Broadening a trend it started a generation ago, the Supreme Court on Wednesday took away much of the power remaining in Congress and lower federal courts to assure black and Latino voters of their chances of electing candidates to seats in the U.S. House of Representatives and state and local legislative bodies.
Because the 6-to-3 ruling was based on what the Constitution allows in laws that take race into account in drawing new election district maps, no federal, state or local legislative body could get around the new ruling by passing a new law – that is, unless there were a constitutional amendment, or the Court itself were to change its constitutional view in the future.
This result appeared to be the most serious loss yet for minority voting rights that Congress had sought to protect by enacting a series of historic laws in the 1960s and 1970s, attempting to end decades of “Jim Crow” laws aimed at minority voters, especially in the South but not only there.
The decision produced a new interpretation of a key section of the Voting Rights Act of 1965, when that provision is used to protect minorities’ rights as new election districts are drawn by state legislatures, for seats in Congress and other lawmaking bodies.
Election law experts, reacting immediately to the decision, predicted that it may lead to the loss of as many as a dozen House of Representatives seats, now held by Democratic officeholders representing districts that are strongholds of minorities – from Texas to Florida, across the South.
Republicans could use the new ruling to challenge those districts as unconstitutional “racial gerrymanders” – that is, districts drawn by computer-driven sorting of voters based actually on voters’ race but covered up by sorting according to party affiliation. There is usually a close link between minority voters and Democratic party ties, so partisan sorting usually can lead to definite racial outcomes.
Wednesday’s ruling struck down a new map drawn by the Louisiana state legislature for electing the state’s six members of the U.S. House of Representatives. The legislature acted under pressure from a lower federal court that was seeking to enhance the power of black voters in congressional elections.
Black voters make up about a third of the voting population in that state, but they previously could control the outcome in only one district where they were in a majority. The federal court said the Voting Rights Act required a second such district, and the legislature obeyed. The new map was struck down by another lower court as an invalid “racial gerrymander” – that is, drawing election boundaries according to race.
Agreeing with that result, the Supreme Court majority nullified the new map, which means Louisiana will again have a single black House district, when the new ruling actually is put into effect. The main opinion declared that the 1965 Voting Rights Act does not provide a valid reason for using racial patterns in drawing election maps, when there is no proof that racial discrimination had been explicitly intended by those who drew the map.
Without solid evidence that a map was drawn along racial lines, the Voting Rights Act did not justify creating another such district, according to the ruling. The reality, though, is that proof of explicit racial motivation has always been difficult to find because legislators do not express it outright.
The Court majority contended that it was attempting to “disentangle race from politics,” deciding that it had to impose a strict standard of proof when a new districting map is challenged under federal voting rights law mandates.
In the majority’s 36 pages of analysis, it made two points in its legal reasoning: what the 1965 law required from those challenging a new districting map, and what the Constitution itself – specifically, the Fifteenth Amendment — allowed Congress to do when enacting a voting rights law.
On the first, it said changes in Louisiana racial and political history in modern times had given the South a two-party system and so the Voting Rights Act had to be given a new scope to deal with that. That was the rationale for demanding harder proof of racial bias in new district mapping.
That revision, it said, was “the best reading” of what the Act could do and still not violate the demand of the Fifteenth Amendment of racial equality in voting. That Amendment, ratified in 1870, after the Civil War, forbids denial or weakening of voting rights based on race. The Voting Rights Act, the Court said Wednesday, cannot “exceed Congress’s authority under the Fifteenth Amendment.”
The opinion added that “the Court has long held that the Fifteenth Amendment bars only state action ‘motivated by discriminatory purpose.’” (The Court first interpreted the Amendment that way in a 1976 decision, Washington v. Davis. Under that constitutional view, it is not enough that government action will have a more negative impact on minorities.” It is intention, not impact, that counts, under that approach.)
The part of the 1965 Act at issue in the new ruling is its Section 2. That provision imposes a nationwide ban on any voting law or practice that denies or narrows the right to vote based on race. In a ruling in 1980, in the case of City of Mobile v. Bolden, the Court ruled that Section 2 would be violated only if an election provision was based explicitly on racial bias.
Congress, however, changed Section 2 in 1982, making clear that it would be a violation if a voting law only had a more negative impact, or effect, on minority voters. That is the way Section 2 has been applied since then. And that is what the challengers claimed when Louisiana had only one black-majority congressional district.
Wednesday’s new interpretation, however, specified that Section 2 could only be violated if there was explicit proof of racial intent, in order to make it conform to the Fifteenth Amendment.
Section 2 was the last key part of the 1965 Act that remained intact after several prior Supreme Court rulings – beginning in 2013 — had narrowed down the scope of other important sections.
Justice Samuel A. Alito, Jr., one of the Court’s more conservative members and a leader in prior efforts to limit the 1965 law, wrote the majority opinion on Wednesday. The ruling was supported by Chief Justice John G. Roberts, Jr. – another leading critic of that Act – and by Justices Amy Coney Barrett, Neil M. Gorsuch, Brett M. Cavanaugh and Clarence Thomas. (While Gorsuch and Thomas fully supported the ruling, they said in a short, separate opinion that the Court should have ruled that Section 2 does not apply at all to redistricting laws. That opinion drew no support from other Justices.)
Justice Elena Kagan, in one of the most scalding dissenting opinions she has written in her 16 years on the bench, argued that the ruling would have “far-reaching and grave consequences” because it “renders Section 2 all but a dead letter.” Minority voters, she said, can now be excluded “from the electoral process.”
The 48-page dissenting opinion by the liberal Kagan was joined in full by her two liberal colleagues, Justices Ketanji Brown Jackson and Sonia Sotomayor. Among the arguments the dissenting opinion made was that a majority of the Court, “for over a decade has had its sights set on the Voting Rights Act” and, on Wednesday, the majority had scuttled “the last piece – Section 2.”
Justice Alito’s opinion for the majority did not attempt to answer at length the criticisms leveled by the dissenting Justices. On a single page, Alito basically answered Kagan by suggesting it was she who had failed to follow the Court’s precedents. “Respect for precedent cannot be a one-way street,” Alito wrote.
The Court is now expected to move on to a remaining question about Section 2 of the 1965 Act: may individual voters and their organizations sue to enforce that section, or is it enforceable only by the U.S. Justice Department. The Court has on its docket, awaiting Wednesday’s outcome, a case in which a lower federal court had ruled that only the Justice Department can act under Section 2. There is a split among lower courts on that issue – a situation that often leads the Supreme Court to get involved.
The Court has been holding since November, without action, the case of Turtle Mountain Band of Chippewa Indians v. Howe. It is an appeal by a Native American tribe in North Dakota and tribal members who lost their seats in a new districting map, but regained them in the 2024 election under a court-drawn map based upon a finding that the map violated Section 2.
A federal appeals court, however, ruled that only the Justice Department could enforce Section 2, nullifying the court plan and ending the claim of the tribe and its members.
The Supreme Court has the option now of taking on the legal question itself, or sending the case back to the lower courts to apply Wednesday’s new interpretation of Section 2’s meaning.
