On Oct. 14, the Supreme Court heard oral arguments on whether the use of race to gerrymander voting districts, pursuant to the Voting Rights Act of 1965, is constitutional. The cases, which originated in Louisiana, returned to the court after arguments in March and additional briefing over its summer recess. As widely reported, the court appears likely to declare Section 2, which allows such race-based decision-making, a violation of the Constitution’s equal protection guarantee.
Other than Justice Ketanji Brown Jackson’s astonishing assertion, among many others, that black voters are “disabled” in a manner akin to those protected by the Americans with Disabilities Act, much of the media focus was on the political impact of the likely ruling. Democrats who benefited from the racial line-drawing will lose as many as 19 congressional seats across the South following a June 2026 decision.
It is not just Southerners who will be celebrating. So too will rural westerners who were targeted, over the decades, by demands of federal lawyers that they draw race-based county commissioner districts.
KAVANAUGH QUESTIONS WHEN ‘ENDPOINT’ FOR RACE-BASED REDISTRICTING WILL BE
In 1999, the Clinton administration sued tiny, rural, isolated Blaine County, Montana, along the U.S. border with Canada, arguing it violated the VRA by electing its county commissioners at-large from a residential district. Clinton did so despite that: Montana law required that process; no American Indian was denied the right to register, vote, or run for office in Blaine County; all allegations of mistreatment of American Indians by the U.S. Department of Justice were at the hands of the federal government and its evolving policies; the most recently elected commissioner garnered 98% of the American Indian vote, and the elected and serving sheriff was an American Indian. (As to the last point, federal lawyers argued the sheriff had not run as an American Indian, whatever that means.) I agreed to represent Blaine County.
After the election of President George W. Bush, I traveled to Washington, D.C., for what I thought would be a one-on-one meeting with the politically appointed civil rights chief. Instead, he entered the room surrounded by the career lawyers who sued Blaine County for Clinton. No surprise: he rebuffed my request to drop the VRA lawsuit.
Back in Montana, the federal judge recused himself, so a federal judge from Las Vegas came in for the lengthy trial. I thought we had convinced him, but on his return to Nevada, he quickly tired of the detailed and exhaustive record, replicated the Department of Justice’s briefs, and ruled against Blaine County. Subsequently, the U.S. Court of Appeals for the Ninth Circuit did the same. The Supreme Court declined to hear the county’s petition asserting the VRA was unconstitutional.
The year I met with the Civil Rights Division in Washington, Bush sued Alamosa County in south central Colorado under the VRA, arguing that Hispanics there vote as a bloc and had been denied the ability to elect their candidates of choice. Like Montana, Colorado required the election of commissioners at large by residential districts. However, then-Colorado Attorney General Ken Salazar refused to defend the commissioners against the federal lawsuit. Moreover, after I agreed to represent the county, he blasted me.
At trial, the county proved it was not divided along racial lines, as argued by the Department of Justice, but along socio-economic lines. As a result, the Colorado federal district court ruled against the Bush administration and its argument that only a Hispanic Democrat could represent Alamosa County Hispanics. Once again, I traveled to Washington, D.C., to meet the same Bush official leading the Civil Rights Division. I suggested it would be embarrassing for the Bush administration to make that argument at the U.S. Court of Appeals for the Tenth Circuit. For whatever reason, the administration did not appeal, perhaps because the 10th Circuit would not likely overturn the district court’s factual findings.
In 2005, the American Civil Liberties Union sued Fremont County, Wyoming, asserting that American Indians needed a separate, race-based district. The ACLU pressed forward with its lawsuit even after an American Indian woman was elected county commissioner. She won her election, she said, because she was well known throughout Fremont County, because she and her daughter rodeoed and were active in 4H throughout the area, and because she campaigned across the county, not just on the reservation, which is shared by two tribes. The judge, truly troubled by the county’s well-documented opposition to the ACLU’s case, withheld his ruling for three years. Finally, the ACLU filed a writ of mandamus with the 10th Circuit, which issued a mandate that brought a ruling against the county.
Meanwhile, although the Bush administration had not intervened in the ACLU’s VRA lawsuit, Bush lawyers intervened before the Supreme Court to defend the VRA’s constitutionality. The court declined to hear Fremont County’s constitutional challenge to the act.
Over the years, battles such as these did not come without a price. As the decade drew to a close, for example, the Washington Post attacked those demanding laws of Congress comply with the Constitution as “Indian fighters” motivated “by deeply conservative political philosophy” who seek a return to “the way things were in the 1950s.”
Fortunately, under President Donald Trump, the Civil Rights Division as well as the Solicitor General’s Office are led and staffed by attorneys who understand that the Constitution’s equal protection guarantee applies to the U.S. government, Congress, and the laws it passes, including the VRA. The statement in its brief, “The United States also has a substantial interest in ensuring that its citizens are not subject to unconstitutional racial discrimination,” could not be more reassuring. All Americans, including westerners, eagerly await the court’s anticipated ruling ensuring that result next spring.
William Perry Pendley, a Wyoming attorney and Colorado-based public interest lawyer for three decades with victories at the Supreme Court, served in the Reagan administration and led the Bureau of Land Management for President Donald Trump.