The Plot to Destroy the Voting Rights Act

The best way to think about this week’s momentous Supreme Court decision dismantling the Voting Rights Act is to consider it alongside four previous voting rights cases from the past 13 years. Each time, the Court’s majority claimed it was taking incremental or technical steps. The collective project, however, shows the evisceration of the VRA, the crown jewel of the civil rights era. American democracy will be much weaker as a result.

In Louisiana v. Callais, just issued, the Court considered whether Louisiana was justified in drawing a second congressional district where a majority of voters are racial minorities. Louisiana has six congressional districts, and one third of its population identifies as Black. Under a reasonable interpretation of Section 2 of the Voting Rights Act, which forbids voting practices that result in racial discrimination, the state would pass a map with two majority-minority districts. The state drew only one, so minority plaintiffs sued. Lower courts found that the VRA required Louisiana to draw a second majority-majority district. But once it did so, white plaintiffs sued, saying that drawing a second district with racial goals in mind violated the Constitution’s Equal Protection Clause.

There was an easy way out of this issue: Congress indicated, through the VRA, that it values a multiracial democracy, which is why states cannot enact rules that have the effect of making it harder for racial minorities to elect their candidates of choice. Therefore, under the promise of the Fourteenth and Fifteenth Amendments, the Constitution allows the VRA to require states to ensure adequate minority representation. That’s been the law since Congress amended the Act in 1982 and President Ronald Reagan signed it. The Supreme Court repeatedly reaffirmed this formulation, as recently as three years ago in a case out of Alabama.

So, what’s changed? It turns out that the Alabama case was an aberration. The majority’s real project over the past decade and a half is more sprawling.

First came Shelby County v. Holder in 2013, when the Court neutered Section 5 of the VRA, which had existed to stop recalcitrant states, mostly in the South, from passing new laws that harm minority voters. The 5–4 majority claimed it was not invalidating the law in its entirety, but the impact was clear: states could pass new, discriminatory voting rules without federal preclearance. The Court said that “things have changed dramatically” in the South, yet the VRA’s success was also the cause of its demise. In the Shelby County opinion, Chief Justice John Roberts claimed that the decision “in no way affects the permanent, nationwide ban on racial discrimination in voting found in §2.” While technically true (until the Louisiana v. Callais case), the sentiment was clear: no aspect of the VRA was safe. As Justice Ruth Bader Ginsburg memorably wrote in dissent, “Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.”

Next came Rucho v. Common Cause in 2019, in which the Court constitutionalized the practice of partisan gerrymandering. The Court said that federal courts are closed to claims of partisan gerrymandering, even when the evidence is abundantly clear that legislators sought to rig elections to favor their side. Yet Chief Justice Roberts said once again not to worry. “Our conclusion does not condone excessive partisan gerrymandering,” he wrote. The acceptance—and even encouragement—of partisan gerrymandering would come in future VRA cases.

In 2021, in Brnovich v. DNC, the Court considered the application of Section 2 of the VRA to claims of vote denial, once again cabining the Act’s reach. Justice Samuel Alito, writing for the majority, crafted a new test from outside of the Act’s text to create five “guideposts” that plaintiffs must satisfy to bring a successful claim. Each one is difficult for plaintiffs to meet. The effect: plaintiffs are essentially cut off from challenging voting rules that make it harder for racial minorities to cast a ballot. As Professor Rick Hasen found (which Justice Elena Kagan cited in her dissent in the Louisiana case), “Since the Court ruled [in Brnovich], not a single Section 2 suit has successfully challenged such a restriction on voting, however discriminatory in operation.” The Court did not need to formally strike down Section 2 to render it a dead letter for vote denial claims.

Then came Alexander v. South Carolina State Conference of the NAACP in 2023. That case involved a claim of racial gerrymandering under the U.S. Constitution, alleging that the legislature weighed race too heavily when crafting the districts. This same issue prompted white plaintiffs to sue Louisiana after it drew a second majority-minority district. In Alexander, the Court once again created a test that makes it harder for minority plaintiffs to win. The Court ruled that if race and party are correlated—a fact in many states, especially in the South—then a plaintiff must “disentangle” the two to make its case. “If either politics or race could explain a district’s contours, the plaintiff has not cleared its bar.” Put another way, if a state draws a racial gerrymander that is also a partisan gerrymander, the state necessarily wins. Partisan gerrymandering, far from being “not condoned” as the Court claimed in Rucho, became an express defense that could insulate a state from a racial gerrymandering lawsuit.

The Louisiana v. Callais case issued this week puts that notion on overdrive. Justice Alito, writing yet another case gutting the VRA without explicitly overturning it, said that plaintiffs have a further burden to bring a Section 2 challenge to a redistricting map: It must produce an alternative map that still achieves the state’s political goals. As I had predicted based on the oral argument in this case, instead of “not condoning” partisan gerrymandering, Justice Alito essentially welcomes the practice: “A plaintiff may carry its disentanglement burden by offering an alternative map that achieves all the State’s objectives—including partisan advantage and any of the State’s other political goals—at least as well as the State’s map.” Partisan gerrymandering—or any other political goal such as protecting incumbents—has become an absolute defense to any claim under Section 2 of the Voting Rights Act. It is now, the Court wrote, “a constitutionally permissible criterion that States may rely on as desired.”

This interpretation turns democracy on its head. It is also plainly outside of the text of the VRA, which should bother Justice Alito, a professed originalist and textualist. Section 2 of the VRA imposes liability when a state enacts a voting rule that “results in a denial or abridgment of the right of any citizen of the United States to vote on account of race or color,” thanks to the Reagan-signed 1982 amendment. The key criterion is results. Yet Justice Alito crafted a new rule for the VRA that focuses only on discriminatory intent. “In short,” he wrote, “§2 imposes liability only when the evidence supports a strong inference that the State intentionally drew its districts to afford minority voters less opportunity because of their race.” That statement is wrong as a matter of statutory text. The VRA prohibits discriminatory results, not merely intent. Yet Justice Alito barely even used the word “results” in his opinion when describing the appropriate test. Further, he offered little response to Justice Kagan’s dissent, which pulled no punches. The majority’s opinion, she wrote, “avails itself again of the tools used before to dismantle the Act: untenable readings of statutory text, made-up and impossible-to-meet evidentiary requirements, disregard for precedent, and disdain for congressional judgment.”

Ultimately, the majority pretends that race no longer matters in American politics and offers extreme deference to state legislatures, whom we should trust less, not more, to craft fair rules for all voters. The combination makes it virtually impossible for litigants to turn to the federal courts when states enact laws that exclude some people from the democratic process.

The impacts may be immense. Just a few hours after the Court issued its decision, Alabama politicians indicated they may redraw the state’s congressional map. Louisiana must redo its map to comply with the Court’s order. Other states may follow. The biggest effect could be on state and local governments, as litigants have used the VRA to ensure fair representation on these bodies.

The Court’s majority may believe we live in a post-racial society. But ignoring race’s impact on our democracy—from the Founding to today—will not make it go away.

The Louisiana v. Callais decision is therefore not a one-off. It’s not an incremental or technical decision. It’s a culmination of a project that reformulates the constitutional order regarding voting rights. American democracy will be less representative as a result.

If there is a silver lining to the decision, it is this: voters still have the final say, even if the Court’s rulings have made it so much harder to achieve fair representation. Hopefully, the Court’s ruling in Louisiana v. Callais will spur a renewed civil rights movement among the American people. That starts at the ballot box. Absolutely massive turnout can send a clear signal about the value of democracy.

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