The Voting Rights Act, now just one year shy of its 60th anniversary, has served an indispensable role in safeguarding communities of color from racially discriminatory election systems, voting laws, and district maps. Its guarantees of equal electoral opportunity continue to be as necessary as ever. In 2013, the Supreme Court’s decision in Shelby County v. Holder gutted Section 5 of the law, which had required jurisdictions with a history of racial discrimination to obtain approval for any changes to their voting policies and practices from the Department of Justice or a federal court. The ruling erased decades of progress that had been made to diminish the participation gap between white and minority voters. Despite this stark backsliding, Congress has yet to mount an effective response.
In the meantime, the Supreme Court’s attack on Section 2 of the Voting Rights Act — which allows people to sue to undo discriminatory practices in voting and representation — has only intensified. With Brnovich v. Democratic National Committee in 2021, the Court made it much harder to mount successful Section 2 challenges against discriminatory voting rules. Ongoing Section 2 litigation over discriminatory district maps is testing the Court’s duty to guard the Constitution’s commitment to equal representation.
There is a notable exception to the Roberts Court’s hostility to the Voting Rights Act. In 2022, a Section 2 challenge brought by Black voters to Alabama’s congressional map reached the Supreme Court in a case now known as Allen v. Milligan. The lawsuit argued that the map diluted Black voting power by placing a large majority of Black voters into one voting district and dividing smaller clusters of Black voters among multiple districts. The lower court determined that Alabama’s map was substantially likely to violate Section 2 and ordered the state legislature to create a second Black opportunity district in time for the 2022 midterm elections. But the Supreme Court stepped in, putting a pause on the lower court’s ruling until it had a chance to hear the case.
Many voting rights advocates worried that the Supreme Court would accept Alabama’s invitation to roll back or altogether strike down Section 2 protections. But in June 2023, the Court surprisingly delivered the plaintiffs a victory. In a 5–4 opinion, the justices upheld the lower court’s finding that Alabama illegally diluted the electoral power of Black voters and forcefully rejected the state’s attempt to strike down or scale back the law. The ruling unambiguously reaffirmed the legal framework that has guided courts in Section 2 cases for almost 40 years.
Allen is unquestionably an important victory for multiracial democracy and an affirmation that Section 2 remains a tool for challenging discriminatory voting districts and election systems. But it is both telling and troubling that voting rights advocates interpreted the Supreme Court’s unwillingness to disrupt 40 years of settled law as a win. Worse still, the decision has failed to deter state and local governments from advancing radical and unprecedented attacks on voting rights protections for voters of color.
Constitutional Attacks on Section 2
Despite rejecting Alabama’s arguments in Allen, Justice Brett Kavanaugh wrote a concurring opinion in which he signaled openness to considering the argument that the Constitution might prevent Section 2’s race-conscious redistricting scheme from extending “indefinitely into the future.” Just a few weeks later, in Students for Fair Admissions, Inc. v. President & Fellows of Harvard College, the conversative members of the Court concluded that race-conscious admissions processes at universities violate the Equal Protection Clause of the Fourteenth Amendment. Mirroring the language in his Allen concurrence, Justice Kavanaugh wrote an opinion in Students for Fair Admissions highlighting his disagreement with the proposition that “race-based affirmative action in higher education may extend indefinitely into the future.”
Section 2 defendants immediately seized on Kavanaugh’s suggestion of a temporal limitation. Louisiana led the field, asking the Fifth Circuit Court of Appeals to consider the “temporal argument” that Section 2 could no longer be constitutionally applied to require a second minority opportunity congressional district. The court ultimately concluded that the state’s map likely violated Section 2. Georgia and other states have followed Louisiana’s example, arguing in other cases that a “race-based” remedy for the dilution of minority votes is no longer justified under the Constitution.
Although no court has yet to rule that Section 2 is unconstitutional, several cases where the argument has been raised remain pending. Meanwhile, white voters brought a collateral constitutional challenge to the map that the Louisiana legislature enacted in response to the Fifth Circuit Court of Appeal’s ruling, opening another avenue for chipping away at Section 2 that is now at the Supreme Court’s doorstep.
Closing the Courthouse Doors to Private Plaintiffs
Another effort to hobble enforcement of the Voting Rights Act comes in the form of a widespread attack on private plaintiffs’ ability to bring claims under Section 2 and other provisions of the law. Lawsuits by voters and community groups who represent them have been a hallmark of Section 2 since its enactment in 1965. Federal courts have adjudicated hundreds of Section 2 claims brought by private parties without questioning whether those cases were authorized under the statute. The most recent of these, of course, was Allen v. Milligan.
Yet in a single paragraph concurrence in Brnovich, Justice Neil Gorsuch (joined by Justice Clarence Thomas) suggested that whether Section 2 allows for private enforcement was “an open question.” Since then, defendants in Section 2 cases have flooded lower courts with the ahistorical argument that private parties cannot bring claims under the statute. Though most courts have soundly rejected that argument, the Eighth Circuit Court of Appeals adopted this radical rewriting of the Voting Rights Act in Arkansas State Conference of the NAACP v. Arkansas Board of Apportionment. Defendants in Section 2 cases across the country — including Alabama, Georgia, Louisiana, North Carolina, Mississippi, Ohio, and Pennsylvania — have pressed courts to adopt the Eighth Circuit’s reasoning and dismiss Section 2 claims brought by private parties.
Raising the Bar on Claims
Defendants in pending Section 2 cases also seek to raise the bar on what plaintiffs must prove to establish a violation. Such attempts to move the goal posts may seem less extreme than calling the constitutionality of the Voting Rights Act into question or seeking to shut the courthouse door on private plaintiffs. But functionally, these arguments ask courts to rewrite the statutory text of Section 2 and to ignore decades of judicial precedent and congressional intent and hollow out antidiscrimination safeguards.
Take, for instance, an argument that Georgia is making in the Eleventh Circuit. In Alpha Phi Alpha Fraternity v. Secretary of State of Georgia, the trial court found that the plaintiffs established that white voters systemically oppose Black-preferred candidates for office. Georgia appealed this finding, arguing that the plaintiffs failed to demonstrate that white voters intended to vote along racial lines or that race was the exclusive explanation for the racial polarization in elections.
This argument asks the appellate court to ignore decades of precedent and congressional intent and rewrite Section 2. In fact, Congress amended the statute in 1982 specifically to ensure that voters of color could challenge district maps, voting rules, and other election policies that produce systemic discriminatory results without having to prove intent. Georgia’s argument is a thinly veiled effort to revive the intent requirement that Congress rejected. Other defendants, including Alabama in Allen, have made similar attempts.
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In Allen, the Supreme Court departed from its recent tendency to scale back or even wholly eliminate voting rights protections. Whether this departure is temporary is yet to be seen. It is clear, however, that the Court has failed to deter state and local governments from advancing unprecedented arguments that threaten what remains of the Voting Rights Act. The fate of Section 2 after the dust settles on pending litigation is uncertain. Even if the Court rejects these arguments, however, the critical work to revitalize voting rights protections runs through federal legislation. Fifty-nine years later, in order to restore the safeguards of the Voting Rights Act guaranteed under Section 2 and Section 5, Congress must pass the John R. Lewis Voting Rights Advancement Act.
