In late April, the Supreme Court of the United States (SCOTUS) decided Louisiana v. Callais, a case related to Section 2 of the federal Voting Rights Act of 1965 (VRA), which allows minority voters to challenge state voting practices that make it more challenging for minority groups to participate in the electoral process. The decision makes it more difficult to provide a legal basis for using electoral districts where racial or ethnic minorities make up more than half of the population (majority-minority electoral districts) and has resulted in widespread changes to electoral maps across the country.

While the impacts of the decision have already begun to play out, it is reasonable to anticipate other far-reaching effects even in states such as California that have their own unique voting right laws and electoral practices. School board elections are not immune from these impacts, and time will tell what will be required of school districts and county offices of education when preparing for and overseeing elections moving forward.

In Callais, Black voters challenged Louisiana’s congressional map after it was redrawn following the 2020 census, arguing that their votes were diluted in violation of Section 2. The courts agreed and ordered the state to create a new map that included two majority-minority districts. This new map was subsequently challenged under the Equal Protection Clause of the 14th Amendment. Ultimately, SCOTUS determined that the new map was an illegal racial gerrymander, holding that “because the Voting Rights Act did not require Louisiana to create an additional majority-minority district, no compelling interest justified the State’s use of race in creating [the new map.] The map is an unconstitutional gerrymander, and its use would violate plaintiffs’ constitutional rights.”

This holding drastically changed the test used in a VRA Section 2 analysis, creating confusion around the Equal Protection Clause principles typically relied on to challenge electoral systems. Specifically, SCOTUS determined that when bringing a Section 2 claim, voters must show that a state redistricted based on race, not party, and that the racially polarized voting cannot be explained by party affiliation. This requirement is difficult, if not impossible, to satisfy in many situations due to the high correlation between race and party affiliation in many parts of the country.

In California, this decision could affect the state-based voting rights act known as the California Voting Rights Act (CVRA). Relying on similar principles as the VRA, the California Legislature passed the CVRA and it became law in 2001. The CVRA emphasizes providing minority voters with an easier legal pathway to combat vote dilution in at-large elections than is offered by the VRA. At-large elections are those in which all voters cast votes to select all their representatives as opposed to district-based elections where voters in a specific geographic area vote for one representative in that area. Although it is not identical to the VRA, the CVRA mirrors the federal law in many ways including some of the required showings to bring a successful claim. Specifically, when bringing a CVRA claim of vote dilution, voters must show that at-large elections are used, racially polarized voting existed and that vote dilution is taking place. Racially polarized voting occurs when voters of different races tend to vote for different candidates, and vote dilution occurs when voting practices, such as at-large voting, diminish the voting strength of a particular group.

These requirements are similar to those in a VRA Section 2 claim and while the Callais decision did not invalidate the VRA, it did substantially complicate the analysis needed to bring a successful claim, making it much more difficult to defend the creation of a majority-minority district in an electoral process. It is possible that an individual or group may challenge the CVRA, arguing that the same test described in Callais should apply to challenges to electoral maps brought under California law. If and how this argument would play out remains to be seen, but the possibility complicates matters for public entities. Callais also opens the door for a challenge seeking to invalidate the CVRA in its entirety and has a unique effect on school districts, cities and other public entities that have changed their election process to district-based election in order to comply with the CVRA. It seems now that any race-based election practice, process or decision may be vulnerable to legal challenge.

Adding to the uncertainty of best practices for election methods moving forward is Senate Bill 1164 (Cervantes, D-Riverside), a proposed law in California that seeks to repeal the current CVRA and replace it with a modified version. In anticipation of and response to Callais and its impacts, California legislators are advancing SB 1164, which appears to expand protections for minority voters and insulate the law from the impact of Callais as much as possible by removing references to the VRA. It also expands protections and potential liability compared to the current CVRA and includes more specificity regarding prohibited actions as well as how a potential violation must be analyzed by offering factors to consider when making a determination.

CSBA will continue to monitor the impact of the Callais decision on LEAs and the progress of SB 1164 moving forward.

Please note that the information provided here by CSBA is for informational purposes and is not legal advice.