‘The stakes are quite large’: US supreme court case could gut Voting Rights Act
The US supreme court is set to hear a case this month that could gut what remains of the Voting Rights Act, effectively killing one of the crown jewels of the civil rights movement and the nation’s most powerful statute to prevent discrimination in voting.The court’s decision in the case, Louisiana v Callais, could be one of the most consequential rulings for the Voting Rights Act since it was enacted in 1965 and is almost certainly the biggest test for the law since its decision in Shelby county v Holder in 2013, when the justices hollowed out a provision of the law, section five, that required certain places to get voting changes approved by the federal government before they go into effect.The supreme court is considering the constitutionality of the most powerful remaining provision of the Voting Rights Act: section two. The measure outlaws election practices that are racially discriminatory and has been the tool that minority voters and voting rights advocates have frequently turned to challenge redistricting plans – from congressional districts to county commissions and school boards – that group voters in such a way to dilute the political influence of a minority group.Getting rid of section two, or severely limiting the ways in which it can be applied, would effectively kill the Voting Rights Act. It would take away the most powerful tool voters have to challenge racially discriminatory districts.“The stakes are potentially quite large,” said Sophia Lin Lakin, the director of the voting rights project at the American Civil Liberties Union. “The outcome of the case will not only determine the next steps for Louisiana’s congressional map, but may also shape the future of redistricting cases nationwide.”The dispute at the court is focused on a challenge by white voters to a majority-Black district in Louisiana that stretches from Shreveport to Baton Rouge. The justices already heard oral argument in the case in March that focused on whether Louisiana Republicans had overly relied on race when they redrew the district in response to a Section 2 lawsuit by Black voters. In an unusual move, the court did not reach a decision at the end of the court’s term this summer, and instead set the case for re-argument this fall.The justices announced in August they wanted the parties to submit briefing on whether Louisiana’s “intentional creation of a second majority-minority congressional district violates the fourteenth or fifteenth amendments to the US constitution”. The 14th amendment guarantees equal protection of law for all US citizens and the 15th amendment prohibits the government from denying someone the right to vote based on their race.The question raised the stakes of the case at the court, giving opponents of the law a chance to argue that the landmark civil rights statute should either be significantly narrowed or struck down entirely.“The challengers and the state do not limit themselves to whether conditions in Louisiana continue to justify application of the Voting Rights Act there,” said Stuart Naifeh, a lawyer with the NAACP Legal Defense and Educational Fund, which is representing voters defending the existing map. “They have attempted to expand the question beyond what the court has asked. And they argue that section two is not constitutional at all, anywhere.”There are many possibilities for how the court could rule. The justices could beat back those arguments and affirm the constitutionality of section two. The court could also say once and for all that the provision is unconstitutional, dealing a fatal blow to the Voting Rights Act. It could also rule somewhere in between, leaving section two intact, but make the test to deploy it much harder, in effect neutering it.“The two key pillars, at least since 1982, were section two and section five,” said Richard Hasen, an election law scholar at the University of California Los Angeles. “Shelby county already knocked down one of those pillars, and this case could potentially either knock it down or render it so weak that you might as well say it’s been knocked down.” He added that weakening but not killing section two might “potentially avoid some of the political cost”.The case arrives at the court after many of the court’s conservative justices have openly expressed skepticism about the continued need for section two. “The authority to conduct race-based redistricting cannot extend indefinitely into the future,” Justice Brett Kavanaugh wrote in a 2023 concurring opinion, a remark that was widely seen as an ominous sign for section two. Justice Clarence Thomas has long publicly said he thinks the statute is unconstitutional when it comes to redistricting.Congress amended section two in 1982 to clarify that it outlawed practices that resulted in discriminations – one did not need to prove intent. Working as an attorney in the justice department, John Roberts advocated strongly against those amendments.The consequences of gutting section two would be drastic, Lakin and other attorneys representing Black voters defending Louisiana’s current map wrote in a brief to the justices.“Without section two, jurisdictions could simply eliminate minority opportunity districts even where they remain necessary for voters of color to have any opportunity to elect candidates of choice, wiping out minority representation and re-segregating legislatures, city councils, and school boards – as some have recently attempted to do,” they wrote. “Districts based in obvious majority-minority communities, like Harlem or Tuskegee, could be divided along obvious racial lines without consequence.” Louisiana legislators reportedly have already been asked to hold dates for a possible special session on redistricting after the oral argument this fall.The case before the court on 15 October involves a long and twisted saga over Louisiana’s congressional map, which Linda Greenhouse, who covered the supreme court for decades for the New York Times, called “without doubt the most complicated voting rights case I have ever encountered”.After the 2020 census, the state drew a congressional map that had only one majority-Black district out of six, even though Black voters make up about a third of eligible voters in the state. Black voters sued the state under the Voting Rights Act. Two courts agreed with their claims and the state eventually drew a new map that created a second majority-minority district. Wanting to protect powerful incumbents in the state, including the House speaker, Mike Johnson, and Representative Julia Letlow, while also being majority-Black, the new district has an extremely odd-shape.But after the new maps went into effect, a group of white voters sued in a different court, arguing the new district improperly sorted voters based on their race. A court agreed with that argument in 2024, but the US supreme court allowed the redrawn map to go into effect for last fall’s election. Cleo Fields, a Black Democrat, won the district by more than 13 points.His win was a big deal for people like Martha Davis, who worked as both a teacher and administrator for 40 years. She still remembers waiting in segregated waiting rooms as a young girl and going to a segregated Catholic school, where she got used books from the white Catholic school. Now, she lives in North Baton Rouge. “It’s like the wrong side of the track. It’s like the forgotten area,” said Davis, who was one of the Black voters who sued Louisiana over its original map. “There are no hospitals nearby, no grocery stores nearby. The streets are deplorable. Nobody could care less what happens in that part of town.“The fact that we were able to choose somebody that looks like me, somebody who knows what our needs are, and fight for us – that made me overjoyed,” she said.Fields’s win also made a difference to Davante Lewis, a member of the Louisiana public service commission who represents the Baton Rouge area. He said that since Fields’s election last year, it had been easier to get help on federal issues like disaster relief.“When we need help for certain areas, you want your member of Congress to know it,” said Lewis, who was also one of the plaintiffs in the original suit challenging Louisiana’s map. “You don’t want them to be 170 miles away, who have no connection to where you are.”When the case was before the supreme court in March, Louisiana defended its redrawn map – saying it had made a good faith effort to comply with the constitution and the Voting Rights Act after judges had blocked their original plan. But after the justices invited further briefing, the state switched its position and now says that its map is unconstitutional.There isn’t the kind of ongoing discrimination that would justify bringing racial considerations into redistricting, the state’s lawyers say. They argue that the supreme court has only recognized two contexts in which it is acceptable for the government to take race-based action: remedying specific past instances of discrimination and avoiding imminent safety risks in prisons, like preventing a race riot.“Those two interests share a critical feature that section two lacks: They turn on a specific harm and permit only a correspondingly narrow, temporary remedy,” they wrote in their own brief to the court. “Race-based redistricting pursuant to section two, by contrast, is nothing of the sort. It presents no imminent danger to human safety. In its heartland application today, it also has nothing to do with remedying past intentional discrimination, let alone specific, identified instances of intentional discrimination.”The US supreme court has allowed mapmakers to use race in drawing districts if it is in service of a “compelling interest” and its use is “narrowly tailored” to that interest. Writing for the court in a 2017 case, Justice Elena Kagan noted the justices had “long assumed” that complying with the Voting Rights Act was a compelling interest.Those defending the maps argue that supreme court precedent already requires them to clear a series of high hurdles to show that race-conscious redistricting is needed in a section two case. It is difficult to win a section two case. From 2012 to 2021 there were 48 section two cases dealing with vote dilution filed and just 21 of them were successful, according to data collected by the Voting Rights Institute at the University of Michigan. Clearing those hurdles, those defending Louisiana’s map say, requires them to show that there is ongoing discrimination.“Section two’s permanent nature does not mean that its application is without limitation. Congress ensured that section two’s results test is appropriately constrained and requires a remedy only where race is already shaping political decision-making,” they wrote in their brief to the court. “Where voting is starkly racially polarized, leading to a pattern of persistent and ongoing electoral losses for candidates preferred by a cohesive minority voting bloc, as is true in Louisiana, those current conditions may give rise to the need for a race conscious remedy for unlawful racial vote dilution.”The Trump administration has filed a brief in the case siding with the white voters challenging the map and urging the supreme court to make it harder to win a section two case. Since Trump’s inauguration, the justice department has withdrawn from all of its pending section two cases and has not filed any new ones. “Too often, section two is deployed as a form of electoral race-based affirmative action to undo a state’s constitutional pursuit of political ends.”Davis, the former teacher who recalled growing up during segregation, expressed disbelief at the argument that the Voting Rights Act was no longer needed. “The fact that they want to take that away, it’s like we just keep fighting and fighting and fighting, when does it end?” More
