The Voting Rights Act, the watershed Civil Rights era law that has prevented attempts to dilute minority votes through racially gerrymandered electoral maps hundreds of times, turns 60 Wednesday.
The violence inflicted upon the civil rights advocates who tried to march across the Edmund Pettis Bridge in Selma, Alabama one Sunday afternoon in March 1965 did not deter them, but instead broke the lock on the ballot box their segregationist assailants had imposed. Days after, President Lyndon B. Johnson publicly called on Congress to pass the Voting Rights Act (VRA) and a few weeks later, he signed it into law, calling it “a triumph for freedom as huge as any victory won on any battlefield.”
But instead of anniversary toasts, election law experts are preparing eulogies for the landmark legislation, which conservative lawyers have attacked on multiple fronts in recent years, after the U.S. Supreme Court took square aim at the statute’s constitutionality last week.
The Court ordered supplemental briefing in a case challenging a congressional map redrawn by the Louisiana legislature in 2024 after a federal court ruled that the state’s previous map likely violated Section 2 of the VRA. Louisiana redrew its map to include a second majority-minority district to better match the racial makeup of the state — the common remedy in racial gerrymandering cases. But after delaying its opinion until the fall, the Court asked the parties whether a state’s creation of a “majority-miniority congressional district violates the Fourteenth or Fifteenth Amendments.”
“To me, this is it,” said Luis Fuentes-Rohwer, a law professor at Indiana University Bloomington. “I would bet my left arm that they will tell us that Section 2 is in violation of the Fifteenth Amendment.”
‘What took them so long?’
Fuentes-Rohwer isn’t alone in thinking that this Court — blithely unbothered by the irony — will likely rule that the law Congress enacted to codify the Fifteenth Amendment is, in fact, a violation of it.
After all, it will be the culmination of a decades-long effort to chip away at the VRA and expand a colorblind reading of the Constitution’s reconstruction amendments. “What took them so long?” Fuentes-Rohwer said. “Nobody should be surprised.”
Omar Noureldin, the senior vice president of policy at Common Cause, agreed. “I think we’re seeing, over the last 15 years or so, a concerted attack on the ability for people to ensure that they do have fair representation,” he said.
Fuentes-Rohwer pointed to legal memos Chief Justice John Roberts wrote in 1982, back when he was a young Department of Justice lawyer in Ronald Reagan’s administration. In them, Roberts argued for a narrow reading of the VRA in general, and specifically against the ultimately-successful effort in Congress to amend Section 2 to prohibit voting laws that were racial discrimination in effect, and not just intentionally so.
The Beginning of the End: Shelby County v. Holder
Once on the Court, Roberts wrote the 5-4 decision in 2013’s Shelby County v. Holder, which struck down Section 4(b) of the VRA, rendering the law’s “preclearance” requirements — that states with a history of discrimination seek federal approval in advance before changing electoral laws or maps — unenforceable.
Preclearance was the VRA’s most powerful provision, and as such Congress set a deadline on them, which it then extended multiple times on a bipartisan basis. “Congress has reaffirmed its belief that all men are created equal; its belief that the new founding started by the signing of the bill by President Johnson is worthy of our great nation to continue,” President George W. Bush said at the 2006 reauthorization bill’s signing.
But in Shelby County, Roberts argued that Congress had failed to update the formula for subjecting states to preclearance to match with the times, advancing a novel legal theory that “equal sovereignty” required treating states the same.
Since then, the Court has grown more conservative, with a liberal justice in Ruth Bader Ginsburg and a moderate in Anthony Kennedy being replaced by conservatives Amy Coney Barret and Brett Kavanagh. Along the way, the Court continued to weaken the VRA, leading Notre Dame Law Professor Derek Muller to conclude after the Court’s 2021 decision in Brnovich v. DNC that “it is perhaps only a small overstatement to say that the Court is less interested in plaintiffs’ election law challenges than at any point since the 1940s and 50s.”
Roberts’ temporal argument in Shelby County — that the history of segregation justifying the VRA’s preclearance rules in 1965 was no longer legally applicable in 2013, even though Congress had reauthorized the law just seven years earlier — was “an abomination,” Fuentes-Rohwer argued, but one he didn’t expect to see again because the other operative provisions of the VRA did not have an expiration date like Section 4(b). So the idea of setting aside a law Congress passed because “the authority to conduct race-based redistricting cannot extend indefinitely into the future,” seemed absurd to Fuentes-Rohwer — until Kavanagh wrote just that two years ago, in his concurrence in Allen v. Milligan.
In that case, Kavanagh joined a 5-4 majority in upholding a lower court’s decision that Alabama’s 2021 redistricting violated Section 2 of the VRA. But in his concurrence, he said he didn’t consider the temporal argument against the provision only because Alabama didn’t raise it. Now, 14 Republican-led states have filed a joint amicus brief to the Louisiana redistricting case advancing this “temporal claim.”
Kavanagh also signaled in Allen a greater inclination toward tossing out precedent when the issue, as it is now in the Louisiana case, is a matter of constitutional interpretation rather than statutory. “But the stare decisis standard for this Court to overrule a statutory precedent, as distinct from a constitutional precedent, is comparatively strict,” he wrote.
In addition to Kavanagh and Roberts, the other conservatives on the Court seem ready to kneecap the VRA’s strongest remaining leg. Justices Barrett, Neil Gorsuch, Sam Alito and Clarence Thomas all dissented in Allen. And Thomas has already written in the Louisiana redistricting case that he sees an “intractable conflict” between the Court’s current interpretation of Section 2 and the Fourteenth Amendment.
Alexander Hamilton: ‘The true principle of a republic is that the people should choose whom they please to govern them.’ SCOTUS: ‘Nah.’
If that happens, “that would mean we have one less tool to use to fight that process where politicians choose people rather than the people choosing the politicians,” said Common Cause’s Noureldin. “It’s not to say there aren’t other tools available, but Section 2 of the Voting Rights Act is a big tool.”
VRA opponents have also advanced legal theories in recent years arguing that because Section 2 does not explicitly provide for a “private right of action,” then only the U.S. Attorney General — not individuals or groups — can sue to enforce it. Since Congress expanded Section 2 in 1982, more than 450 cases have been litigated in federal courts under it with plaintiffs winning at least 182 times. Of those, only 15 were brought by the Attorney General alone.
In his concurrence in Brnovich v. DNC, Gorsuch suggested that the private right of action was “an open question.” And a few years later, the 8th Circuit Court of Appeals decided the law didn’t allow private actors to sue. The plaintiffs in the North Dakota redistricting case asked the Supreme Court to intervene, prompting the court to pause the ruling while they file their request for certiorari later this year.
The 8th Circuit also ruled in another July decision that private actors similarly cannot sue under the VRA’s Section 208, which protects a voter’s right to assistance if they have a disability or limited English proficiency, because the statute doesn’t explicitly provide for one.
Voting rights advocates say that they’ll still be able to fight even if the VRA is greatly diminished by any, or all, of these ongoing legal attacks. Gerrymandered maps can be challenged with malapportionment claims under the Fourteenth Amendment, “crack and packing” claims under the First Amendment, said Noureldin. States that explicitly redistrict based on race would face Fifteenth Amendment claims, and lawsuits brought under state constitutions — including some that ban partisan gerrymanders — would remain unaffected by the Supreme Court’s rulings.
Still, if the justices do weaken the VRA, Republican-controlled states will likely move quickly to take advantage of more permissive gerrymandering rules, as they did in the wake of Shelby County. After that 5-4 ruling made it so southern states no longer had to seek preclearance from the federal government for their electoral maps, three states – Alabama, Georgia and Louisiana — immediately redistricted, eliminating majority-minority seats. Eventually, federal courts found all three violated the VRA and ordered remedial maps. But the lawsuits continued, leading to the very VRA cases before the court today.
The enervation of the VRA would also likely spur more partisan gerrymandering. While the Court ruled in Rucho v. Common Cause that partisan gerrymandering, although illegal, presents a non-justiciable question, opponents could still sue under Section 2 of the VRA. Its discriminatory effects test meant that courts could still block some attempts at redistricting intended just to maximize partisan margins but which led to racially inequitable districts.
As a result, the battle against unfair electoral laws and gerrymander maps would shift from the courtroom to the statehouses, said Fuentes-Rohwer.
“If you remove Section 2, then the whole thing is unseemly politics,” Fuentes-Rohwer said. “Where does that leave voters of color? It leaves them on the back end.”