The Voting Rights Act Is Now A ‘dead Letter’ After Latest Supreme Court Decision

A long-held goal of the conservative legal movement came to fruition on Wednesday: The gutting of the Voting Rights Act.

The Supreme Court’s 6-3 decision in Louisiana v. Callais, a case challenging the drawing of a second majority-Black district in the state, left the landmark civil rights law on the books. But the racial protections in the law were so dramatically weakened as to render them effectively useless, the liberal minority on the court and prominent legal scholars argue.

The decision, Justice Elena Kagan wrote in her dissent, marks the “latest chapter in the majority’s now-completed demolition” of the law.

“Very little remains,” said NAACP general counsel Kristen Clarke, who led the Justice Department’s Civil Rights Division during the Biden administration. “There’s some small protections with respect to language access, an important prohibition on voter intimidation, but very little remains. This is a dark day in our democracy.”

The immediate impact of the decision on the upcoming midterms is not yet known, with primaries in many states already underway. But observers on both sides of the aisle expect dramatic overhauls of state maps by the 2028 elections — particularly across the South. Critics of the decision, including those in the court’s liberal minority, argue it will make it far easier for mapmakers to draw political lines that dilute the voting power of minorities, under the guise of doing it for purely partisan advantage.

Conservatives have long argued that VRA cases morphed from a genuine need to protect racial minorities to a partisan tool for Democrats to lock up seats. Now that conservative justices have completed their decade-plus long march to slash away at the law in a series of major decisions, they’re taking a victory lap.

“For decades the left has spent hundreds of millions of dollars seeking to divide Americans along racial lines in a cynical pursuit of partisan power masquerading as civil rights enforcement," Adam Kincaid, the president of the National Republican Redistricting Trust, said in a statement. “Race based redistricting is an odious practice prohibited by our colorblind Constitution and now the Supreme Court has restored the Voting Rights Act to its proper context.”

At the core of the Callais ruling is Section 2 of the VRA, a provision of the law that broadly outlaws discrimination in voting on the basis of race. For decades, courts and lawmakers have interpreted that to allow — and sometimes require — the use of racial data in redistricting, to protect the voting power of Black, Latino and Asian Americans.

States have drawn dozens of majority-minority districts in Congress — districts where minority voters made up either outright or close to a majority of voters — so those communities have the ability to elect candidates of their choosing.

But Justice Samuel Alito’s decision Wednesday, in which he was joined by the rest of the high court’s conservative bloc, resets the test in which to determine if minority voters are being discriminated against.

It is not enough to demonstrate discriminatory results, as was broadly the case previously; there must be evidence of discriminatory intent, or “a strong inference that the State intentionally drew its districts to afford minority voters less opportunity because of their race,” he wrote for the court’s majority.

Some scholars say that’s going to be an incredibly difficult bar to clear.

“It’ll be not just hard, but really really really hard,” to bring future VRA challenges “in any states that allow partisanship to infect the process,” said Justin Levitt, a constitutional law professor at Loyola Law School who served in the Biden White House as an adviser for democracy and voting rights.

Conservatives have long argued that the country has changed dramatically since the VRA was first signed into law in 1965. In a modern America with a racially polarized electorate, a results-based test has effectively turned challenges based on race into a proxy for partisanship, with Black and Latino voters generally leaning Democratic. That, they argue, is particularly the case after the Supreme Court in 2019 ruled that partisan gerrymander claims were not justiciable.

Alito repeatedly cited that rationale in his landmark ruling.

“Vast social change has occurred throughout the country and particularly in the South,” Alito wrote. “In a State where both parties have substantial support and where race is often correlated with party preference, a litigant can easily exploit §2 for partisan purposes by ‘repackag[ing] a partisan-gerrymandering claim as a racial-gerrymandering claim.’”

Under a new test authored by Alito, challengers must now draw new suggested maps that “cannot use race as a districting criterion” while still showing minority voters are disadvantaged. They must also prove that any disadvantage is not the result of favoring partisanship-driven outcomes, or other permissible goals like protecting incumbents.

“Simply pointing to inter-party racial polarization proves nothing,” Alito writes, “because ‘a jurisdiction may engage in constitutional political gerrymandering, even if it so happens that the most loyal Democrats happen to be black Democrats and even if the State were conscious of that fact.’”

Taken together, “it is hard to overstate how much this weakens the Voting Rights Act,” wrote Rick Hasen, a prominent election law scholar at UCLA Law who has been critical of the court’s moves to weaken the VRA.

Wednesday’s decision is the Supreme Court’s biggest blow yet to the VRA, after chipping away at the law for over a decade.

One of the first major blows was in 2013 in Shelby County, where the court struck down a different part of the VRA that determined which states and counties must face “preclearance” — approval from either the Department of Justice or a federal court — before changing voting laws, including congressional and legislative lines.

That decision was issued, in part, due to the court’s majority saying that the formula used to determine jurisdictions with a discriminatory history was outdated. A string of decisions since then further tightened the Voting Rights Act and Section 2 in particular, save for a surprise 2023 decision that saw Chief Justice John Roberts and Justice Brett Kavanaugh join the liberals to leave the remainder of the law largely intact.

The Alito-authored decision was not, on paper, the end of the VRA’s Section 2 enforcement, which is far and away the most consequential part of the law remaining. Justice Clarence Thomas, in his concurrence, argued for the court to go even further and rule that there is no place for the VRA in redistricting entirely — something only Justice Neil Gorsuch signed on to.

Still, longterm, it may mark the end of enforceable Section 2 protections as states embark on another round of mapmaking, rendering the law a “dead letter,” Kagan wrote.

The decision is not only about Louisiana, but “it is about the many other districts, particularly in the South, that in the last half-century have given minority citizens, and particularly African Americans, a meaningful political voice,” she warned. “After today, those districts exist only on sufferance, and probably not for long.”

Andrew Howard contributed to this report.