How the Supreme Court Demolished the Voting Rights Act

Over the past forty years, courts have had to recognize that Congress, in Section 2, intended to address the effects of racial discrimination on voting, regardless of discriminatory intent. But, as the Supreme Court has become increasingly clear in its view that not being colorblind amounts to racial discrimination, a vicious cycle has developed in which states’ attempts to avoid violating the VRA on one side could risk a constitutional violation on the other side, with each action resulting in a possible finding of racial discrimination. In 2022, a federal district court found that Louisiana likely violated Section 2 of the VRA by creating a single majority-black voting district on its map drawn after the 2020 census. But when the state then attempted to comply by creating a second majority-black district, a group of non-black voters challenged the new map as an allegedly unconstitutional racial gerrymander. A three-judge federal district court found that the map was a racial gerrymander that violated the Equal Protection Clause of the Fourteenth Amendment. (Federal law provided for a direct appeal to the Supreme Court.)

This week, the Supreme Court upheld that decision, finding that Louisiana’s map with the majority-black Second District violated the Constitution. The Court characterized the District’s alignment as “racial discrimination” in which the State had no “compelling interest” — because the VRA, when “properly construed,” the Court concluded, did not require it to exist. (The Court did not declare that the majority-black First District was unconstitutional, but it left little reason to suppose that it could not be successfully challenged either.) The Court arrived at this decision by reducing the meaning of Section 2 to what it was before Congress changed the law in 1982. The Court’s new interpretation is that the only way for a state to violate Section 2 is to intentionally discriminate, although Congress has made clear by the statutory amendment that the concern in Article 2 was discriminatory. effect, not intention. Justice Alito justified this reading by asserting that, since the Fifteenth Amendment itself can only be violated by intentional discrimination, Congress would have exceeded the authority of its Fifteenth Amendment if it had legislated to prohibit “mere disparate impacts.”

This significantly narrowed interpretation of the VRA, combined with the Court’s long-standing view that majority-minority districts are forms of “racial discrimination” that the Constitution “almost never permits,” has momentous practical consequences for the electoral system. After Callais, every majority-minority district in existence risks being deemed an unconstitutional act of racial discrimination. We can immediately expect a cascade of lawsuits challenging state district maps, and some states could get rid of majority-minority districts without waiting to be sued. Although Alito did not state that majority-minority districts could never be required, the upshot of his opinion is that it will be impossible, except in the rarest circumstances, for a plaintiff to demonstrate that a state’s refusal to create — or its elimination of — a majority-minority district intentionally discriminated on the basis of race.

Justice Alito didn’t stop there. He then wrote what amounts to an instruction manual for Republican-led state legislatures on how best to justify districting practices that have a clearly discriminatory effect on black voters. His unequivocal advice was to use the fact that black voters tend to vote Democratic to argue for drawing a map that seriously weakens black voting power, by presenting redistricting as having a partisan rather than a racial purpose. Alito pointed out that because of the Rucho v. Common Cause of 2019, which established that federal courts will not entertain constitutional challenges to partisan gerrymandering, states are free to draw districts to “achieve partisan advantage,” even to an extreme degree — for example, to ensure that every congressional district in a state is a lock for a Republican victory. Concern about the rights of black voters barely surfaced in Alito’s opinion. He zealously guarded states’ prerogative over gerrymandering, however, warning that “litigants cannot circumvent” Rucho by “dressing up their political gerrymandering demands in racial garb.” Alito’s message to the states is: go ahead and gerrymander your congressional districts in a way that effectively eliminates the voting power of racial minorities. The Court supports you.

In a piercing and spirited dissenting opinion, Justice Elena Kagan, joined by Justices Sonia Sotomayor and Ketanji Brown Jackson, considered the Court’s decision “straight-forward” holding that “the Voting Rights Act must be rolled back to make the world safer for partisan gerrymanders.” What will result, she predicts, is a worsening of the way “the two major parties in this country compete in a race to the bottom.” His dissent was not just about partisanship; Kagan warned that the Callais decision threatens the fundamental principles of the functioning of our constitutional democracy. It’s Congress’s job to legislate, and it did so through the Voting Rights Act. The Court’s job is to interpret the law, not to rewrite a law that the justices don’t like. As Kagan recounted, the Court’s conservative majority “has had its sights set on the Voting Rights Act” since 2013, when it gutted Section 5 of the law, which required jurisdictions with a history of voting discrimination to seek prior approval from the federal government for any new voting rules. And in 2021, the Court required Section 2 plaintiffs challenging voting-related charges to focus on discriminatory intent rather than discriminatory effect, so no Section 2 challenge has been successful since then. In the Court’s inexorable march “to destroy” the VRA, Callais, Kagan wrote, was the final piece in the “now completed demolition of the Voting Rights Act.” The statute, she continued, “was born from the blood of Union soldiers and civil rights demonstrators. It marked the beginning of an awe-inspiring change, bringing this nation closer to realizing the ideals of democracy and racial equality. And it has been reauthorized repeatedly and overwhelmingly by the people’s representatives in Congress. They alone have the right to say that it is no longer necessary – not the members of this Court.”