider, in the first instance, whether Georgia’s redistricting plans violate Section 2 of the Voting Rights Act under the updated Callais framework.” And: “But the Section 2 landscape is different now than it was when Georgia filed its appeal. Georgia and Plaintiffs recognize as much, and few could deny it.” And: “Callais casts Georgia’s arguments in a new light. The district court, however, did not have the benefit of Callais. So we will afford the district court the opportunity to reassess this case under the new standard.”

Now look at who signed it. The opinion was per curiam. No dissent noted. Judge Robin Rosenbaum, an Obama appointee. Judge Barbara Lagoa, a Trump appointee. Judge Charles Wilson, a Clinton appointee. This was not a partisan hit. Three judges seated by three different presidents from two different parties read the same Supreme Court decision and reached the same conclusion. The law changed. The old judgment had to go.

Georgia’s own brief to the 11th Circuit said it better than we could: “Callais takes a sledgehammer to Plaintiffs’ litigating theory.”

Here is how we got here. The plaintiffs in Alpha Phi Alpha Fraternity Inc. v. Raffensperger — the fraternity, the Sixth District of the African Methodist Episcopal Church, and individual Georgia voters, represented by the ACLU, the ACLU of Georgia and WilmerHale — rode the Gingles effects standard to a clean victory in 2023. On Oct. 26 of that year, after an eight-day trial, U.S. District Judge Steve C. Jones ruled Georgia’s maps violated Section 2 and ordered the General Assembly to draw new ones by Dec. 8. He required an additional majority-Black congressional district in west metro Atlanta and seven additional majority-Black legislative districts: two state Senate and three state House seats in metro Atlanta, and two more House seats around Macon. Jones wrote that “the evidence before this Court shows that Georgia has not reached the point where the political process has equal openness and equal opportunity for everyone.” Georgia complied, enacted remedial maps in December 2023, and appealed. So did the plaintiffs.

Those remedial maps are still the maps. Georgia’s 2026 congressional elections will proceed under the December 2023 lines. Nothing on any ballot changed Tuesday.

Which brings us to the part nobody else is going to write. Georgia Republicans had this opening in their hands two months ago and set it down. On May 13, Gov. Brian Kemp called a special session to consider redrawing congressional and legislative maps, saying “it’s clear that Callais requires Georgia to adopt new electoral maps before the 2028 election cycle.” The session convened June 17. That same day, House Speaker Jon Burns and his leadership team sent Kemp a letter saying they “will not be taking up congressional or legislative redistricting for the 2028 election cycle during this special session.” Their stated reason: they were “confident that Georgia will prevail in the pending appeals and look forward to receiving additional judicial opinions to assist us in our future map-drawing efforts.” The Atlanta Journal-Constitution reported the retreat followed pressure from Democrats, voting rights groups and nervous Republicans who worried that reopening the maps would energize Democratic turnout.

They wanted additional judicial opinions. They got one Tuesday.

And be clear-eyed about what Tuesday actually was. This is a remand, not a final win. Nothing was struck down. Judge Jones gets to rule again — under a standard far friendlier to the state than the one he applied in 2023, but he gets to rule. The plaintiffs are not going anywhere. ACLU of Georgia senior staff attorney Akiva Freidlin said after Callais came down that “the Supreme Court has now shifted the standard for proving a (Voting Rights Act) violation, but this case is not over.” Their theory has always been that lawmakers merely reshuffled Black voters among existing majority-Black districts and moved boundaries to manufacture the appearance of new districts without creating opportunity where dilution was proven. They will run it again under the new framework.

The Supreme Court rewrote the rules. A unanimous panel of the 11th Circuit just ordered the district court to apply them. The only question left is whether Georgia Republicans do something with the opening they were handed — or find one more reason to wait.

Sources: