For over a decade, no enemy has loomed larger to the Roberts Court than voting protections, especially those for minority groups who have historically been kept away from the polls with laws and violence.
The Court in recent years has raised tests for discrimination to unreachable heights, required voters to employ their own mapmakers, put the responsibility for fixes in the hands of a Congress it knows won’t act, claimed that racism has all but ended anyway.
The groups that fight voter suppression have, under duress, become agile and creative, digging up old statutes under which to challenge voting restrictions when the Court defangs old ones. But that dance became more frantic last June, when the Court ordered that a garden variety case about racial discrimination in Louisiana’s maps be held over to the next term, and posed its own question, one that the litigants were not asking it to decide: Does Section 2 of the Voting Rights Act, one of the only potent remaining parts of the law the Court hasn’t yet hobbled, violate the 14th or 15th Amendments?
The question is almost offensive, that the crown jewel of the Civil Rights movement could violate the Reconstruction Amendments, all bent towards undergirding the embattled rights of Black Americans. But for voting rights advocates, it suggested that the long accumulating storm clouds are set to burst — that the Court is finally ready to fatally weaken or eliminate Section 2, the part of the law used to challenge racially discriminatory gerrymanders. A decision is expected in the coming months.
As they prepare for the blow, groups have mapped out every avenue the Court may go, all knowing that the right-wing majority is unlikely to preserve Section 2 as it is. Section 2, among other things, forbids voting practices which result “in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color.” Advocates have used it routinely when states “crack and pack” minority voters to lessen their vote share by cramming them all into one district or diluting them over many majority-white districts.
The decision could take many forms. A more positive outcome could look like a ruling against the remedies — forbidding judges to order the drawing of additional districts where minority voters compose a majority. Such a decision would leave room for other fixes that could still give minority voters more power in picking the candidate of their choice.
It’d be harder to get around a ruling requiring a new test to prove minority vote dilution. Advocates pointed to Brnovich v. Democratic National Committee, in which Justice Samuel Alito wrote a majority opinion severely narrowing how Section 2 can be used against voter restrictions. One voting rights lawyer told TPM that no one has won a Section 2 vote denial case since Brnovich, and that the Court could hand down a similarly impossible test for racial gerrymanders that makes Section 2 “dead letter.”
Working in the voting rights space means preparing for the worst: that the Court invalidates Section 2 entirely, finding it unconstitutional. Should the Court invalidate Section 2 in full, it would all but end the fight against racial gerrymandering on the federal level.
Litigants have tried in the past to challenge maps under the 14th Amendment’s Equal Protection clause as an alternative to Section 2, but it requires proving that legislators intentionally discriminated when they drew their maps, which is extremely difficult to do. The challenge of proving that a map is a racial gerrymander, and not merely a partisan one, is due to a) etiquette reasons — judges aren’t fond of labeling legislators racists — b) logistical ones — courts have made it increasingly difficult for plaintiffs to overcome lawmaker immunity to obtain emails and records — and c) American ones — in many parts of the country, race and partisan lean are intertwined, making proving just one without the other very difficult.
In fact, these hurdles are why Congress amended Section 2 in 1982 so that plaintiffs only had to prove that a map had discriminatory effects, not intent. (John Roberts, then working for the Reagan administration, spearheaded the effort to prevent the ‘82 amendments from passing.)
“It’s going to be a challenge to bring federal claims,” Caren Short, director of legal and research for the League of Women Voters, admitted. “Not impossible, but a challenge.”
The Battle Shifts to the States
With federal courts all but shuttered following some of the worse-case-scenario Supreme Court rulings, the fight would shift to the states. Voting rights groups have been a step ahead there, leading the movement to get the states to pass their own Voting Rights Acts. So far, nine states (all blue) have passed them.
These laws are new, and being tested in court for the first time.
They’re not a surefire solution — if the Supreme Court invalidates Section 2 on constitutional grounds, it’s hard to see how the state versions won’t run afoul of the same supposed problem. And the Republican forces that have been attacking the federal Voting Rights Act for decades are likely to come after the state versions with equal verve.
Some states are also attempting other avenues, including using clauses of their constitutions that protect voting to go after gerrymanders. A case challenging a district on those grounds in New York has already reached the Supreme Court.
The Long Game
It’s a sign of how bleak the landscape is for voting rights that every major litigator TPM interviewed pointed to the distant future: 2028, and a possible Democratic trifecta, as the best hope for salvaging the United States’ multiracial democracy.
“We are still working on and moving towards legislation, continuing to perfect and change it based on the realities,” Virginia Kase Solomón, president and CEO of Common Cause, told TPM. “When the time comes, that legislation is ready to go on day one — both the John R. Lewis Voting Rights Advancement Act and For the People Act will be HR1 and HR2,” she added, referring to two pieces of voting rights legislation that did not become law under the last Democratic trifecta due to former Sens. Joe Manchin (D-WV) and Kyrsten Sinema (D-AZ) upholding the Senate filibuster.
Even that legislation may have to be overhauled, depending on where the Court comes down on Callais.
The only lasting solution could push Democrats to a place they’re currently afraid to go: Supreme Court reform itself. Rather than waiting a generation until enough pieces of the right-wing supermajority retire or die, securing voting rights for all Americans might demand Court expansion, enough justices to reverse a maximalist Callais decision, to end the Roberts Court’s crusade.
