WASHINGTON – The Supreme Court could be ready to curtail a key provision of a landmark civil rights law enacted 60 years ago to prevent racial discrimination in voting.
In one of its biggest cases of the year, the court on Oct. 15 debated for two-and-a-half hours about whether electoral districts can be created to protect the voting rights of minorities without discriminating against voters of other races.
Justice Brett Kavanaugh, who joined with Chief Justice John Roberts and the court’s three liberal justices two years ago in backing a provision of the Voting Rights Act at issue here, probed whether that portion of the law is still needed.
“This court’s cases, in a variety of contexts, have said that race-based remedies are permissible for a period of time – sometimes for a long period of time, decades, in some cases – but they should not be indefinite,” he said.
Section Two of the Voting Rights Act tries to keep legislative map drawers from diluting the votes of racial minorities by either packing them into one district or spreading them out among too many districts to have an impact.
But attorneys for Louisiana argue the redistricting protections are “both unworkable and unconstitutional.”
“They have placed states in impossible situations where the only sure demand is more racial discrimination for more decades,” J. Benjamin Aguinaga, Louisiana’s solicitor general, told the Supreme Court.
The attorney for the White voters challenging the act said voters are being “racially stereotyped.”
“If it was ever acceptable under our colorblind Constitution to do this, it was never intended to continue indefinitely,” Edward Greim, the attorney, said.
A ruling along those lines in the Louisiana voting rights case could reduce the number of racial minorities in office at all levels of government.
And it could give the GOP an electoral boost, including in efforts to keep its slim House majority.
“My opponents’ late-breaking and recordless facial and as-applied challenges seek a staggering reversal of precedent that would throw maps across the country into chaos,” said Janai Nelson, president of the NAACP Legal Defense Fund, who argued on behalf of a group of Black voters.
Ongoing battle over Louisiana’s congressional map
The controversy grew out of Louisiana’s attempt to account for population shifts after the 2020 census. The legislature drew a new congressional map that had only one majority-Black district out of six, even though Black people made up about one-third of the population.
When a group of Black voters sued, a judge said the map likely violated the Voting Rights Act.
But when the GOP-controlled legislature created a second majority-Black district, a group of self-described non-Black voters went to court in a separate action, arguing a “racial quota” cost the state a Republican seat in a narrowly divided Congress.
The Supreme Court, which has a 6-3 conservative majority, debated the issue during its last term. But rather than issue a decision, the justices took the rare step of calling for a second round of oral arguments that more squarely put the future of the redistricting protections in jeopardy. They asked whether states can create legislative districts that comply with the Voting Rights Act without violating the bans on racial discrimination in the 14th and 15th Amendments – changes to the Constitution passed after the Civil War to protect the rights of formerly enslaved people.
Court’s liberal justices defend Voting Rights Act
The court’s three liberal justices defended the protections.
Justice Elena Kagan said that the arguments being made against the Voting Rights Act were heard and rejected by the court two years ago when it decided a similar case from Alabama.
Kagan also focused on what the consequences would be if the court now said the law couldn’t prevent diluting the voting power of racial minorities.
Nelson, the attorney representing Black voters in Louisiana, said the results would be “pretty catastrophic.”
She argued the Voting Rights Act had been crucial to diversifying leadership in the state and giving minority voters an equal opportunity to participate in the process.
The fact that Louisiana has never elected a Black statewide candidate shows the outsized role race still plays in the state’s elections, she said.
“What’s the proper size?” Roberts asked.
Nelson responded that Congress was clear when it wrote the law that there should be no time limit on voting rights protections. And the law requires an assessment of current conditions, which she said still show protections are needed in Louisiana.
Louisiana: sky won’t fall if the Voting Rights Act is curtailed
Kavanaugh asked Aguinaga, Louisiana’s attorney, whether he agreed with Nelson that Black voters’ political power would be diminished if the court sided with the state.
Aguinaga said Republicans risk turning safe districts for incumbents into competitive ones if they don’t create majority-minority districts, showing there are reasons other than the Voting Rights Act that might prompt a legislature to avoid spreading racial minorities among multiple districts.
“I don’t think the sky is going to fall,” he said.
The Justice Department, which during previous administrations has backed the Voting Rights Act, advocated for changing how Section Two is applied under a 1985 Supreme Court ruling.
Justice Amy Coney Barrett, part of the court’s conservative wing, asked the Justice Department whether the court could adopt that approach as a mere clarification, rather than an outright overturning of the 1985 decision.
The Justice Department attorney said most of what the government is seeking are modifications.
But Justice Sonia Sotomayor said the proposed changes are just another way of getting rid of Section Two.
“That means Blacks never have a chance, no matter what their number is, until they reach more than 51%,” she said.
Section Two became more important after the court, in 2013, struck down a different part of the Voting Rights Act − one used to monitor states with a history of discrimination. The court said the restriction was “based on decades-old data and eradicated practices.”
Looking for clues in Kavanaugh’s questions
Olatunde Johnson, an expert on anti-discrimination and constitutional law at Columbia Law School, said she didn’t hear Kavanaugh −whose vote could determine the outcome − come out “guns a-blazing” to declare Section Two unconstitutional. But his questions suggested he’s open to a ruling that might constrain it, she said.
Johnson noted that Kavanaugh asked questions about whether the court’s past rulings on the issue adequately dealt with the role partisanship – which is both tied to and separate from race – plays in redistricting.
And he expressed some concern about when race itself becomes too much of a factor and whether its consideration should be time limited.
“It shows, for me, some uncertainty about where Kavanaugh is going to go,” Johnson said.
Potential political implications
If the Supreme Court sides with Louisiana – and does so while states still have enough time to react before next year’s elections − that could supercharge the unusual mid-decade redistricting Republicans have spearheaded before the 2026 midterms.
Spencer Overton, a law professor at George Washington University Law School, said the Voting Rights Act is “one of the few brakes on unbridled gerrymandering.” He noted the Supreme Court ruled in 2019 that redistricting can’t be challenged as overly partisan.
“If you take this away, we’re just going to see more of what’s already going on in Texas and in North Carolina,” he said.
Democratic voting rights groups estimate that gutting the Voting Rights Act’s protections against vote dilution could help Republicans win an additional 27 House seats − including 19 that would directly result from invalidating the law’s protections.
A decision in the consolidated cases of Louisiana v. Callais and Robinson v. Callais is expected by the end of June.
