The last remaining piece of the 1965 Voting Rights Act – section 2, which empowers the federal government to protect voters from racial gerrymandering meant to dilute Black political power – appears headed for an untimely end. At oral arguments in Louisiana v Callais on Wednesday, the US supreme court appeared ready to strike down section 2, effectively completing the gradual nullification of the Voting Rights Act that it has pursued for over a decade.
The case stems from new congressional districting maps that were drawn in Louisiana after the 2020 census, which found both that the state was eligible for six seats in the House of Representatives and that its population was about one-third Black. The state initially drew maps that featured only one majority-Black congressional district, rejecting seven more racially fair maps; voters sued, and federal courts ordered Louisiana to comply with the Voting Rights Act by drawing new maps in which Black voters would be a majority in a second district, thereby reflecting their share of the population and giving Black Louisianans an equal opportunity to elect representatives of their choice.
But now, a group of people identifying themselves as “non-African-American voters” have sued to get those racially proportionate maps thrown out, arguing that enforcement of the VRA violates their own rights under the 14th and 15th amendments. They claim the maps drawn to remedy racial discrimination against Black people in fact constitute racial discrimination against non-Black (read: white) people. The court seems likely to side with them.
If they do, it will mark the end of the Voting Rights Act, widely considered the crowning achievement of the civil right movement, which the supreme court, under John Roberts, has been dismantling for years. In 2013’s Shelby county v Holder, the court struck down much of section 5, which had required jurisdictions with a history of racial discrimination in voting to get federal preclearance for changes to its voting laws.
In subsequent cases, the court has repeatedly narrowed the conditions under which litigants can bring voting rights claims and expanded states’ leeway to make voting laws that would have previously been deemed discriminatory. Writing for the majority in Shelby, Chief Justice Roberts claimed that racial animus and inequality had diminished enough that such a regime was not necessary, and indeed violated the rights of states. As states imposed a slew of new voting restrictions in the aftermath, the gap between Black and white voter participation rates grew dramatically. It expanded twice as much in districts that had previously been subjected to the section 5 preclearance regime.
On Wednesday, the court seemed determined to apply the same logic that it used in Shelby county to section 2, demanding that Janai Nelson, the head of the NAACP’s Legal Defense Fund, justify why section 2 should still be efficacious and should not be considered to have somehow expired. Justices Kavanaugh and Alito asserted that the racial gerrymander was justified if it was intended as a partisan gerrymander – that is, that the lawmakers’ stated or professed intentions was what mattered, and not the racially discriminatory impact of the gerrymander.
Previous supreme court precedent, as well as ample evidence from the congressional record, has said that discriminatory impact, rather than intent, is sufficient to constitute illegal racial discrimination – but at oral argument, the Republicans on the court, along with those representing the litigants, did not seem to think that this should matter. As she rebutted these arguments in the guise of asking questions from the bench, one could hear the exhaustion in Ketanji Brown Jackson’s voice. The remedies, she sputtered, “are so tied up with race, because race is the initial problem!” Jackson has been the court’s most passionate and articulate advocate for the Reconstruction amendments and for the legacy of the civil rights movement, but she seemed to know that her colleagues were not listening to her.
The case reflects two major trends of the Roberts court: hostility to racial justice claims brought by minorities, and a willingness to invert civil rights law and the Reconstruction amendments alike to create interpretations in which these legal traditions function to entrench, rather than challenge, historical hierarchies of race and gender. Louisiana’s attorney general – who has switched sides in the case since it was initially argued last year, joining an opposition to the Voting Rights Act – claimed that to assume that Black voters would vote differently than white voters – which in Louisiana, they overwhelmingly do – would be to unconstitutionally impose a racial stereotype. This facile fiction elicited exasperation from Justice Kagan.
But the attorney general knew his audience. Roberts has long been an enemy of practices that attempt to remedy historical and ongoing racial discrimination, claiming that the law mandates that state and private actors alike take no interest in such projects and attempt facially race-blind policies in everything from voting rights enforcement to college admissions – no matter how racially discriminatory against Black Americans such practices prove to be in reality. “The way to stop discriminating on the basis of race,” he once memorably said, “is to stop discriminating on the basis of race” – that is, to stop trying to account for or combat racism with official policy. The result will be that if the court rules in Louisiana’s favor, it will no longer be illegal, in practice, to racially gerrymander congressional districts to minimize and dilute Black voter power. But it will be illegal to use race to redistrict in such a way that restores Black voter power.
It is apparently through this fanciful and motivated reasoning that Roberts and his colleagues have decided that any move to secure Black Americans’ voting rights and equality in fact violates the very constitutional amendments that were meant to secure their voting rights and equality. The Voting Rights Act does not violate the 15th amendment; it enforces it, and gave the United States, during the 60 years or so of its enactment, its only plausible claim to being a real democracy. To say that the VRA contradicts the 15th amendment is more than just bad reasoning. It is bad faith. But bad faith, increasingly, is what the supreme court operates under.
If the supreme court rules in favor of the “non-African-American” voters and vacates what is left of the Voting Rights Act, as they are expected to, then a decision will probably come down sometime in June, just a few months before the November 2026 midterms. The resulting racial gerrymanders are expected to net Republicans 19 House seats.
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