Outside the Beltway

End of the Voting Rights Act?

SCOTUS appears ready to supercharge gerrymandering.

James Joyner · Thursday, October 16, 2025 · 8 comments

NPR’s Nina Totenberg (“Supreme Court seems poised to further undercut the Voting Rights Act“):

The Supreme Court on Wednesday seemed headed for another ruling that undercuts the landmark 1965 Voting Rights Act.

Once considered the jewel in the crown of the civil rights movement, the Voting Rights Act has been largely dismembered since 2013 by the increasingly conservative Supreme Court. The major exception was a decision just two years ago that upheld the section of the law aimed at ensuring that minority voters are not shut out of the process of drawing new congressional district lines.

But on Wednesday, Chief Justice John Roberts, who wrote that decision, downplayed the importance of the ruling, suggesting he didn’t see it as controlling the outcome in Wednesday’s case.

At issue in the more than two hours of arguments before the court was the redistricting map drawn by the Louisiana legislature after the decennial census. Following years of litigation, the state, with a 30% Black population, first fought and then finally agreed to draw a second majority-Black district. Two of the state’s six House members are African American.

The argument is a familiar one: is a disparate racial outcome flowing from an attempt to create partisan advantage (which SCOTUS says is a permissible aim) racial discrimination (which is clearly prohibited by the Equal Protection Clause of the 14th Amendment) or a mere spillover effect?

The court’s liberal justices pointed out that the federal law is based on the effects of redistricting in a state like Louisiana where, as they noted, voters are so racially polarized that even white Democrats for the most part don’t vote for Black candidates. But the court’s conservatives seemed to have a different view. Justice Samuel Alito, for instance, said that seeking a partisan advantage is not the same thing as seeking a racial advantage.

That’s not so, replied lawyer Janai Nelson, of the NAACP Legal Defense Fund. If race is used to gain partisan advantage, she maintained, that is unconstitutional.

“The extremely racially polarized voting that we have in Louisiana cannot be explained away by party,” she said. “We’re talking about racially polarized voting that is above 84%.” That would essentially mean that all but 16% of white voters do not vote for Black candidates.

Justice Brett Kavanaugh, who cast the decisive fifth vote in a similar case from Alabama two years ago, reiterated his view that there should be an end point to racial remedies like this one.

“This court’s cases in a variety of contexts have said that race-based remedies are permissible for a period of time … but they should not be indefinite,” he said on Wednesday.

But Nelson replied that while many provisions of the voting rights law did have time limits, Congress deliberately refused to put a time limit on this provision. What’s more, she said, the non-discrimination element of the Fifteenth Amendment to the Constitution, which gives Congress the power to enforce the right to vote, also has no time limit.

This is always the nub: is discriminating on the basis of race to balance the effects of past racial discrimination itself racial discrimination?

Justice Elena Kagan asked Nelson what the results would be if the court were to nullify or otherwise limit the redistricting provision of the federal law.

“I think it would be pretty catastrophic,” replied Nelson, noting that the African American House members elected across the deep South had won their seats because of the federal law that forced creation of majority-minority districts.

NYT chief political analyst Nate Cohn (“The Supreme Court Case That Could Hand the House to Republicans“) looks at just how catastrophic the effects could be.

Republicans have been redrawing congressional districts this year at President Trump’s behest, but so far it hasn’t seemed to be enough to deny Democrats a reasonable path to control of the House of Representatives.

That might change if the Supreme Court strikes down Section 2 of the 1965 Voting Rights Act in Louisiana v. Callais, a case the court heard Wednesday.

Without Section 2, which has been interpreted to require the creation of majority-minority districts, Republicans could eliminate upward of a dozen Democratic-held districts across the South.

Republicans may not eliminate every Democratic-leaning district that they technically could (more on why later), but the party’s aggressive mid-cycle redistricting suggests they would eliminate enough to obtain a significant structural advantage. It’s not clear whether this would occur by next year’s midterm elections, with a court ruling likely next summer, but the new seats would eventually be enough to make Republicans favored to win the House even if they lost the popular vote by a wide margin.

With those new seats added to the ones Republicans already seem poised to gain, the House would not be competitive in most election years.

Given that we’ve been essentially a 50-50 nation the last decade-plus, stacking the deck to make it nearly impossible for Democrats to win is obviously wildly undemocratic. But Section 2 has been living on borrowed time for decades, with conservative and even moderate Justices being skeptical of race-conscious remedies going back at least as far as the Bakke decision in 1978. Case after case since then, at least as recently as 2023’s Students v Harvard, have held that the Equal Protection Clause prohibits race-based discrimination, even if intended to remedy the ongoing effects of past discrimination.

The creation of “majority minority” districts, first done during the 1990 redistricting cycle, always struck me as problematic. I so happened to move to Alabama’s newly created 7th Congressional District to start graduate school in 1992. It was created by connecting the Blackest parts of Tuscaloosa with the Blackest parts of Birmingham, which was just bizarre. But it had the desired impact of essentially guaranteeing Alabama would have a Black Congressman for the first time since the Reconstruction era. It also had the probably unintended consequence of “bleaching” the other six districts, virtually guaranteeing they would be represented not only by White Congressmen but by White Republicans.

Regardless, assuming the ruling goes as predicted and Section 2 is either ruled unconstitutional or significantly neutered, it will remove the last remaining barrier to hyper-gerrymandering.

Despite all the gerrymandering by both political parties in recent years, neither has been able to obtain a significant structural advantage in the House so far this decade. In two very close elections, the party that won the most votes won the most seats. That’s partly because each side’s gerrymanders canceled the other’s out, but it’s also because the two major legal limitations on gerrymandering — state redistricting laws and Section 2 — have also canceled each other out.

While state laws restricting gerrymandering have mostly been enacted by Democrats in blue and purple states, Section 2 is the main legal limitation on gerrymandering in many red states, particularly in the South. It bans voting practices that discriminate based on race, which has been interpreted to require the creation of majority-minority districts in areas with racially polarized voting and where minority groups represent a majority of the population. Without Section 2, many state legislatures would be free to eliminate majority-minority congressional districts, which mostly vote Democratic.

It’s hard to say exactly how many districts Republicans would eliminate if Section 2 falls. It’s also hard to say whether Republicans would be able to eliminate those districts before next year’s midterms; the Supreme Court’s decision is likely to come after many state primaries. The full fallout from the decision might not come until 2028 or even after the next census in 2030.

But even on the lower end of the estimate, Republicans will probably eliminate around a half-dozen districts: the majority Black districts in otherwise overwhelmingly Republican states and regions of the Deep South. In these reliably red states, Republicans could eliminate every Democratic-held majority-minority district while ensuring that the new districts remain relatively compact and overwhelmingly Republican.

If that happens, I fully expect Blue states to repeal their requirements for redistricting commissions. Unilateral disarmament is just a bad practice.