Republican justices appear poised to destroy what’s left of the Voting Rights Act

The Supreme Court, with its six-to-three Republican-appointed majority, appears ready to kneecap what remains of the Voting Rights Act’s protections for minority political representation. During Wednesday’s oral argument in Louisiana v. Callais, at least five conservative justices seemed ready to enfeeble the seminal civil rights law such that it will no longer stop white majorities from locking racial minorities out of elected office. After oral arguments, it’s clear that this cornerstone of American multi-racial democracy is in grave peril.

At issue in the case is Section 2 of the law, which requires that racial minorities have an equal opportunity to meaningfully participate in the electoral process. This provision has been used to strike down districting schemes and maps that prevented Black voters and other racial minorities from electing their preferred representatives. Since 1965, Section 2 has given people of color a seat at the table, from school boards to the halls of Congress. It appears this 60-year era is coming to an end. 

“Race is a part of redistricting always,” Justice Sonia Sotomayor said, addressing the solicitor general from Louisiana, who was arguing against an existing map that had enabled the election of two Black members of Congress in his state. “What you’re saying to us [is]…‘You can use [race] to help yourself achieve goals that reduce particular groups’ electoral participation, but you can’t use it to remedy that situation.’”

Several GOP-appointed justices appeared uneasy with striking down Section 2 outright, and instead gravitated toward an approach advocated by the Trump administration which would preserve Section 2 in name only. The administration’s approach would allow states and localities to cut racial minorities out of the halls of power by claiming their maps were simply the consequence of respecting a state’s traditional redistricting principles and the legislature’s prerogative to seek partisan gain. While people of color could still go to federal court to claim they are being targeted by racial gerrymandering, it would be very difficult to prove that their plight was not the incidental result of partisan politics and historic district lines. 

The Supreme Court’s recent precedents virtually ensure that this is a trap few disenfranchised plaintiffs will be able to escape. In 2019, in a decision by Chief Justice John Roberts, the GOP appointees held that federal courts have no role in policing partisan gerrymandering—a decision that greenlit our current moment in which President Donald Trump has demanded that his allies in state capitals redraw their congressional maps to give Republicans more seats. Then last year, in a decision by Justice Samuel Alito, the GOP majority ruled that lower courts should presume good faith on the part of legislatures charged with racial gerrymandering, if they maintain that party, not race, guided their map-drawing. 

Being able to cite partisan motivation to deny minority voters equal opportunity in the electoral process would “swallow Section 2 whole,” Janai Nelson of the NAACP Legal Defense Fund argued Wednesday. “Party cannot trump the responsibility of states to ensure that all voters have an equally open electoral process,” she continued. “The idea that you have to show that party is the reason for the racially polarized voting would eclipse the entire Section 2 analysis, which is focused on ferreting out and ending race discrimination in the political process.”

For several of the justices, however, that may not be a bug, but an alluring feature. Indeed, the Justice Department’s position gives the Republican appointees the opportunity to say they are simply interpreting Section 2 to comply with their own recent precedents on gerrymandering. Such a holding would make it extremely difficult to prove discrimination, without dirtying the GOP justices with the stain of wiping a hallmark civil rights law entirely from the books. 

This case arose out of Louisiana, which drew a congressional map in 2021 with one black majority district out of six, even though Black Louisianans make up nearly a third of the state’s population. Multiple courts found this was a likely violation of Section 2, and so Louisiana redrew its map with a second majority-Black district. A group of non-Black voters then sued, alleging that this new majority-Black district was a racial gerrymander that discriminated against white voters. The question the court ostensibly considered at oral argument Wednesday was whether the creation of this second Black opportunity district violated the Fourteenth Amendment’s equal protection guarantee and the Fifteenth Amendment’s prohibition on racial discrimination in voting.

In their briefs, the lawyers for these non-Black voters, as well the state of Louisiana, pushed for a more aggressive rollback of Section 2. They argued that it should only address intentional discrimination, and not maps or policies with a discriminatory effect. Based on the justices’ reactions at oral argument, they might prevail in that claim.

But it would be awkward for the court to outright ban a Section 2 effects test because it already did so in a 1980 case, Mobile v. Bolden. Two years later, Congress overruled the court’s interpretation and explicitly said that Section 2 can block apparently neutral electoral practices that nonetheless have discriminatory effects. If the court baldly overturns Congress’ sanctioning of such an effects test more than forty years later, it would be hard to make it look like anything besides defiance of the legislative branch.

Instead, at Wednesday’s arguments justices considered other means to diminish or extinguish Section 2, including, as Justice Brett Kavanaugh pressed multiple times, enacting a time limit on its ability to require race-conscious maps to ameliorate racial discrimination. Justice Amy Coney Barrett appeared sympathetic, seemingly adopting the idea put forward by the non-Black voters that Section 2 may have been constitutionally warranted to enforce equality in 1965, but is no longer constitutional given current levels of discrimination. The idea, essentially, is that we have achieved some undefined benchmark of racial harmony that suddenly made Congress’ vision of Section 2 unconstitutional.

There’s an irony to claiming that race-conscious remedies to racial discrimination are no longer warranted at the same time racial animus surges in our politics. In an amicus brief, Black legislators in Louisiana tell the court that “if anything, the racially polarized political environment in Louisiana has become worse, not better in recent years.” You don’t have to take their word for it. Just this week, Politico reported that a group chat of young Republican Party officials and staffers texted each other a constant stream of racial epithets and other derogatory language toward minority groups. Over approximately seven months of chat logs, “epithets like ‘f—-t,’ ‘retarded’ and ‘n–ga’ appeared more than 251 times combined.”

But the reality is that the chat logs aren’t always leaked. It’s hard to prove intentional discrimination because it’s easy to hide, especially with the tools that the Supreme Court has already given to legislators to obscure racial targeting behind partisan maneuvering and the presumption of good faith.

If the court’s conservative wing takes this path, it would ultimately be winding the clock back at least to 1982, if not earlier—a goal the chief justice has worked toward throughout his entire career. Roberts, then a young lawyer in the Reagan Justice Department, led the fight to weaken the Voting Rights Act during the 1982 reauthorization that overruled the court after Mobile v. Bolden. “Violations of Section 2 should not be made too easy to prove, since they provide a basis for the most intrusive interference imaginable by federal courts into state and local processes,” he wrote at the time. Roberts penned upwards of 25 memos opposing Section 2, arguing that it would lead to “a quota system in all areas.”

The future chief justice argued that Section 2 should only be used to strike down instances of intentional discrimination, not laws that have the effect of discriminating against people of color. He lost that fight when Congress overwhelmingly reauthorized the law and reinstated the effects test—but now opponents of the VRA have resurrected Roberts’ arguments forty years later in the Louisiana case.

Roberts has already succeeded in gutting the VRA on other fronts, most notably writing the majority opinion in the 2013 case Shelby County v. Holder, which held that states with long histories of discrimination no longer needed to approve their voting changes with the federal government. That eliminated the most effective part of the law.

At the time Roberts wrote that the Shelby County ruling “in no way affects the permanent, nationwide ban on racial discrimination in voting found in Section 2,” but to no one’s surprise, opponents of the VRA are now on the verge of gutting the remaining provision of the county’s most important civil rights law.

A decision overturning or crippling Section 2 would turbocharge the GOP’s current gerrymandering efforts. The loss of Section 2 would be devastating for communities of color and the Democratic candidates they tend to support, costing Democrats up to 19 House seats. As much as 30 percent of the Congressional Black Caucus could lose their seats, according to a report by Fair Fight Action and the Black Voters Matter Fund.

Even by conservative estimates, Republicans could easily eliminate a half-dozen Democratic seats, leaving no Democratic representatives or majority-minority districts in Tennessee and Deep South states including Alabama, Mississippi, South Carolina, and Louisiana, where voting discrimination has historically been most prevalent.  

Edward Greim, the conservative lawyer who represented the group of non-African-American voters that challenged the Louisiana map, asked the court to rule quickly so that Louisiana could draw a new map that would eliminate the seats of one or more Democratic representatives. The Supreme Court has already fast-tracked the case, which means that a ruling eviscerating Section 2 could come well in advance of the 2026 midterms, giving GOP-controlled states ample time to surgically eliminate Democrats seats and representation for communities of color.

Beyond the midterms, weakening Section 2—however the justices choose to go about it—would almost certainly reconstitute state legislatures, city councils, judicial districts, and every other type of political boundary in which racial minorities could be excised from government.

“The result,” as the Legal Defense Fund’s Nelson said at oral arguments, “would be pretty catastrophic.”