How the Roberts Court Could Neuter the Voting Rights Act 

The fate of the Voting Rights Act, at issue in Louisiana v. Callais, might depend on a devastating decision from six years ago.  

In 2019, in Rucho v. Common Cause, the Supreme Court refused to entertain partisan gerrymandering claims, declaring that “a jurisdiction may engage in constitutional political gerrymandering.” That statement could now insulate maps that harm minority voters—a move that would hollow out Section 2 of the landmark 1965 law. 

Section 2 of the Voting Rights Act is a nationwide provision that prohibits any voting rule that “results” in discrimination based on race. Congress adopted this “effects” test in 1982 after the Supreme Court interpreted the prior version to reach only discriminatory intent. Under the current formulation, intent is irrelevant; the question is whether the effect of a rule negatively impacts minorities. In 1986, in Thornburg v. Gingles, the Court set out a test that it is has used ever since to determine whether a map dilutes minority voting strength: Can the plaintiffs draw a different map that creates additional, compact majority-minority districts, is there racial bloc voting—that is, does a white majority tend to outvote a racial minority’s preferred candidate—and, under the “totality of the circumstances,” is there a history of discrimination in the state? That test has allowed courts to root out the worst abuses, especially in the South, where minority voters are often prevented from banding together and electing a candidate of their choice. 

Last term, the Court heard a Louisiana case regarding this provision. The state has six congressional districts, and roughly 33 percent of its population is Black. However, in the initial map the state drew, Black people were the majority in only one district. Applying the Court’s test for Section 2, a lower court ruled that the map violated the Voting Rights Act. To remedy the problem, Louisiana drew a new map with two majority-Black districts.  

Then, white plaintiffs sued, saying that the map was an unconstitutional racial gerrymander because the state considered race too much. The state claimed it sought to remedy the Section 2 violation while protecting two key Republican incumbents. But instead of ruling whether Louisiana’s consideration of race in the new map was unlawful because it was the predominant consideration, the Court set the case for re-argument this term, raising a much broader question: if Section 2 requires states to consider race when drawing maps, is Section 2 itself unconstitutional? Can Congress use the Fourteenth and Fifteenth Amendments, ratified after the Civil War, to ensure equality?  

The answer to that question should be easy: Congress has full authority under these Reconstruction Amendments to require racial equality in voting. A suggestion that Section 2 is unconstitutional is simply another attempt to erase race from the law, even when doing so would ignore the continuing effects of discrimination. 

Yet the Court may not state explicitly that Section 2 is unconstitutional, especially if the Court’s majority can achieve the same goal by twisting the test in a way that makes it virtually impossible for a plaintiff to win. The Court already used this tactic in 2021 in a case out of Arizona, crafting an arbitrary test for claims of outright vote denial under Section 2. It could apply a similar dismantling strategy to Section 2 claims related to maps that dilute minority voting strength.  

Early in the Louisiana v. Callais oral argument, Justice Samuel Alito asked a key question that might be the whole ballgame: “Under Rucho, isn’t seeking partisan advantage also an objective that a legislature may legitimately seek?” His query suggests that the Court might neuter Section 2 by saying that partisanship is a valid defense to a map, even if the plaintiffs show that the lines harm minority voters.  

Janai Nelson, a lawyer for the NAACP Legal Defense Fund, deftly and correctly answered that question at oral argument: “Not if it comes at the cost of the equal protection principle and the Fifteenth Amendment’s prohibition on race discrimination in voting.” Put differently, a state should not be able to cite a partisan goal to insulate itself from its map harming minority voters. Otherwise, the promise of the amendment, which prohibits racial discrimination in voting rules, would become a dead letter.  

Several justices, however, kept returning to the idea that partisanship is a “neutral” districting principle that a state may validly promote. Justice Alito once again noted that because of Rucho, a state could consider partisanship and incumbent protection as a “permissible legislative objective.” Justice Brett Kavanaugh twice asked the lawyers about the idea that the Court should hold that “Section 2 plaintiffs cannot claim a lack of equal openness where politics, rather than race, is the likely reason for the state’s refusal to create a majority-minority district.” Justice Kavanaugh did not tip his hand at how he was thinking about that issue, but his repeated mention shows that he believes it is a worthwhile argument to consider. Justice Neil Gorsuch, too, highlighted a state’s political objectives as a key consideration.  

But that inquiry turns Section 2 of the Voting Rights Act on its head and, as Nelson pointed out in response, “would swallow Section 2 whole” because “party cannot trump the responsibility of states to ensure that all voters have an equally open electoral process.” 

The case, then, should be about race, not partisanship. It might make sense to consider a state’s partisan motivation when asking about its intent (though courts should strike down maps drawn to achieve a partisan goal). Still, partisanship should have no bearing on whether the map has a discriminatory effect. Nothing is “neutral” about a state seeking to achieve a political end by skewing the maps. And as Travis Crum, a law professor at Washington University in St. Louis, pointed out, elevating partisanship isn’t a traditional redistricting criterion—it’s a judicial invention from Rucho only six years ago. 

If the Court says that partisanship insulates a state from a Section 2 claim of discriminatory effect, then this pivotal provision will have much less utility. It will be another nail in the coffin of voting rights protections, part of a long line of recent cases in which the Court has narrowed the scope of the Voting Rights Act and unduly deferred to states in their voting rules.  

Rucho, the 2019 case, was wrong when it accepted partisan gerrymandering as constitutional. Extending that principle as a defense to racial discrimination in redistricting is contrary to constitutional law, settled precedent, and the needs of a multi-racial democracy.