The Supreme Court’s recent oral arguments in a crucial Louisiana redistricting case signal a potential further weakening of the landmark Voting Rights Act, specifically its Section 2 provisions designed to protect minority voters. This looming decision follows a decade of judicial rollbacks, beginning with Shelby County v. Holder, and threatens to redefine the very foundation of equal representation in America, challenging states’ ability to address historical discrimination in electoral maps.
The United States Supreme Court is once again at the center of a contentious battle over voting rights, with recent oral arguments in a Louisiana congressional redistricting case signaling a potential further erosion of the landmark Voting Rights Act of 1965 (VRA). This ongoing legal dispute highlights the enduring tension between efforts to ensure equitable representation for minority voters and conservative interpretations of the Constitution that advocate for “colorblind” policies, even when addressing historical discrimination.
The current challenge stems from Louisiana’s struggle to comply with Section 2 of the VRA, which prohibits voting practices that discriminate on the basis of race. After its initial congressional map was found to dilute the power of Black voters, the state was compelled to draw a new map creating a second majority-Black district. However, a group of “non-African American” voters, now joined by the state itself, is challenging this remedial map, claiming it constitutes unconstitutional racial gerrymandering under the Equal Protection Clause of the U.S. Constitution, which was enacted after the Civil War to ensure equal rights for former slaves.
A Decade of Diminished Protections: The VRA Post-Shelby County
The current legal skirmish in Louisiana is not an isolated event but rather the latest chapter in a broader narrative of the Supreme Court’s evolving—and often restrictive—stance on voting rights. The most significant turning point came in 2013 with Shelby County v. Holder, a decision that dismantled a core enforcement mechanism of the VRA.
In Shelby County, the Supreme Court invalidated Section 4(b) of the VRA, which contained the formula used to identify states and localities with a history of discrimination. By striking down this formula, the Court effectively rendered Section 5, the “preclearance” provision requiring these jurisdictions to obtain federal approval before changing voting policies, unenforceable. Chief Justice John Roberts justified the decision by pointing to perceived gains in minority participation and representation. However, many experts, including those from the Brennan Center, cautioned that this was a “reckless gamble” that would accelerate voter suppression, a prediction that has been borne out by ample evidence from the last decade. Kareem Crayton, the Brennan Center’s senior director of voting rights and representation, noted that the absence of Section 5 has forced advocates to expend energy “just to stay above water,” rather than moving forward. The Brennan Center’s research, compiling over a billion pieces of voter data, shows that the racial turnout gap has increased nationwide since 2013, growing twice as fast in former preclearance jurisdictions, as reported by the Brennan Center.
States once covered by preclearance, freed from federal oversight, have since reduced or eliminated features that improved minority participation, such as same-day registration and early voting. The first round of redistricting post-Shelby County often ignored the interests of growing nonwhite populations. Subsequent court decisions, like Brnovich v. Democratic National Committee (2021), further complicated matters by creating higher hurdles for plaintiffs seeking to prove voting rights infringements.
The Battle for Section 2: From Alabama to Louisiana
Adding a layer of complexity to the current landscape, the Supreme Court delivered a surprising ruling in Allen v. Milligan (2023). In a 5-4 decision, the Court unexpectedly reaffirmed the requirement under Section 2 of the VRA that states draw maps to ensure equitable representation for minority voters when necessary. This ruling forced Alabama to redraw its congressional map to include a second majority-Black district, a decision that defied expectations among many court watchers who anticipated further curtailment of the VRA by the conservative Roberts Court. While Justice Brett Kavanaugh joined the majority in Allen v. Milligan, his opinion suggested an openness to future review of race-based redistricting, foreshadowing the very constitutional questions now at play in Louisiana.
The Louisiana case directly confronts the tension between complying with Section 2, which often necessitates considering race to remedy past discrimination, and constitutional challenges asserting that any use of race in redistricting constitutes an unlawful racial gerrymander. Edward Greim, an attorney representing the “non-African American” voters, argued that the creation of the second majority-Black district was a “brutal racial gerrymander” driven overwhelmingly by race, designed to increase the Black voting-age population (BVAP) over 50% despite the statewide Black population being under one-third of the total. Richard Hasen, a UCLA law professor, commented that “conservatives are trying to use constitutional racial gerrymandering causes of action to make an end run around rulings that Louisiana was violating section 2 of the voting rights act,” noting this argument puts pressure on the constitutionality of the VRA itself as a race-conscious remedy, as documented by Courthouse News Service.
The Conservative Push for “Colorblindness” and Partisan Advantage
During oral arguments, conservative justices expressed skepticism about the use of race in redistricting. Justice Samuel Alito, a dissenter in Allen v. Milligan, reiterated his concern that if Section 2 required the creation of majority-minority districts that use race as a predominant factor, then “Section 2 and the Constitution would be headed for a collision.” Justice Neil Gorsuch remarked that the current interpretation allows states to “intentionally discriminate on the basis of race.”
A key proposal from the Trump administration suggested the Court leave Section 2 intact but modify the precedent set in Thornburg v. Gingles (1986). This change would grant states more flexibility to draw maps based on “political objectives,” effectively allowing partisan gerrymandering as a defense against Section 2 challenges. Justice Kavanaugh seemed receptive to this argument, linking it to his previous concern that race-based remedies “should not be indefinite.” However, civil rights groups, represented by Janai Nelson of the Legal Defense Fund, warned that adopting such a proposal would “swallow Section 2 whole” and fundamentally undermine the VRA’s purpose, potentially calling the Court’s legitimacy into question, as reported by NBC News.
Liberal justices, including Sonia Sotomayor and Elena Kagan, staunchly defended the VRA, emphasizing that race-based redistricting under Section 2 is designed solely to remedy specific, proven violations of the law, not as an open-ended racial preference. They argued that the Court should uphold its recent precedent from Allen v. Milligan, which clearly required such remedies.
What Lies Ahead: Implications and Mitigation Efforts
A broad ruling in favor of Louisiana, or one that significantly weakens Thornburg v. Gingles, would have profound implications for minority voters and American democracy. It could:
- Reduce Minority Representation: Limit the ability of civil rights groups to challenge discriminatory maps, likely leading to a reduction in the number of minority lawmakers at both federal and state levels.
- Boost Partisan Gerrymandering: Provide states with greater legal cover to prioritize partisan objectives over ensuring fair minority representation, potentially entrenching single-party control.
- Exacerbate Turnout Gaps: Further widen the racial turnout gap, diminishing the voices of hundreds of thousands of voters of color.
- Undermine the VRA’s Legacy: Continue the decade-long process of chipping away at a law once considered the “crown jewel” of the civil rights movement.
In response to the federal VRA’s diminishing protections, states across the country are taking matters into their own hands. Jurisdictions like Maryland are establishing their own state-level voting rights acts (State VRAs). The recently filed Maryland Voting Rights Act (SB 0878 / HB 1104) seeks to prevent discrimination by requiring pre-approval for voting changes in historically discriminatory counties, expanding protections for non-English speaking voters, and strengthening legal recourse for victims of discrimination, as outlined by the Campaign Legal Center. This growing movement for state VRAs represents a critical effort to safeguard democratic principles in the face of federal retrenchment.
Advocates continue to push for federal legislative repair, such as the John R. Lewis Voting Rights Advancement Act and the Freedom to Vote Act, which aim to restore VRA oversight and combat gerrymandering. As the Supreme Court weighs its decision, the future of equitable voting rights in America remains precariously balanced.
