A Devastating Decision for Voting Rights

The Callais decision is partisan politics on the Supreme Court at its worst.

The Supreme Court’s Wednesday ruling in Louisiana v. Callais will come to be regarded as part of a Hall of Shame of devastating decisions for civil rights. That Hall of Shame includes cases such as Dred Scott v. Sanford, Plessy v. Ferguson, Korematsu v. United States, and Shelby County v. Holder. It is truly that bad in its nullifying one of the most important civil rights statutes ever enacted, the Voting Rights Act of 1965, and it will lead to a dramatic decrease in political representation for people of color.

Although the Fifteenth Amendment, adopted in 1870, prohibited denying the right to vote on account of race, Southern states used a myriad of techniques to keep people of color from registering to vote and from voting. In 1964, only 6.7 percent of eligible Black individuals were registered to vote in Mississippi; only 20 percent were registered in Alabama. Across the South only 43 percent of eligible Black voters were registered.

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The Voting Rights Act was enacted to finally change this. The two most important provisions were Section 2 and Section 5. Section 2 said that state and local governments could not have election systems or practices that discriminated against voters of color. In 1982, Congress amended this to make clear that proof of a racially discriminatory impact would be sufficient to establish a violation of the law. The reality is that it is very difficult to prove that the government acted with a racially discriminatory intent; rarely will legislators express a racial motivation.

But Congress knew that simply prohibiting race discrimination in voting would not be enough. Litigation takes time and states, especially Southern states, were constantly finding new ways of disenfranchising voters of color. Section 5 of the Voting Rights Act was a preventative mechanism: It requires that jurisdictions with a history of racial discrimination in voting obtain preapproval from the attorney general before changing their election systems.

The Voting Rights Act was enormously successful in dramatically increasing registration and voting among voters of color, as well as significantly increasing the number of people of color elected to political office. Now, though, the Supreme Court has gutted both Section 2 and Section 5 of the Voting Rights Act, and the impact on voting equality will be enormous.

Section 5 was effectively nullified by the Supreme Court in Shelby County v. Holder (2013). The court, in a 5-4 decision, held that it was unconstitutional for Congress to require only some jurisdictions to obtain preclearance before changing their election systems. Chief Justice John G. Roberts Jr. said this violated the principle of “equal sovereignty.” No such principle is stated in the Constitution. It is laughable for originalist justices to find it there because the same Congress that voted for the Fourteenth Amendment also passed the Reconstruction Act, which created military rule over rebel states. Prior to Shelby County, the attorney general denied preclearance hundreds of times to changes in election systems that were racially discriminatory. Since 2013, no jurisdiction has needed to obtain preclearance, and many changes that had been blocked as discriminatory have been put into effect.

But, in Shelby County, the court offered the reassurance that Section 2 of the Voting Rights Act still prohibited racial discrimination in voting. Practically speaking, Section 2 is largely going to be meaningless after Wednesday’s decision in Louisiana v. Callais.

After the 2020 census, Louisiana, like almost every state, redrew its congressional districts. Under the new map, one district of six had a majority-Black population. Black individuals comprise about a third of Louisiana’s population. A three-judge federal district court found this disadvantaged Black voters, violatingd Section 2 .

In response, the Louisiana legislature in 2024 adopted new congressional districts, with two of six having majority Black residents. A group of individuals who identified themselves as non-minority voters brought a challenge, contending that Louisiana had violated equal protection. In prior decisions, such as Shaw v. Reno (1993) and Miller v. Johnson (1995), the court held that the government cannot use race as a predominant factor in drawing election districts unless it meets strict scrutiny. Applying these cases, the district court ruled in favor of the plaintiffs, finding that Louisiana violated equal protection in creating two majority-Black districts.

The Supreme Court agreed — in a way that is devastating for Section 2. Justice Samuel A. Alito, writing for the majority, said that complying with Section 2 is not sufficient to justify consideration of race in districting unless there is proof that the government acted with a racially discriminatory intent. The court said that avoiding a racially discriminatory effect, which would be a violation of Section 2, does not justify allowing consideration of race. In dissent, Justice Elena Kagan explained that the effect of this is that those challenging state and local elections systems as discriminatory “will have to show, as well, race-based motive. Now, as then, that requirement will make success in their suits nearly impossible.”

The court went even further and said that so long as the government can point to another basis for its districting, such as helping one political party over the other, there would be no violation of Section 2 of the Voting Rights Act. There is a strong correlation between race and political party affiliation, especially for Black voters who overwhelmingly are Democrats. Any time a state wants to discriminate, it can say that its action was based on partisanship and be immune from challenge. This is why the decision, as Kagan said, will “eviscerate” Section 2 of the Voting Rights Act. She explained that the court’s ruling “will effectively insulate any practice, including any districting scheme, said by a State to have any race-neutral justification.... Assuming the State has left behind no smoking-gun evidence of a race-based motive (an almost fanciful prospect), Section 2 will play no role.”

The court’s majority was untroubled by this. It said, as it did in Shelby over a decade earlier, that “things have changed dramatically” in the South “in the decades since the passage of the Voting Rights Act.” But the court declaring victory over racism cannot eliminate the reality of continuing pervasive discrimination in voting.

The practical effect of the court’s ruling will be enormous. Especially in the South, but in Northern states as well, legislatures drew districts that had a majority of voters of color to prevent racially discriminatory impacts. This led to far more individuals of color being elected to public office. But now state legislatures can redraw their maps to eliminate these districts. They can engage in partisan gerrymandering with impunity even when it effectively eliminates representation for people of color.

We will see red states doing this as fast as they can, including trying to do so for the November elections. Districts that are comprised of a majority of voters of color are overwhelmingly Democratic. This will eliminate many previously Democratic congressional districts, perhaps ensuring Republican control of the House of Representatives, and solidify Republican control of red-state legislatures.

The conservative justices on the Supreme Court know that the Voting Rights Act, in protecting voters of color, overall helped Democrats. Their gutting it in Shelby County v. Holder and Louisiana v. Callais is partisan politics on the Supreme Court at its worst. They have ended the protections of a civil rights law that was a century overdue. They should be ashamed.

Erwin Chemerinsky is dean and Jesse H. Choper Distinguished Professor of Law at the University of California Berkeley School of Law.

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