Category Archives: Voting Rights Act

Waiting for Callais

redistricting, Supreme Court, Voting Rights Act

Earlier today, Rick Pildes flagged the Court’s inexplicable month-long delay in issuing a re-argument order in Louisiana v. Callais, last Term’s—and now next Term’s—major Shaw case. I agree with Pildes’s concerns and want to add a few points.

First, to further speculate, it is possible the Court wants to pair Callais with a Section 2 case. Indeed, the Alabama redistricting case—known to blog readers as Allen v. Milligan—is heading back to the Court soon. Recall that in May the three-judge district court found that Alabama’s 2023 redistricting plan was enacted with discriminatory intent. Coincidentally(?), Alabama filed its notice of appeal from that injunction on June 6, 2025. That notice of appeal is available on the district court docket, but I have been unable to locate a jurisdictional statement on the Supreme Court’s electronic docket. There’s also a bail-in hearing in Milligan scheduled for this Tuesday—about which I will have a preview post on Monday. This would further raise the stakes in Milligan. And if we add the Eighth Circuit implied cause of action/Section 1983 case to the docket, the October 2025 Term could be a monumental one for voting rights.

Second, assuming that the Court will order supplemental briefing, this case could be delayed well into the fall. Of course, supplemental briefs might be on a shorter timetable than normal merits briefs. But it seems counter-productive to push a case that proved impossible for the Court to decide in one Term even deeper into the next.

Third, I want to highlight something odd about Justice Thomas’s dissent from the Court postponing the case to next Term. Characteristically, he calls for a complete re-assessment of the Court’s voting rights jurisprudence and lambasts Section 2 of the VRA. What is striking is the complete absence of his change-of-face in his Alexander concurrence from 2024. Indeed, he doesn’t even cite it. If, as Thomas claimed in Alexander, racial gerrymandering claims are non-justiciable political questions, then Callais seem like an odd vehicle to invalidate Section 2 of the VRA. Moreover, Thomas’s questions at the Callais oral argument memory-holed the Alexander concurrence. I’ve previously written about how Thomas failed to reconcile his new position on Shaw claims with the VRA’s constitutionality, and his Callais dissent only raises more questions.

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Supreme Court Puts on Hold Eighth Circuit Order that Would Have Ended Private Enforcement of the Voting Rights Act in Seven States, But Three Justices Appear Ready to Kill Section 2 Nationally

Supreme Court, Voting Rights Act

Via Steve Vladeck comes this Supreme Court order, over the dissents of Justices Alito, Gorsuch, and Thomas, of the Eighth Circuit case raising the question whether private plaintiffs have the right to sue under Section 2 of the Voting Rights Act:

The stay is in some ways not a surprise, since the argument that Section 2 can only be enforced by the Department of Justice is laughable. More than 90 percent of Section 2 cases have been brought through private enforcement. Congress knew this full well when it tweaked Section 2 in renewing the Voting Rights Act in 2006 and did nothing to touch private enforcement.

Justice Kavanaugh had already put enforcement of the ridiculous 8th Circuit has on hold, in part because there was a loony North Dakota Legislative Council argument that the current holder of a seat in the state legislature, elected from a Native-majority district, would be immediately ousted by the issuance of the mandate from the Eighth Circuit.

Now everything stays on hold pending a likely decision by the Supreme Court in the next few months to hear this case on the merits, and opponents of the VRA will have to try to pick off two of three additional conservative Justices (Kavanaugh, Barrett, and CJ Roberts) to go along with this unsupported evisceration of the remaining key part of the VRA (after the conservative Justices killed off the other part in the 2013 Shelby County decision).

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North Dakota Legislative Council’s Bizarre Understanding of Redistricting Ruling May Have Led to Justice Kavanaugh’s Administrative Stay in Eighth Amendment Voting Rights Act (Private Right of Action) Case

Voting Rights Act

As I noted a few days ago, Justice Kavanaugh put on hold via an administrative stay an Eighth Circuit case concerning whether private plaintiffs have the right to sue to enforce Section 2 of the Voting Rights Act. The answer should be that of course they do—that’s what Congress has understood since 1982, when it enacted the current regime for Section 2 claims (and in 2006 when Congress overwhelmingly renewed the VRA). The 8th Circuit decision conflicts with lots of other precedents, and stands alone. It would essentially kill VRA enforcement in all the states contained in that circuit.

When I blogged earlier, I had only a quick chance to glance at the petition seeking a stay pending the Native plaintiffs seeking full Supreme Court review of the decision, which would eliminate fair representation for tribal members in the North Dakota Legislature.

But this caught my eye upon reviewing the petition more closely:

Plaintiffs face potentially urgent harm in the absence of a stay. In a memorandum posted on its website after the Eighth Circuit denied Plaintiffs’ stay motion, the North Dakota Legislative Council contends that it is questionable whether legislators elected pursuant to the district court’s remedial map may continue to serve once the Eighth Circuit’s mandate issues if they do not reside in the 2021 legislatively adopted map’s version of their district. App. 101.1 Plaintiff Collete Brown resides on the Spirit Lake Reservation and was elected in 2024 as a state representative for district 9. She does not reside in the 2021 map’s version of district 9 that the district court enjoined. The specter that she becomes potentially ineligible to serve the moment the Eighth Circuit’s mandate issues warrants entry of an administrative stay to maintain the status quo while the Court considers the stay application.

If you take a look at the appendix beginning around page 100, you can see the memo from the North Dakota Legislative Council, taking the bizarre position that once the 8th Circuit mandate issues, the lower court opinion finding a voting rights violation automatically becomes a nullity, the state reverts back to the 2021 districts that were found to be a voting rights violation, and the state legislator elected from a majority-Native American district could be ousted because the no longer lives in the (old) district.

I’ve never seen anything like this and it is now how things work. The districts are what they are until the next election or a new court order. The 8th Circuit ruling does not automatically render the last election invalid. This is an insane interpretation unlike anything else I’ve ever seen.

If the Supreme Court stay is lifted and the mandate issues, that does not nullify the old election or old districts. It would mean instead that in the next election, the old district lines would be be used (following an order from the lower court that would have to reverse its initial ruling). The eligibility rules would apply for the next election.

I expect the Supreme Court to keep the stay in place and grant cert in this case, eventually reversing the 8th Circuit. But sheesh!

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“The Supreme Court Is Writing a Slow-Motion Eulogy for One of America’s Greatest Achievements”

Voting Rights Act

Maureen Edobor in Slate:

Next month marks the 60th anniversary of the passing of the Voting Rights Act—a law often celebrated as the “crown jewel” of the Civil Rights Movement. Signed in 1965 after years of organizing and unimaginable sacrifice, it was meant to realize the constitutional promise that the right to vote would not be denied or abridged on account of race.

Yet, as we approach this milestone, we find ourselves not in a moment of reflection or rededication but in a state of legal free fall. The Supreme Court has scheduled arguments next term on Louisiana’s racially gerrymandered congressional map, and the court as early as next week may put on hold and set for argument a case in which the 8th Circuit held that private plaintiffs have no right to sue to enforce Section 2 of the act. These pending decisions threaten to gut what remains of this once powerful statute, which has already been largely hollowed out by the Roberts court over the past decade-plus.

The Voting Rights Act was always meant to be a living safeguard, its strength rooted in community enforcement. Section 2 has allowed private citizens—not just the government—to sue when states draw district lines or enact voting laws that dilute minority voting power. It is this private right of action that has given the act its sharpest teeth.

Over the past 12 years, however, the Supreme Court has systematically dulled those teeth.

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Tokaji, “Racist Voting”

redistricting, Voting Rights Act

My latest article, recently published in the Alabama Law Review. Here’s the abstract:

Does the Constitution protect individual voters’ freedom to cast their votes for racially discriminatory reasons? Or does it prohibit racist voting that denies a minority group the opportunity to elect its candidate of choice? The surprising answer is that it does both. On an individual level, voters are free to cast their votes for their preferred candidates for whatever reasons they choose, including racist ones. On a systemic level, however, the aggregation of racist votes violates the Constitution where it is sufficiently prevalent to affect election results.

The practical importance of recognizing racist voting as a constitutional violation is to fortify Section 2 of the Voting Rights Act of 1965 (VRA). The constitutional status of Section 2 remains an open question after the Supreme Court’s two most recent redistricting decisions. In Allen v. Milligan, the Court affirmed the constitutionality of Section 2, while leaving the door open to a future challenge based on its unlimited temporal scope. In Alexander v. South Carolina State Conference of the NAACP, the Court raised the bar for showing that intentional race discrimination by the legislature invalidates a redistricting plan. These two cases highlight the urgency of defining with precision the “constitutional wrongs” that Section 2 addresses.

There is no doubt that intentional race discrimination by legislators is a constitutional wrong that Congress has the power to remedy through appropriate legislation. This Article argues that intentional race discrimination by voters is also a constitutional wrong that Congress may address through legislation. Part I considers the extent to which intentional race discrimination influences vote choice—in other words, whether racist voting is a thing. Part II considers whether racist voting is constitutionally protected, concluding that the combination of the secret ballot and constitutional limits on compelled disclosure effectively protects vote choices from judicial scrutiny. Part III argues that racist voting may nevertheless violate the Constitution where it is sufficiently prevalent to affect election results and that Section 2 of the VRA should be understood as a remedy for this constitutional wrong.

More on this and other subjects in a great conversation with my former colleagues at Ohio State, on their Law & Democracy Podcast.

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Justice Kavanaugh Stays 8th. Cir. Ruling Denying Private Enforcement of Section 2

redistricting, Voting Rights Act

Washington Post reports on yesterday’s administrative stay in Turtle Mountain Band of Chippewa Indians v. Howe:

Supreme Court Justice Brett M. Kavanaugh on Wednesday paused a federal appeals court ruling that bars individuals in some states from filing lawsuits claiming discrimination based on the landmark Voting Rights Act.

The administrative stay will allow the Supreme Court more time to consider whether to take up an appeal by Native American tribes in North Dakota who claim the ruling endangers a powerful tool to ensure equitable voting laws. It’s unclear when the high court might issue a decision to hear the case.

Law Dork Chris Geidner offers commentary.

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Voting Rights Plaintiffs and Texas Officials Spar Over Mid-Decade Redistricting

Department of Justice, redistricting, Voting Rights Act

A group of plaintiffs in a case challenging the State’s redistricting map have asked the trial court to reopen testimony in the case in response to Texas Governor Greg Abbott’s decision to call a special session to consider redrawing some of the State’s congressional lines. Michael Li has good coverage of these proceedings on his X feed.

From the plaintiffs’ motion:

New evidence reveals that witnesses, including Senator Huffman, Chris Gober, and Adam Kincaid, potentially falsely testified that Texas’s congressional map was drawn without consideration of race. Specifically, the Governor has called a special session of the Legislature to take up redistricting of the congressional map, approvingly citing a letter from the United States Department of Justice asserting that evidence exists to prove that the current congressional map was drawn with race as a predominant consideration. The deposition and trial testimony of the relevant witnesses and this new evidence are flatly contradictory. One or the other is false, and Plaintiffs and the Court are entitled to probe whether key witnesses truthfully testified at deposition and at trial—on the central question in this case—given this new evidence. That testimony is not only probative to Plaintiffs’ specific claims regarding the existing congressional map but is also probative to the credibility of these witnesses in general on all of Plaintiffs’ claims.

The State has responded to oppose the plaintiff’s motion.

From the State’s response:

As established by the robust trial record, the Texas Legislature did not racially discriminate in drawing the current congressional electoral districts—full stop. Following that robust trial record, and perhaps because of it, the Brooks, Gonzales, and MALC Plaintiffs (Plaintiffs) have filed an Emergency Motion, requesting that this Court reopen the record and schedule an expedited hear-ing in response to “new evidence.” This “new evidence” contains no alleged facts about how districts were drawn back in 2021. It does not even consist of any new, contradictory statements by the witnesses whose testimony they seek to reopen. Instead, it is a legal argument by the De-partment of Justice (DOJ)—a third party with no personal knowledge—about changes to redis-tricting caselaw in 2024, as well as Governor Abbott’s call for the Legislature to consider congres-sional redistricting in an upcoming special session. Neither the DOJ letter nor the Governor’s Proclamation—both of which come nearly four years after the Legislature passed the current maps—constitute new evidence requiring the Court to reopen the record. And neither in any way impugns the truthfulness of Chairwoman Joan Huffman, Chris Gober, and Adam Kincaid. 

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VoteBeat on Texas Redistricting

Department of Justice, redistricting, Voting Rights Act

VoteBeat covers the Texas redistricting here. They also have a fantastic quote from our brilliant colleague Justin Levitt.

From the article:

Justin Levitt, a constitutional law expert who served in the DOJ under former President Barack Obama, said the agency misinterpreted Petteway in its letter. That 2024 decision, Levitt said, did not rule on what constitutes an unconstitutional racial gerrymander — it just asserted that the Voting Rights Act does not let individual racial or ethnic groups join together to claim that political boundaries dilute their votes.

The argument laid out in the letter, he added, is not befitting of DOJ’s typical quality, in both Democratic and Republican administrations — especially on a topic so familiar to the agency. 

“It’s sloppily dashed-off work,” Levitt said. “It looks like the sort of thing I’d expect from an AI engine that didn’t know how to do law.”

The DOJ declined to comment. 

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Could the Texas Mid-Decade Redistricting Scheme Backfire?

redistricting, Voting Rights Act

This article from Politico, quoting Democratic lawmakers, makes the case.

From the article:

A Donald Trump-backed effort to gerrymander Texas would boost the GOP’s attempts to cling to its razor-thin House majority in next year’s midterms — but it also runs a serious risk of backfiring.

Texas Gov. Greg Abbott asked the state legislature to redraw the map during its special session this summer, following a push from the White House and the Justice Department. Ohio is also required by state law to redraw its lines before next year’s midterms. Taken together, Republicans see an opportunity to potentially create more GOP seats, guarding against the possibility of a blue wave in 2026.

But in Texas, Republicans are in danger of creating a so-called dummymander, whereby an attempt to draw more seats for one party accidentally benefits the other. Texas’ congressional map already heavily favors the GOP, so any changes to further benefit the party would have to walk a careful line. Adding Republican voters to blue districts to reduce Democrats’ margins means taking those same voters out of the red districts where they reside. The result is more competitive districts across the board — ones Democrats hope to take advantage of as they harness anti-Trump energy in the midterms.

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Two Events Commemorating the 50th Anniversary of Section 203 (the Language Provisions) of the Voting Rights Act

Voting Rights Act

Announcement via email:

The ACLU SoCal, ALC, CA Common Cause, and PANA are excited to share that registration is now open for “More Voices, Stronger Democracy: The 50th Anniversary of Section 203,” a statewide summit on language access and voting rights in California.

First up: The Pre-Summit Webinar (virtual)

Get grounded in the history, impact, and future of Section 203 before the Summit begins. This virtual event will feature reflections from leaders who helped secure the original passage and reauthorizations of this landmark provision of the Voting Rights Act. Panelists will offer unique perspectives on the law’s implementation, enforcement, and the challenges and opportunities that lie ahead for building a truly multilingual democracy.

Panelists: 

  • Henry Der, former Executive Director of Chinese for Affirmative Action
  • Karen Narasaki, former Commissioner, US Commission on Civil Rights
  • Rosalind Gold, Chief Public Policy Officer with NALEO Educational Fund
  • Jim Tucker, Section 203 Enforcement Attorney
  • Angelo Ancheta, Senior Research and Policy Counsel with Demos

Webinar Date: August 6, 2025

Register Here: https://tinyurl.com/203-webinar

More Voices, Stronger Democracy: The 50th Anniversary of Section 203 (in person)

We’ll be bringing together advocates, organizers, elections officials, and community leaders to reflect on 50 years of Section 203, elevate the voices of limited-English proficient voters, and strategize for the future of multilingual democracy. Panels will cover implementation, new research, advocacy, and organizing efforts from across the state.  

  • Opening Remarks: Shirley N. Weber, Ph.D., California Secretary of State
  • Keynote: Xavier Becerra, Former U.S. Secretary of Health and Human Services; Former California Attorney General

Summit Date: August 26, 2025

Location: The California Endowment, Sacramento

Event Info & Registration: https://tinyurl.com/Section-203

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With the VRA on life-support, now is the time to reconsider goals and tactics

Voting Rights Act

The Supreme Court’s decision to set Louisiana v. Callais for reargument next term suggests that the Voting Rights Act’s respite from the conservative Court’s attacks is likely over. It is, therefore, time for those who remain committed to the United States as a multiracial democracy to start reimagining our goals and tactics. Toward that end, I offer some food for thought and a preview from a chapter I recently completed that will appear in Race, Racism, and the Law (Aziza Ahmed & Guy-Uriel E. Charles, eds., forthcoming 2026). The chapter makes a few points.

An increasingly conservative Supreme Court and an evolving political landscape require a reassessment of our goals and tactics in the continued fight for an inclusive multiracial democracy.

The Roberts Court is not just a reluctant enforcer of the openness of the political process, but a hostile policer of congressional efforts to do so. The gutting of the VRA is a manifestation of this trend. Voting rights activist must reconcile themselves to having lost their most important political ally in the fight for a multiracial democracy as it was conceived in the mid-twentieth century.

But the need for reevaluating goes beyond the conservative Court. The VRA and the related priorities of the voting rights community are increasingly mismatched with how race continues to influence politics and with evolving conceptions of race.

Taking the latter point first. As Americans increasingly operate with broader understandings of race, there are genuine questions about how relevant the categories that defined voting rights jurisprudence under the VRA will be in the future. The twentieth-century version of race, which “divide[s] us all up into a handful of groups,” is increasingly incongruous with the fact that “American families have become increasingly multicultural.” Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 600 U.S. 181, 293 (2023) (Gorsuch, J., concurring). Americans appear to agree with Chief Justice Roberts that the typical racial “categories [on various forms] are themselves imprecise in many ways . . . [sometimes] plainly overbroad.” Id. at 216 (Roberts, J.)

This concession does not require accepting the conservative Court’s colorblind vision of the Constitution or its belief that an entirely white legislature would be legitimate so long as there were no formal barriers to electoral participation. Still, we would be remiss not to consider the evolving ways in which race matters to politics: discrete categories often matter less than shared intersectional experiences of racial and economic oppression.

Third and most importantly, we need to reconsider our tactics and expand our thinking in our fight for a more inclusive multiracial democracy. Failures to address enduring economic and social inequality, far more than the remaining formal and informal barriers to voting, are the primary obstacles to realizing an inclusive multiracial democracy.

The chapter makes the case for each of these claims—most importantly the third—and argues that, given these realities, a new paradigm for change should measure progress in terms of the policy returns to voters of color of their political participation. This means prioritizing building political power through political parties with a focus on party-centric reforms to revitalize our party system. In recognition of the skepticism with which voting rights advocates and the communities they represent are likely to approach a call that involves working with political parties, the chapter devotes significant attention to the promises and pitfalls for communities of color of more fully embracing a party-centric power-building strategy in the fight for a meaningfully inclusive multiracial democracy.

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