The Supreme Court has just given itself a truly historic test: is it ready to take away much of the protection that federal law has long provided for racial minorities’ right to vote, because that is no longer needed?

At the center of two orders the Justices have issued in recent days is the future of the Voting Rights Act of 1965 – a law considered to be one of the greatest achievements of the modern civil rights movement.

A legal saga that has been running for three decades over Louisiana’s seats in the U.S. House of Representatives – including, now, the seat held by Speaker Mike Johnson – is entering a new and more consequential phase at the Court.  And a new dispute over a Native American tribe’s seats in the state legislature in North Dakota is just starting at the Court.

The two cases are not related, except that both involve the scope of the 1965 act’s provisions as they apply to redistricting of legislative bodies.  Going well beyond those two specific disputes, however, the cases raise these profound questions:

• In the Louisiana case: has enough progress been made toward racial equality that the state no longer needs to obey the 1965 voting rights law, especially its protection of equal opportunity for minorities to elect their preferred officials? The answer will also affect other Deep South states, and maybe some other states elsewhere in the nation.
• In the North Dakota case: can any individual voter or any civil rights group help enforce that law, or is that a task that only the U.S. Justice Department can perform? Since that Department has been take over by the Trump Administration, which is openly hostile to that law, will the law simply go unenforced?  (Since 1982, when Congress expanded the scope of the Voting Rights Act, 466 lawsuits have been filed under its main provision [Section 2] and only 18 of those were brought by the Justice Department.  All of the others were private lawsuits.)

Those two questions have been building toward tests in the Supreme Court for several years, with Justice Clarence Thomas repeatedly urging his colleagues to make a fresh start on their interpretation of the Voting Rights Act.  Indeed, almost from the time he became a Justice nearly 34 years ago, Thomas has been pushing the argument that Section 2 is probably unconstitutional because, he suggests, it fosters racially-driven decisions in election law cases.

Section 2 remains the most effective part of the 60-year-old act, because it is the last remaining part of the law that still functions.  In a major setback by the Supreme Court (in its 2013 decision in Shelby County v. Holder), the Court struck down a separate provision that required states with a past history of racial bias under their voting laws to get advance approval from the federal government before they could put into effect any new election law.

Because times have changed and race relations have improved in states covered by that duty, those states can no longer be singled out, the Court said in the Shelby County ruling.  The Louisiana redistricting case (State of Louisiana v. Callais) now involves an echo of that same argument against continued enforcement of Section 2.

While Section 2 applies all across the nation, claims of violations must be pursued one case at a time. The section outlaws any election law or practice that gives racial minority voters less than an equal chance to elect officials that they prefer.

Race thus is considered as part of a benign remedy for bias at the polls.  That is the concept the Court seems poised to reconsider.

The Louisiana redistricting case: the details

The future of Section 2, it now appears, may be settled by the way the Court decides the Louisiana case, which arises over election district maps drawn by the state legislature in 2024 for the state’s seven seats in the U.S. House.

Before 1983, only white candidates had won those congressional seats.  That year, a federal court created a black-majority district in the New Orleans area, to satisfy the equality demands of Section 2.

After the 2020 Census, a new challenge arose, leading to a court decision directing the legislature to create a second black-majority district – again, to satisfy Section 2.  The legislature did so, crafting new election district maps making sure there was another black district but also making sure to protect the seat of Rep. Mike Johnson, a Republican leader in the state’s House delegation, who later would be elected House Speaker.  The sponsor of the bill said at the time: “We all know why we’re here.  We were ordered to create a black district, and that’s what I’ve done.”

Once more, a lawsuit based on Section 2 was filed, this time arguing that the creation of the second black-majority district was an unconstitutional “racial gerrymander” – that is, creation of that district was done to assure that only a black person would win the seat, in direct violation of the Constitution.

That plan was then struck down by a federal court, and state officials took the case to the Supreme Court, arguing that the legislature had no choice but to obey the lower court order.  The Justices agreed last November to rule on that appeal, as well as a separate appeal by the NAACP defending the new district map.

In late March, the Justices held a hearing.  But, as the Court’s summer recess approached in late June, it chose not to decide the case; instead, it ordered a second hearing to be held in the term opening next October 6.  The order said, without explanation, that the Court might add new legal questions that lawyers would have to answer.

An explanation came on Friday, and it was a bold one.  Citing an argument that had been made in a legal brief by the challengers, that times had changed in the state, the Court announced that the new hearing would focus on whether creation of that second black district violated either the 14^th or 15^th Amendments to the Constitution.  (Those amendments are the constitutional commands for equality in a state’s laws.)  As if to stress the importance of this issue, it gave the lawyers permission to file longer briefs to make their points.

The signal the Court was sending is clear: if Section 2 requires a second black-majority district in today’s Louisiana, Section 2 must give way to the Constitution, and could be a dead letter, at least in that state.

Notably, Justice Thomas had made that very point when he filed a dissent from the Court’s order putting off the Louisiana case.   He wrote that he would decide the dispute now, and added: “I would make clear that where this Court’s interpretation of Section 2 breaches the Constitution’s equal protection guarantee, the Constitution controls.”

The legal brief to which the Justices’ postponement order pointed had argued explicitly that Section 2 no longer even applied in the state because voter data shows that black voters “today have an equal opportunity to participate in the political process and elect representatives of their choice….Section 2 imposes burdens on constitutional redistricting laws that cannot be justified by black Louisianans’ needs.”

That notion, a sort-of “we-don-t-discriminate-any-more” argument, might be open to any state that could credibly claim that it had become bias-free and thus cannot be ordered by a court to create any or any additional black-majority districts.

Why did the Supreme Court change its mind, and reach for that broader issue in the Louisiana case?  Justice Thomas almost certainly had a hand in fashioning the new question.  But it would have taken at least five votes for the Court to add a question.

A strong clue can be found by looking back at the lineup of the Justices two years ago when the Court decided the case of Allen v. Milligan.  That case, too, was about a Section 2 challenge to a House redistricting map, for Alabama.  The legislature there, after the 2020 Census, had refused to create a second black-majority district, even though concentrations of black voters would appear to have justified it.

That was the opposite of what had happened in Louisiana.  A federal court struck down the Alabama plan, finding that remaining with a single black district probably violated Section 2 by discriminating against black voters.

The Supreme Court, by a vote of 5-to-4, agreed that the Alabama map probably did violate Section 2.  Justice Thomas dissented, with his opinion joined in full by Justice Neil M. Gorsuch and in part by Justices Amy Coney Barrett and Samuel A. Alito, Jr.  Alito also wrote a dissenting opinion, which Gorsuch joined.

That made four votes to reopen the issue when it reached the Court again.  A fifth vote for a new look probably came from Justice Brett M. Kavanaugh, who had added his vote for most, but not all, of the majority opinion suggesting that Section 2 likely had been violated by the Alabama map. The main opinion was written by Chief Justice John G. Roberts, Jr., and was joined in full by Justices Ketanji Brown Jackson, Elena Kagan and Sonia Sotomayor.  The Roberts opinion generally broke no new ground, saying it was simply following past precedents.  Technically, it also was only a temporary ruling.

Notably, however, Kavanaugh wrote an opinion for only himself in the Alabama case, and he explicitly refused to support the part of the Roberts opinion in which Roberts had countered the dissenters’ points.  Further, Kavanaugh said he agreed with one point Thomas had made: that is, that drawing election maps that were based upon consideration of race, if ever allowed, should only be for a limited time and not “extend indefinitely into the future.”

That was a cautionary note that Kavanaugh had doubts.  And, when the new Louisiana case reached the Court, the challengers cited Kavanaugh’s point about time limits on remedies based on race under Section 2.

The lawyers’ new briefs on the point will be due before the new term opens; a date will be set for the new hearing after the next term opens.  The Court is in recess now.

The federal government’s position:  When the case was before the Court during its last term, the Biden Administration’s Justice Department took part in the case to argue that there was a good reason for having a second black-majority district drawn on the Louisiana maps.  When the Trump Administration came into office in January, however, it told the Court that it did not share that view.  It has the option of joining in the case to offer its current view, but it has not yet done so.

The North Dakota redistricting case: the details

This is a separate case but it, too, involves Section 2 of the 1965 Voting Rights Act.  The Supreme Court has not yet granted review, but it hinted last month that it is very interested in the question it raises and that it expects an appeal to reach it soon.  A final decision by the Justices settling who may enforce the act will have an impact across the nation, and could change the basic nature of voting rights for minorities, including Native Americans.

This case involves the Turtle Mountain Band of Chippewa Indians, sometimes referred to as the Spirit Lake Tribe.  Its members live mainly on a reservation in North Dakota, near the Canadian border.  Its reservation is in the small town of Belcourt.  The voting rights of its members are protected by the 1965 law because they are considered to be a racial minority; they also are protected as a community as a “language minority” under a 1975 addition to the voting law.

For years, the tribe has fought to protect its members’ right to vote, and it argues that discrimination continues even today.  After the 2020 Census, the North Dakota state legislature drew new election district maps for seats in its two chambers.

Previously, the tribe had an elected state senator and two state representatives.  Under the new map, tribal members were moved in and out of new districts, with the result that the Native American senator and one of the Native American representatives lost their seats in November 2022 elections using that map.  Only one of their representatives won election that year.

The tribe had gone to federal court to challenge the map early in 2022, claiming that the new districts violated tribal members’ rights under Section 2.  A federal trial judge ruled that the tribe had a right to sue, and went on to rule that Section 2 had been violated.  The judge ordered creation of a new map more favorable to tribal candidates, but that never happened because the state appealed.

In that appeal, state officials contended that the 1965 law could not be enforced through lawsuits by private individuals, the tribe, or any civic organizations.  Neither Section 2 itself nor an 1871 civil rights law allowing lawsuits to protect constitutional rights created a right to sue, the officials contended.  Only the Justice Department in Washington, the state insisted, could enforce Section 2.

That same argument had been made earlier to that appeals court, in a case from Arkansas, and was successful. That case ended without going on to the Supreme Court in Washington.  State officials then relied on that precedent in the North Dakota case, and won.

As of now, the maps used in the 2022 election are scheduled to be used again in 2026, unless the tribe wins its coming appeal to the Supreme Court.

On July 15, the tribe asked the Supreme Court to put the appeals court decision on hold, contending that time was running out for state officials to begin preparations for next year’s elections.  Their legal papers argued that there is a clear conflict among federal courts on whether private lawsuits are allowed to enforce Section 2.

Among other arguments the tribe’s lawyers are making is that Justices of the Supreme Court have been making statements at least since 1969 that private enforcement of the voting rights law have been allowed, and they note that more than 400 such lawsuits have been allowed to go forward.

On July 24, the Supreme Court, in a one-page order, blocked the appeals court decision from going into effect.  The order, expecting the tribe to file a formal appeal, specified that the postponement will remain in place until the Supreme Court finished any further review.

The three Justices who have most often voted to narrow voting rights dissented from the order: Alito, Gorsuch and Thomas.

Presumably, the case will move forward fairly early in the Court’s next term, with a final decision likely by next summer.