The Imminent Death of the Voting Rights Act
Questions about the Voting Rights Act’s constitutionality have long been hanging in the air at the Supreme Court. But it was only this month, in an order expanding a Louisiana redistricting case, that the justices placed the issue squarely on their docket.
Now that they have done so, with argument scheduled for Oct. 15, there is little doubt that what remains of the 1965 law after its evisceration in the Shelby County case 12 years ago will be seriously weakened, if not repudiated in its entirety by the time the court’s next term is over.
My point here is not to join the chorus predicting that tragic outcome. Rather, I’d like to pose a question: How did we get to this point? How can it be that a law enacted to eradicate racial discrimination in electoral opportunity, a crowning achievement of the civil rights era, may fall 60 years later to the argument that the law itself has come to be seen in some powerful quarters as an engine of racial discrimination?
Might the explanation for the law’s perilous state be that it has simply outlasted its usefulness, that the conditions that led Congress to enact it no longer exist sufficiently to justify the continual judicial scrutiny it imposes on state mapmakers? That was at the heart of the argument that Chief Justice John Roberts made in the Shelby County case, in which the court disabled the section of the law requiring that states with a history of voting discrimination obtain federal approval before making changes in their election laws. “Things have changed dramatically” in the South, the chief justice declared in his majority opinion, freeing those states from the reach of the law’s Section 5.
It was also the argument that Justice Brett Kavanaugh appeared to embrace two years ago, when he reluctantly concurred with a decision that required Alabama to draw a second congressional district with a Black majority. That case, like the Louisiana case, concerned the act’s Section 2, which seeks to ensure that members of all groups have an equal opportunity to elect representatives of their choice.
The argument that the Voting Rights Act has outlived its usefulness is easily refuted by facts on the ground. The County Commission of Fayette County, Tenn., recently settled a Voting Rights Act suit brought by the NAACP Legal Defense Fund that challenged the county’s electoral system as racially discriminatory in violation of Section 2 and the Constitution. Despite a Black population in the county of more than 25 percent, the 19-member commission has no nonwhite members. The Legal Defense Fund dismissed its lawsuit after the commission drew a new districting plan with three majority-Black districts.
I will avoid getting into the weeds of the Louisiana congressional districting case, the one now before the court, without doubt the most complicated voting rights case I have ever encountered. Briefly, Louisiana v. Callais has its origins in an earlier case, a 2023 Fifth Circuit decision that required the state to create a second majority-Black congressional district. (A third of Louisiana’s population is Black and the state has six congressional districts.) A political struggle ensued over how to carve out a second district while protecting the districts of two leading Republican members of Congress, Mike Johnson and Steve Scalise.
The question the justices were asked to decide in the Callais case during the last term was whether the lines the State Legislature ultimately drew properly balanced race and politics. That is a perennial Section 2 question: The court’s precedents hold that while race must be taken into account when racially discriminatory districting is alleged, racial considerations may not predominate over other districting factors. The court heard the case in March but was unable to decide it by the time the term ended in June. Any argued case that remains undecided when a Supreme Court term ends requires a new argument in the next term, a move that is considered routine.
But there was nothing routine about the order to rehear the case that the court issued on June 27. Justice Clarence Thomas dissented in a six-page opinion chastising his colleagues for avoiding what he insisted was the real issue in the case, the constitutionality of Section 2 itself. “For over three decades, I have called for ‘a systematic reassessment of our interpretation of Section 2,’” he wrote.
I have to underscore the extraordinary nature of Justice Thomas’s dissent; in my decades of following the Supreme Court, I have never seen a dissent from a reargument order. It was clear that the justices had not simply run out of time to decide a complex case. They had come to a long-deferred moment of truth: whether to finally accept Justice Thomas’s frontal challenge or whether to continue to deflect it.
What is unfolding in an eerie way is a replay of a Voting Rights Act drama that took place early in Chief Justice Roberts’s tenure, years before the current conservative supermajority coalesced. In 2009, the court took up a case from Texas that challenged the constitutionality of the Voting Rights Act’s Section 5, which required federal preapproval for election law changes in states with a history of discrimination. In an opinion by the chief justice, the court sidelined the issue and decided the case, Northwest Austin Municipal Utility District No. 1 v. Holder, on narrow grounds. Only Justice Thomas objected. It was time, he said, to declare that Section 5 exceeded Congress’s power and “can no longer be justified.” His opinion sounded discordant and drew little attention. Four years later, he was vindicated in the Shelby County decision.
In the Alabama redistricting case two years ago, the case that drew Justice Kavanaugh’s warning about time running out on Section 2, Chief Justice Roberts’s majority opinion hewed carefully to the facts of Alabama’s behavior. He explained in detail how the lower court, in finding that the state needed to provide a second majority-Black congressional district, had done nothing more than properly follow Supreme Court precedent. Given the chief justice’s well-known hostility to Section 2, dating back to his early years as a lawyer in the Reagan administration, when the scope of the provision was the subject of an intense political battle, his opinion took many people, including me, by surprise.
Rereading the case now, it seems to me that he recited the court’s precedents without embracing or endorsing them. What jumps out, rather, is Justice Thomas’s dissenting opinion, describing Section 2 as “hijacking the districting process to pursue a goal that has no legitimate claim under our constitutional system: the proportional allocation of political power on the basis of race.” It seems possible, if not likely, that just as the Northwest Austin case served as a prelude to Shelby County, so might the Alabama case, Allen v. Milligan, be the prelude to the final dismemberment of the Voting Rights Act.
To return to my question of how we reached this point: The Louisiana case should be seen in a context bigger than the law and history of voting rights. The early debate in which the young John Roberts took an active part was about whether Congress, in amending Section 2 so that it would not require actual proof of intentional discrimination, was building into the law a requirement of racial proportionality. He feared that it did, as he explained in a December 1981 memo to his boss, Attorney General William French Smith: “Violations of Section 2 should not be made too easy to prove,” he wrote.
The amendment passed after a leading Republican senator, Bob Dole, introduced language that explicitly disavowed proportionality as a goal. Nonetheless, the concern about whether the amended Section 2 anchored into the law a kind of racial entitlement, as so vividly described by Justice Thomas, has not only lingered but also grown as the country has retreated from the concerns that fueled the civil rights movement.
Now it is white people who are depicted as the victims of discrimination in many quarters, including the White House. When white South Africans are invited to enter the United States as refugees while actual refugees are remitted to their fates, and when the president demands that a museum designed to tell the African American story must tell a happier tale, can it really be a surprise that a 60-year-old voting rights law may not live to see its 61st birthday?
And so the court will take the Voting Rights Act’s measure, and a decision will emerge that will gratify some people and underscore for others how the country’s history is being flipped upside down. But we cheat ourselves if we think of Louisiana v. Callais as only, or even principally, a Supreme Court story. It’s the story of the United States in this time. If the court has lost its mooring, it will take the rest of us with it.
[Linda Greenhouse, the recipient of a 1998 Pulitzer Prize, reported on the Supreme Court for The Times from 1978 to 2008.]