My father came to this country fleeing a dictatorship. He had lived where the government decided who counted and who didn’t; where the ballot was a performance of consent rather than an exercise of power. When he became a United States citizen, the first thing he did was to take me with him to the polls. I understood what he told me when we walked out: that voting was the thing a tyrant had taken away from him and that this country had given it back. This sentiment was what got me to law school.
On April 29, 2026, the Supreme Court taught me something new about the gap between voting rights and power. Phyllis V. Mercadel, a voter in Louisiana, had cast her absentee ballot for the congressional primary in a majority-Black district. That district is a result of federal courts ordering Louisiana to adjust the previous map that had unlawfully diluted Black voting power.
Mercadel had exercised her right that the 15th Amendment and the Voting Rights Act promised to protect. However, Louisiana v. Callais, the case that challenged the state on redistricting, eliminated the majority-minority district. A few days later, Louisiana Governor Jeff Landry declared an “election emergency” and suspended the primary. As a result, Mercadel’s ballot — legally cast, constitutionally protected — was rendered void. Not because she had done anything wrong, but because the court had decided that the district she voted in should not exist.
This is the operating proof of a doctrine that does not merely echo the Three-Fifths Clause of the original Constitution. It perfects it.
To understand why, you need precise constitutional arithmetic. The Three-Fifths Clause of Article I, Section 2, counted enslaved people at 60 percent of their number for congressional apportionment. Slaveholding states received bonus House seats and Electoral College votes proportional to the bodies of the people they owned. The enslaved were not the beneficiaries; their bodies generated political power for the people who controlled them.
Callais achieves the same result through inverse arithmetic. Black Americans are counted at full value — 100 percent — for apportionment. Louisiana, whose population is 33 percent Black, receives its full congressional delegation and Electoral College based on that count.However, the AI-generated maps that Callais now shields from judicial review will be drawn to eliminate the state’s only majority-Black congressional district. The full census count of Black Louisiana citizens will continue to inflate the state’s congressional representation. The representatives those seats produce will be chosen through maps designed to make Black Louisiana’s votes inconsequential. The bodies count as five-fifths. The votes count as something closer to zero. Callais is not naïve about artificial intelligence (AI); it is architecturally calibrated to AI.
The mechanism is not new. It is the poll tax, recoded. Poll taxes applied equally to all voters, but their racial effect was a mathematical consequence of the racial wealth gap. A legislature today instructs redistricting software to maximize partisan advantage while satisfying legal requirements: equal population, contiguity, compactness. No racial criterion appears in the algorithm’s code, but because race and party are tightly correlated in the contemporary American South, the map that maximizes Republican performance produces racially diluted districts for Black voters as a mathematical result of the partisan optimization. The algorithm formed no intent at all. Under Callais, no viable legal challenge exists.
It took a constitutional amendment, the Twenty-Fourth, to kill the poll tax because the amendment requires no proof of intent; it operated on the effect of the tax. There is no Twenty-Fourth Amendment for algorithmic redistricting. There is now only Callais.
In the days since the only Callais decision, Florida passed a new congressional map eliminating majority-Black representation. Tennessee carved up Memphis to destroy its only majority-Black congressional district. Alabama moved to reinstate maps previously struck down for racial gerrymandering. At least 12, or more, congressional seats are projected to shift as a direct consequence — seats generated by the full census count of the Black populations whose effective representation is being erased.
Software will be used to draw the new maps. No racial criterion will appear in the algorithm’s parameters. The 1890 Constitution was the product of explicit intent, but the 2026 redistricting is the product of an optimization function, specifically designed to be beyond the reach of any court willing to look at its effects. This is not an improvement on the 1890 Constitution. It is an escalation of it.
The Three-Fifths Clause said the quiet part loud. Callais says the loud part quietly. It counts the same bodies. It silences the same voices. In 2026, with Louisiana leading the way, the software will run, the maps will be drawn, and the law will call it neutral.
Barbara Bernier is a constitutional law professor who is currently researching the impact of artificial intelligence on constitutional rights.
