Wilfred U. Codrington III (Yeshiva University — Benjamin N. Cardozo School of Law; Brennan Center for Justice at NYU School of Law) has posted Is Multiracial Democracy Constitutional? Reflections from the Eye of the Storm, forthcoming in 110 Minnesota Law Review (2026), on SSRN. Here is the abstract:
By summer 2026, the U.S. Supreme Court will have finally decided Louisiana v. Callais, which asks whether the state’s intentional creation of a second majority-minority congressional district as a remedy for racial vote dilution violates the Fourteenth or Fifteenth Amendment. In plainer language, the impending judgment in the twice argued case will determine the constitutionality of Section 2 of the Voting Rights Act, and with it, the future of legal doctrine governing the use of race in redistricting. Yet that is not the only issue that the case presents nor, crucially, the most important. This Article contends that in its looming Callais decision, the Court will issue its judgment on a far more existential question: Is multiracial democracy constitutional? Unfortunately, the Court seems poised to answer no. But the decision in Callais will be quite telling in either case. It will provide valuable insights that help us to examine the democratic legitimacy—or here, deficits therein—of institutions that are key to our multiracial constitutional order, including but not limited to the Supreme Court itself.
The Article proceeds in three parts. Part I offers a historical overview of the constitutional law and politics of race in redistricting, tracking the constitutional development of the racial-political thicket from the mid-twentieth century until today. Part II takes seriously the possibility—even probability—that the Supreme Court will upend the constitutional status quo, arguing that there are two broad paths the Court could take in Callais to get there. The Article concludes with reflections that highlight the importance of dissent and the necessity of multiracial democracy reform no matter how Callais is decided.
Recommended.