Happy Birthday. Now Prepare to Die.
The Supreme Court Signals It May Lay Waste to the Voting Rights Act
Wednesday marked the 60th anniversary of the Voting Rights Act of 1965 (VRA), widely regarded as the most effective civil rights statute in American history—and by many as the most successful piece of legislation in U.S. history.
Passed at the height of the civil rights movement, the VRA was a sweeping assertion of federal power in service of a basic democratic ideal: equal access to the ballot. And for decades, it worked. It became a powerful engine of political inclusion, racial justice, and democratic accountability.
The VRA was designed to enforce the promise of the Reconstruction Amendments—particularly the Fifteenth, ratified in 1870, which prohibits denying the right to vote “on account of race.” That promise was honored in the breach for nearly a century. After the brief flowering of Black political power during Reconstruction, Southern states erected a Jim Crow voting regime enforced by violence, fraud, and legal artifices like poll taxes, literacy tests, and all-white primaries. Even when courts struck down one tactic, states replaced it with another. By 1965, it was plain that constitutional language alone could not secure voting rights. Congress had to act.
Section 5: The Heart of the Act
The VRA’s architecture had two central pillars: Section 5, which required jurisdictions with histories of discrimination to “preclear” any voting changes with the federal government; and Section 2, a broader provision barring racially discriminatory voting practices nationwide.
For the first 50 years of the VRA’s operation, Section 5 was the more powerful engine. It blocked over 3,000 discriminatory voting changes before they could take effect—many of them small, technical tweaks that could have otherwise gone unnoticed until after they disenfranchised voters. The law’s reach extended to redistricting, polling place closures, voter ID requirements—anything that affected who could vote, how they could vote, or how their vote was counted. And Congress reauthorized the preclearance framework five times, most recently in 2006 by votes of 390–33 in the House and 98–0 in the Senate.
Then came Shelby County v. Holder in 2013. Chief Justice Roberts declared that the coverage formula in Section 4—which determined which jurisdictions had to preclear changes—was outdated and therefore unconstitutional. “The conditions that originally justified these measures,” Roberts asserted, “no longer characterize voting in the covered jurisdictions.” In dissent, Justice Ginsburg retorted, “[t]hrowing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.”
With the 5–4 vote in Shelby County, Section 5 became a dead letter. States like Texas moved within hours to implement previously blocked laws. A decade later, the consequences are still rippling outward.
The Shift to Section 2—and Its Limits
With Section 5 gutted, the focus and burden shifted to Section 2, the provision that prohibits voting practices which “result in a denial or abridgment” of the right to vote on account of race. Crucially, Congress amended Section 2 in 1982 to bar not just intentional discrimination, but also laws with discriminatory effects.
This "effects test" became the main tool for fighting modern vote suppression—policies that, while facially neutral, systematically disadvantage minority voters. In the past decade, civil rights groups and the DOJ have used Section 2 to challenge voter ID laws, cuts to early voting, racial gerrymanders, and other tactics of vote dilution.
But Section 2 litigation is slow, expensive, and comes only after the damage is done. The burden of proof is high, and even when plaintiffs win, the remedies often come too late to affect an election. Still, Section 2 has retained enough vitality to block some of the worst abuses. It’s been the last line of defense.
Now that last line is under attack.
The Court’s Recent Bombshell
Since Thornburg v. Gingles (1986), courts have relied on the creation of so-called majority-minority districts as the primary remedy for racially polarized voting. These districts—where a racial minority makes up more than 50% of voters—have made it possible for Black, Latino, and Native communities to elect candidates of their choice. Without them, minority voters are often submerged in white-majority districts that dilute their political power.
Today, there are about 141 majority-minority congressional districts, or about 1/3 of seats in the U.S. House, and hundreds more in state legislatures. They owe their existence to Section 2. Strip that away, and Section 2’s guarantee of equal political opportunity goes with it.
Then last Friday, the Supreme Court issued a quiet procedural order in a Louisiana redistricting case that had thunderous effect. The case, Louisiana v. Callais, came to the Court after a district court holding that the state needed to redraw its map to add a second majority-Black district. The Supreme Court heard oral argument but didn’t decide the case. Instead, it ordered the parties to brief the following question: “Whether the State’s intentional creation of a second majority-minority congressional district violates the Fourteenth or Fifteenth Amendments to the U.S. Constitution.”
The Court’s order sent immediate shock waves through the voting rights community. The Court was announcing that it may strike down Section 2 of the VRA. With the Court-engineered demise of Section 5 twelve years ago, this move would leave the VRA an essential dead letter.
Justice Thomas, in a separate concurring opinion in the Louisiana case, took the Court to task for not deciding the case now (which would have meant the decision applied in the coming midterms). More ominously, he staked out the position that requiring race-conscious districting—in other words, enforcing Section 2 as written—violates the Constitution’s Equal Protection Clause by making race determinative. At least two other Justices have signaled similar views in past cases.
And while the Court has not yet struck down Section 2, the mere fact that it is entertaining the question signals how far the Overton window has shifted. This is a Court that gutted Section 5, declined to police partisan gerrymanders, and has shown little patience for federal civil rights enforcement. A majority ruling that Section 2 itself is unconstitutional is no longer unthinkable.
As if that weren’t enough, a separate line of attack has opened up in the lower courts. Several Trump-appointed judges have suggested that only the DOJ—not private plaintiffs—has standing to bring Section 2 lawsuits.
That would mark a radical departure from decades of precedent. For generations, civil rights groups and individual voters have brought the vast majority of Section 2 cases. Limiting enforcement to the current DOJ would make the statute hostage to the caprice of an administration that has shown antipathy toward provisions safeguarding minority voting rights.
A (Partial) Statutory Fix in Waiting
There is one substantial fix in the wings. The John Lewis Voting Rights Advancement Act would restore the preclearance regime, modernize the coverage formula, and otherwise update federal protection of voting rights. (It also would bolster Section 2, but it’s not clear that part of the bill could stand if the Court holds that Section 2 violates the Equal Protection Clause.) Put simply, it would reinvigorate and modernize the VRA.
The statute has passed the House multiple times in recent years, but Republicans in the Senate blocked it with filibusters each time. With the current political configuration, there’s little chance of passage. But it remains as a sort of lifeline that a future more moderate Congress could adopt, and a future President committed to democracy could sign into law.
For now, the joint retreat of the Supreme Court, Congress, and much of the executive branch has left voting rights advocates increasingly cornered. It’s not just that they’re losing cases—it’s that the field of play is shrinking. Once the fiercest shield for civil rights, the VRA now stands much diminished—a silhouette, not yet gone but deeply hollowed. And now, even that fragile frame may soon be dismantled.
The 60th anniversary of the VRA should have been a celebration. Instead, it is looking increasingly like a requiem. If that feels disheartening, it should also feel familiar: every gain in American democracy has had to be continually defended. It falls to us to emulate the John Lewis path and fight for a government that will reinstate his legacy legislation.
Talk to you later.
Justice Thomas is wearing white face again. Is his wife at home ironing his sheets? The Supremes are at it again. There is no justice as long as the MAGA right on the Court is in power.
As the aging son of an attorney, I really appreciate the depth that you go into these cases, Harry. It's like having my own attorney, on staff.