The Voting Rights Act

The U.S. Supreme Court, once again, has shown that it is a court in name only. As it demonstrated in its recent ruling in Louisiana v. Callais, the conservative majority that makes up the Roberts court is a group of hardcore partisans more than willing to overrule the considered decisions of Congress when it suits the interests of the Republican Party.
In a 6-3 decision written by Justice Samuel Alito and joined by every member of the conservative bloc, the court rewrote the framework courts have used for 40 years to evaluate claims of racial vote dilution, or gerrymandering, in the South. The ruling guts the principal remaining enforcement mechanism of the Voting Rights Act of 1965 — the law that, at enormous cost and sacrifice, finally made the promise of the Fifteenth Amendment real for millions of Black Americans. The majority calls what it has done an “update.” Justice Elena Kagan, joined by justices Sonia Sotomayor and Ketanji Brown Jackson, calls it what it is in a powerful dissent: demolition.
Facts on the ground have already proven Kagan right. Indeed, the decision immediately unleashed a mad rush in states like Louisiana, Tennessee, and Alabama to redistrict to take away the ability of Black voters in their states to have their votes truly count, by dividing up communities of color and attaching them to unrelated rural territory full of White voters. The gerrymandering is expected to create at least another 10-15 Republican-leaning districts across the South and sharply reduce the number of Black members of Congress from the region. Republicans, who are terrified of a potential electoral blowout this November, had been desperately hoping the Supreme Court would clear the way for this hijacking of Black political influence in the South. The hyper-partisan high court, predictably, delivered just in time.
The history here is worth recalling. Congress enacted the original Voting Rights Act in response to nearly a century of systematic disfranchisement — as southern states sought to nullify the rights guaranteed in the Fifteenth Amendment. Even after passage of the law, southern states tried other means, like racial gerrymandering, to limit Black political influence.
When the Supreme Court ruled in 1980, in Mobile v. Bolden, that Section 2 of that law required plaintiffs to prove discriminatory intent rather than simply discriminatory effect to overturn racial gerrymandering, Congress responded swiftly and decisively. Proving intent, as members of Congress well knew, is nearly impossible in such cases, which is why in 1982, with overwhelming bipartisan majorities in both chambers, Congress amended Section 2 to make clear that plaintiffs challenging racial gerrymandering need only prove that it had the effect of limiting Black voting power. They didn’t have to read the minds of lawmakers who initiated such tactics.
Now, thanks to the Roberts court, they not only have to read minds, they’ll need hard evidence of what lawmakers are actually thinking. Good luck with that.
The court majority dresses its ruling in the language of social progress — claiming things have “changed dramatically” since the Voting Rights Act was passed. Black voter registration is up, minority candidates have won office in greater numbers. These are real gains. But Kagan points out the obvious: Those gains occurred because of the Voting Rights Act. And as we’ve already seen, Republicans in the South are wasting no time in their efforts to rob America of decades of racial progress.
The bigger question is: Who is supposed to decide when the Voting Rights Act is no longer needed? The answer is certainly not nine unelected justices. That’s the role of Congress, and a high court that respected the separation of powers spelled out in the U.S. Constitution, would act accordingly. Congress has not said the law is obsolete. To the contrary, it has said the opposite. The Court has simply decided it knows better.
That is the deepest offense of this ruling. The Voting Rights Act was “one of the most consequential, efficacious, and amply justified exercises of federal legislative power in our Nation’s history,” as the late Justice Ruth Bader Ginsberg once wrote. The six justices who have now effectively wiped the law away, went way beyond their Constitutional authority.
Justice Kagan’s dissent ends with three sentences worth quoting in full: “I dissent because Congress elected otherwise. I dissent because the Court betrays its duty to faithfully implement the great statute Congress wrote. I dissent because the Court’s decision will set back the foundational right Congress granted of racial equality in electoral opportunity.”
She is right on all three counts. The only remaining question is whether Congress will act — as it did in 1982 to reverse Bolden — to restore what this Court has improperly taken away. That will require 60 votes in a closely divided Senate, a political near-impossibility in the current climate.
Which is, one suspects, exactly the point.