Supreme Court conservatives poised to further gut the Voting Rights Act
By Joan Biskupic, CNN Chief Supreme Court Analyst
(CNN) — Two years ago, the US Supreme Court surprised observers and even some inside the court when it narrowly preserved the 1965 Voting Rights Act and race-based remedies intended to counteract historic discrimination against Blacks and other minorities.
But new signals from the justices point to a potential reversal and suggest a looming retrenchment of the landmark civil rights law.
The court may be on the brink of forbidding the consideration of race in redistricting and eroding states’ ability to consolidate Blacks or other racial minorities into majority-minority congressional districts to boost their chance of electing a candidate of their choice.
The longstanding Voting Rights Act cure for discriminatory maps will be tested in a Louisiana case to be argued on Wednesday.
The controversy was originally heard last March, but the justices could not resolve it by the end of June when the 2024-2025 session ended. Rarely do the justices order new arguments. But when they do, they’ve been known to rule far more consequentially, as in the 2010 Citizens United case when the re-argument led to a decision giving corporations and labor unions new First Amendment rights to pump money into elections.
In the Louisiana redistricting fight, the court announced in August that it was expanding the legal question to squarely confront whether Voting Rights Act remedies tied to race and used for decades might violate the Constitution’s guarantee of equal protection.
The eventual decision would affect the fate of candidates in Louisiana’s 2026 midterm elections and reverberate in congressional and legislative redistricting battles across the country in years to come.
New York University law professor Richard Pildes, an election law expert, said the VRA’s racial remedies have in the past constrained some more obvious attempts at partisan gerrymandering.
“In southern states, for example, which are Republican dominated, they haven’t been able to make every congressional district a likely Republican district because of the obligation to create Voting Rights Act districts (with Black majorities) in those states,” Pildes said.
“If the court dramatically weakened Section 2, it could be easier for states to do away with those districts and make their congressional districts more Republican,” he added.
The case gives this conservative-dominated bench another opportunity to slash remedies intended to counteract historic discrimination.
Two years ago, the justices struck down affirmative action in higher education, and earlier in 2007, they invalidated public-school integration plans. In that case, Chief Justice John Roberts wrote, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”
The Roberts Court has already weakened the Voting Rights Act, passed by Congress at the height of the civil rights era and only after the March 7, 1965, “Bloody Sunday” attack on voting-rights marchers as they crossed the Edmund Pettus Bridge in Alabama.
“Our country has changed,” Roberts wrote in a 2013 decision, Shelby County v. Holder, that eviscerated a VRA provision that had required states with a history of race discrimination to obtain Justice Department pre-approval for changes in electoral practices such as new voting ID requirements and redrawn district maps.
Eyes on Kavanaugh
During the first round of arguments in the Louisiana case over the VRA’s Section 2, which prohibits practices that give racial minorities less opportunity than Whites to elect their preferred candidates, Justice Brett Kavanaugh suggested that it may be time similarly to scale back the remedies of that section.
He raised the possibility of “durational” limits, noting that in the context of school integration and university admissions, the court has ruled that “the authority of a state to engage in race-based remedial action must have a logical end point, must be limited in time, must be a temporary matter.”
Justice Clarence Thomas, the longest serving member of the right wing, has more fervently argued for an end to the VRA’s race-based remedies. He has been joined at various times by fellow conservative Justices Samuel Alito, Neil Gorsuch and Amy Coney Barrett.
On the other side of the issue, liberal Justice Elena Kagan has emphasized the essential goal of Section 2, writing in a 2021 case: “Citizens of every race will have the same shot to participate in the political process and to elect representatives of their choice. They will all own our democracy together – no one more and no one less than any other.”
The Louisiana case returns to the high court as separate off-year congressional districting battles have erupted to influence next year’s races for the US House of Representatives, currently controlled by a slim Republican margin.
President Donald Trump urged GOP-led states to try to secure more seats in the 2026 elections, triggering a round of partisan gerrymandering, the legislative practice of drawing maps to ensure candidates of the dominant political party win.
The Trump administration also wants to curb the power of Section 2.
“Current voting conditions cannot justify such excessive consideration of race,” US Solicitor General John Sauer wrote in a brief to the court in the Louisiana case.
Louisiana changes its position
The dispute to be argued Wednesday traces to 2022 when the Louisiana state Legislature adopted a plan for the state’s six congressional districts that included a single majority-Black district. (About one-third of Louisiana’s population is African American.)
Black voters sued, alleging that Blacks had been “packed” into that one district and “cracked,” or spread out, among others, effectively diluting their voting power.
Lower federal court judges determined the map likely violated Section 2 and ordered the state to draw a second majority-Black district.
The Louisiana Legislature then created two-majority Black districts. Rather than accept options for districts that would be more tightly drawn, they crafted a map that cut a snake-shaped district through the middle of the state. They said they wanted to maintain safe districts for key Republican incumbents such as House Speaker Mike Johnson.
A group of mainly White residents sued, arguing that the revised map amounted to unconstitutional racial gerrymandering under the Equal Protection Clause, and a lower federal court agreed. That court faulted state legislators for failing to meet various race-neutral principles such as compactness.
In the first round at the Supreme Court, Louisiana state officials defended the revised map, saying that they were properly balancing the remedy for a VRA violation with protection for incumbents. Now, however, state Solicitor General Benjamin Aguinaga writes in a brief, “Race-based redistricting is fundamentally contrary to our Constitution,” and that state officials were pressured by judges into creating the second Black-majority district.
The White challengers add in their recent brief that Section 2, “entrenches race-based thinking in districting, guarantees the persistence of race-based remedies long after intentional discrimination withers away, and makes race a permanent casus belli. It must end. It can end.”
Black voters taking the lead to defend the current district contend such race-conscious redistricting remains vital and warn the high court against returning Louisiana and the rest of the country to an earlier time.
“The upshot of Louisiana’s burn-it-all-down approach is that it wants relief from any congressional or judicial scrutiny of its voting laws,” their lawyers told the justices in a new filing.
“Let there be no mistake: That was the situation that prevailed in Louisiana and nationwide for the 100 years before the VRA,” they added. “It was a time when Black voters and other voters of color were systematically excluded from the political process, when states freely and regularly drew districts that made it impossible for Black citizens to elect candidates of their choice, and when no Black person sat in Louisiana’s legislature or congressional delegation.”
At the court Wednesday, facing off against state solicitor general Aguinaga and others backing Louisiana, will be Janai Nelson, president and lead counsel of the NAACP Legal Defense Fund.
Roberts’ majority from 2023 is shaky
A focus of the justices’ arguments Wednesday will be Congress’ 1982 amendment of Section 2 to ban any practice that “results” in a denial of the right to vote on account of race.
The Trump administration, backing Louisiana’s new position against Section 2, has urged the high court to rule that judges hearing districting lawsuits should look for intentionally discriminatory practices and set a higher bar for when a race-based redistricting plan is imposed.
Roberts wrote in the 2023 Alabama case that reaffirmed Section 2 that awareness of race is not only permissible but can be required.
“When it comes to considering race in the context of districting, we have made clear that there is a difference ‘between being aware of racial considerations and being motivated by them,’” he wrote. “The former is permissible; the latter is usually not. … Section 2 itself ‘demands consideration of race.’ The question whether additional majority-minority districts can be drawn, after all, involves a ‘quintessentially race-conscious calculus.’”
But Roberts’ majority was shaky, and Kavanaugh, the key fifth vote in 2023, declined to sign onto that portion of the opinion in Allen v. Milligan. (All three liberal justices joined with Roberts.)
When the court announced re-arguments in Louisiana v. Callais last June, Thomas dissented from the order. He wanted no delay in a resolution that might find Section 2 violates the Constitution’s guarantee of equal protection.
“I am hopeful,” Thomas wrote then, “that this Court will soon realize that the conflict its Section 2 jurisprudence has sown with the Constitution is too severe to ignore.”
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