Category Archives: Voting Rights Act

With Louisiana Essentially Flipping Sides in Callais Case Before Supreme Court and Arguing Section 2 of the Voting Rights Act is Unconstitutional, Full Defense Shifts to Voting Rights Groups

As noted yesterday, Louisiana essentially flipped sides in the Lousiana v. Callais case. In an earlier brief, Louisiana argued that its congressional districts were not a racial gerrymander because politics, rather than race, predominated in drawing district lines. Now that the Supreme Court has disturbingly ordered reargument and put up to debate whether compliance with Section 2 could ever constitutionally justify making race the predominant factor in redistricting, Louisiana has done an about face, and is arguing in essence that Section 2 is unconstitutional in demanding race conscious redistricting, and it exceeds Congress’s power to act (citing Shelby County, where the Court held preclearance now exceeded Congress’s power and assured us, don’t worry, there’s always Section 2).

So it has fallen to the NAACP LDF, the ACLU and other leading voting rights organizations to file a brief (the brief for the “Robinson Appellants”) that takes to the main defense of the constitutionality of the VRA, setting up totally different dynamics at one of the highest stakes oral arguments in the new millennium.

It’s a compelling brief, and one of its earliest arguments is that the Court should not even reach the issues in this case because the question was not briefed below and there is no factual record in the lower courts:

First, because they did not raise this claim before the district court, Appellees presented no facts below casting doubt on the constitutional propriety of the Legislature’s reliance on the Robinson courts’ findings. There is simply no factual or other record basis in this case for this Court to address the asapplied argument that Appellees now urge. Cf. Milligan, 599 U.S. at 45 (Kavanaugh, J., concurring) (declining to consider this “temporal argument” where the state failed to raise it). In contrast, the decisions in Robinson of two unanimous Fifth Circuit panels and the district court were all faithful to this Court’s precedent. All found, based on an extensive record, that current conditions in Louisiana had denied Black voters the opportunity to elect the candidates of their choice. All agreed that the Robinson Appellants had offered reasonable plans that both did not allow race to predominate and better respected traditional redistricting criteria than the 2022 plan. Nothing in Appellees’ brief offers any evidence that might undermine the detailed findings and considered analysis of the Robinson courts.

The masterfully done brief continues:


Second, Appellees’ as-applied attack on §2 fails because the notion that the sun has set on the need for race-conscious remedial redistricting for identified instances of racial vote dilution is contrary to both the fact of ongoing discrimination in Louisiana and the text and purpose of §2 as it was amended in 1982 and has been consistently interpreted by this Court ever since. Congress enacted §2 pursuant to the specific textual authorizations in the Fourteenth and Fifteenth Amendments, U.S. Const. amend. XIV § 5; U.S. Const. amend. XV § 2. Section 2 focuses on discriminatory results, not subjective intent. Banning state actions with a discriminatory result without requiring a finding of subjective discriminatory motive is “an appropriate method of promoting the purposes of the Fifteenth Amendment.” Milligan, 599 U.S. at 41 (citation omitted). And Congress wisely did not choose to enact a “freewheeling disparate-impact regime.” Brnovich v. Democratic Nat’l Comm., 594 U.S. 647, 674 (2021). Rather, §2’s “exacting requirements” serve to “limit judicial intervention to those instances of intensive racial politics where the excessive role of race in the electoral process denies minority voters equal opportunity to participate.” Milligan, 599 U.S. at 30 (cleaned up). Congress thus properly acted at the heart of its textually conferred constitutional powers when enacting §2. See id. at 41.


Section 2’s limited scope ensures that a state’s interest in remedying a violation is sufficiently
compelling to withstand constitutional scrutiny. The “prevention and remedying of racial discrimination and its effects is a national policy of ‘highest priority.’” United States v. Paradise, 480 U.S. 149, 168 (1987) (citation omitted). A state thus has a compelling interest in remedying discrimination if: first, the discrimination it seeks to remedy is “identif[ied] . . . with some specificity,” and second, the state has “a strong basis in evidence” to conclude that its remedial action is necessary to redress that discrimination. Shaw v. Hunt, 517 U.S. 899, 909-910 (1996) (citation omitted) (“Shaw II ”). Strict compliance with the Gingles standard ensures that §2 compliance remains a compelling interest, especially when used to remedy a violation pursuant to court order. Thornburg v. Gingles, 478 U.S. 30 (1986).

Third, Appellees’ as-applied attack fails because it rests on the faulty assumption that §2 contemplates overly broad race-based remedies. This fundamentally misunderstands the statute and the standards under which it operates. Congress and this Court have constrained race-conscious remedies in §2 in two critical respects: First, through the Gingles framework, it requires evidence that “present local conditions” evince race discrimination, and second, under Shaw’s predominance standard, race-conscious remedial districts are subject to safeguards against excessive consideration of race. See Abbott v. Perez, 585 U.S. 579, 619 (2018) (reversing §2 vote dilution findings where “almost none” of them referenced current conditions) emphasis added). In addition, the Gingles analysis and §2 remedial districting are always based on the latest census and election data, requiring the need for a remedy to be reevaluated at
least every ten years. Where new elections or census data show that a remedy is no longer viable or necessary, §2 cannot (and does not) justify race-based redistricting in perpetuity based on past violations. See Cooper v. Harris, 581 U.S. 285, 302-304, 306 (2017).


Section 2 remedies only come into play in places where a violation or potential violation is shown. Significantly, the first step in establishing a violation of §2 involves “Plaintiffs adduc[ing] at least one illustrative map that comport[s] with [this Court’s] precedents.” Milligan, 599 U.S. at 33 (plurality). Successful §2 cases thus always offer at least one narrowly tailored remedy. Id. Once a violation is proven, states have significant flexibility in enacting
§2 remedies. So long as it addresses the violation, a remedial district need not be majority-minority to satisfy §2 and must not consider race more than necessary to provide the required electoral opportunity. See Cooper, 581 U.S. at 305-306; Abrams v. Johnson, 521 U.S. 74, 93-94 (1997); Lawyer v. Dep’t of Justice, 521 U.S. 567, 575 (1997).


Section 2, moreover, applies nationwide, and thus does not implicate the concerns about equal
sovereignty and specific burdens imposed on states that animated this Court’s enjoining of the VRA’s preclearance coverage formula. See Shelby Cnty. v. Holder, 570 U.S. 529, 537, 557 (2013) (“Our decision in no way affects the permanent, nationwide ban on racial discrimination in voting found in § 2.”).


Fourth, because Appellees failed to adduce any evidence to support their attack on the
constitutionality of the Legislature’s reliance on the §2 findings in Robinson, this Court should reject that attack outright. But even if the Legislature’s consideration of race in SB8 exceeded §2’s careful constitutional constraints, this case should be remanded for development of a new map to remedy the §2 violation identified in Robinson. See Bush v. Vera, 517 U.S. 952, 994 (1996) (O’Connor, J., concurring) (“[I]f a State pursues that compelling interest by creating a district that substantially addresses the potential liability[], and does not deviate substantially from a hypothetical court-drawn § 2 district for predominantly racial reasons[], its districting plan will be deemed narrowly tailored.”) (cleaned up). The record in this case, as the district
court acknowledged, does not provide grounds for collaterally overruling the Robinson court’s
application of §2 to conditions in Louisiana or for assessing the constitutionality of other maps with two Black-opportunity districts.

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“Louisiana urges Supreme Court to bar use of race in redistricting, in attack on Voting Rights Act”

Mark Sherman for the AP:

Louisiana on Wednesday abandoned its defense of a political map that elected two Black members of Congress and instead called on the Supreme Court to reject any consideration of race in redistricting in a case that could bring major changes to the Voting Rights Act.

Appealing to a conservative-dominated court that has been skeptical of the use of race, Louisiana is advancing a position that could allow it and other Republican-led states in the South to draw new maps that eliminate virtually all majority Black districts, which have been Democratic strongholds, voting rights experts said.

“If Louisiana’s argument prevailed at the Supreme Court, it would almost certainly lead to a whiter and less representative Congress, as well as significantly less minority representation across the country in legislatures, city councils, and across other district-based bodies,” UCLA law professor Richard Hasen said in an email….

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“Advocates File Immediate Legal Challenge to Texas Gerrymander “

Democracy Docket:

Hours after Texas lawmakers approved a new gerrymandered congressional map Saturday morning, Texans asked a court to block it.

The plaintiffs*, a group of Black and Latino Texans, filed an amended complaint in an ongoing challenge to the electoral districts Texas drew in 2021. The amended complaint alleges that the new map violates Section 2 of the Voting Rights Act and the 14th Amendment by diluting the voting power of Black and Latino communities.

It also argues that the redistricting violates the 14th Amendment’s Equal Protection Clause “because it unnecessarily and unjustifiably considers racial and partisan demographics as part of a voluntary, mid-cycle redistricting,” and because it is “malapportioned” in violation of the principle of one person, one vote. 

In addition, the plaintiffs argue that the new redistricting “intentionally destroy[ed] majority-minority districts and replac[ed] them with majority-Anglo districts.” This was done, the plaintiffs charge, “explicitly because of the racial composition of those districts.”

Lawyers’ Committee statement:

Robert Weiner, the voting rights project director at the Lawyers’ Committee for Civil Rights Under Law, which represents the Texas NAACP in the ongoing lawsuit against Texas for racial gerrymandering, issued the following statement regarding the new redistricting law:

“This map is illegal. The architects of this racially discriminatory plan clearly targeted minority voters. The legislators bulldozed important majority minority districts. It eliminates opportunities of Black and Brown people to elect their preferred candidates in multiple Congressional districts.

“We are still in the midst of an ongoing lawsuit against the state of Texas because the existing maps dilute the votes of people of color. This new map increases discrimination. The legislators supercharged their efforts to undercut the voting strength of minority voters after the Department of Justice–misstating the law and abusing its power–told Texas to do that. This plan cannot stand.”

“As part of the ongoing case that we and others are challenging the 2021 maps, the United States District Court for the Western District of Texas in El Paso will hold a hearing on Wednesday, August 27th, to consider the schedule for litigation concerning Texas’s redistricting efforts.

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“Mississippi Supreme Court election map dilutes Black voters’ power, judge rules”

Reuters:

A federal judge has ordered Mississippi to redraw its election map used in voting for state supreme court justices after finding the current one dilutes the power of Black voters in violation of a landmark federal voting rights law.

U.S. District Judge Sharion Aycock in Greenville sided with a group of Black citizens of the state in finding on Tuesday that the map in place since 1987 for Mississippi Supreme Court elections violated the Voting Rights Act of 1965.

The court’s nine justices are elected in nonpartisan races from three districts to serve eight-year, staggered terms. The map’s lines are drawn by the state legislature and have changed little in over a century, according to the plaintiffs.

Black people make up about 40% of the state’s population, but Aycock noted that the Mississippi Supreme Court has had only four Black justices, none of whom have served at the same time. Each held the same seat in District 1, which includes the city of Jackson and part of the Mississippi Delta, and all four were first appointed by a governor….

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New Section 2 Lawsuit Filed in Montana

Release:

On August 14, 2025, the Chippewa Cree Indians of the Rocky Boy’s Reservation and two Native voters filed a lawsuit in the U.S. District Court for the District of Montana challenging Chouteau County’s unfair, at-large voting system for the Board of County Commissioners. The suit alleges the system unlawfully dilutes the voting strength of Native voters and has denied them any representation on the county commission for more than a decade.   

Under the current at-large system, all voters in Chouteau County cast ballots for all three commissioners, instead of electing commissioners by district. As a result, Native voters — who now make up approximately one-third of the county’s voting-age population — have consistently been unable to elect a candidate of their choice. The three current commissioners have all been elected and re-elected under this system since at least 2010. 

“We’re filing this lawsuit because Choteau County continues to hold elections in which the Native votes don’t count,” said Chippewa Cree Tribe Chairman Harlan Gopher. “The Chippewa Cree Tribe filed this lawsuit to prevent this local government from trampling on the civil rights of our people. A fair redistricting process must respect the boundaries and voice of our Nation.” …

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Q & A with Me in New York Magazine: “The Supreme Court Could Supercharge the GOP’s Redistricting Power Grab”

I spoke with New York’s Intelligencer‘s Nia Prater:

What are the potential ramifications if the Court weakens Section Two or ultimately does away with it?


First of all, it would be a huge blow for minority representation. A big part of the reason that we have such diverse legislative bodies, including Congress and state legislatures, is because the Voting Rights Act requires the drawing of districts to give minority voters the same opportunities as other voters to participate in the political process and to elect representatives of their choice. So we would see much whiter legislative bodies, including Congress, if the Court got rid of Section Two. But it would also, as I said in relation to your earlier question about Texas, give states, including southern states that have long been found to have engaged in race discrimination in voting, a freer hand in drawing partisan gerrymanders. Those gerrymanders help white Republicans and hurt minority voters and Democrats. And so, there would be a much greater chance to engage in the kind of partisan gerrymandering that we’re seeing being pushed now in Texas all across areas where Republicans have control of the state government.

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“Trump Isn’t the Only One to Blame for the Gerrymander Mess”

David Daley NYT oped:

President Trump, Vice President JD Vance and Texas Republicans have reignited the gerrymandering wars. The brazen power grab in Texas pushed Democrats to start their own efforts to unravel independent commissions established by voters, and now it’s threatening to tilt the whole country into chaos.

Mr. Trump and his G.O.P. allies are surely the instigators, but the true architect of this mess, the person who bears as much or more responsibility for it, is Chief Justice John Roberts and his conservative Supreme Court. Over several years of rulings, this court has effectively rolled back laws that had for generations protected the right to vote.

The current frenzy is just the latest example of the most antidemocratic feature of American politics in 2025. It’s the toxic combination of the conservative Supreme Court majority and a political party that believes longstanding norms are for suckers and that lacks any commitment to fair play and majority rule.

Since he joined Ronald Reagan’s Justice Department in 1981 as a young foot soldier in the nascent conservative legal movement, Chief Justice Roberts has pursued the patient, steady bleeding of the Voting Rights Act. In 2013, he wrote the 5-to-4 decision in Shelby County v. Holder that effectively ended preclearance, the Voting Rights Act’s most effective enforcement mechanism, and liberated states, many clustered in the South, from federal oversight of legislative maps…

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Supreme Court Fast-Tracks Potential Demolition of Section 2 of Voting Rights Act by Setting Argument October 15 in Louisiana Case, Possibly in Time to Affect 2026 Midterm Elections

We know the Supreme Court dallied a long time in setting the Louisiana case for reargument, only recently adding a doozy of a question in this racial gerrymandering case that could tee up a potential knocking down of the remaining pillar of the Voting Rights Act, Section 2. I explained the whole thing at Slate.

I had (wrongly) assumed given how long it took to set the case for reargument and to tee up the VRA issue that the Court would move slowly in the upcoming term so as not to mess with potential districts being used in the 2026 elections. (A decision to strike down Section 2, in this era of re-redistricting, could lead to a tsunami of new redistricting harming minority voters in Republican-dominated states.)

Now the Court has set oral argument in the case for October 15, in its first sitting of the new October 2025 Supreme Court term.

There are no guarantees on timing. The Court could well take until June 2026 to decide the case (or longer!). But setting it so early in the term after an expedited supplemental briefing schedule increases the chances of messing with the midterms.

Now it could also be that it was set for then because this case is held over from last term and the Court wants to dispose of a case it is already up to speed on.

But wow, this potentially raises the stakes a lot.

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“Voter Intimidation: Forging a Judicial Standard”

Ben Goldstein has written this article for the Journal of Law and Politics. Here is the abstract:

In the last few years, federal courts have seen a notable increase in voter intimidation cases. Empirically, instances of voter intimidation, whether litigated or not, may be increasing as well. After briefly offering explanations for this trend, this Article reviews federal laws aimed at voter intimidation, especially Section 11(b) of the Voting Rights Act. It then considers how courts can reconcile First Amendment speech protections with the need to regulate conduct that interferes with voting, drawing lessons from two recent lawsuits in the 2022 midterm elections
in Arizona.


Rather than solely balancing competing individual rights, courts should embrace a more expansive conception of the governmental interests at stake in voter intimidation cases. In particular, courts should recognize that voting is a separate sphere of civic life—a unique method of public decisionmaking distinct from day-to-day public discourse. As such, the act of voting merits stricter levels of protection than the laissez-faire system governing public discourse.


This Article also suggests that in our post-pandemic era of extended voting, a regime requiring narrowly tailored speech restrictions may be inadequate to safeguard voters from intimidation and interference. Given voting’s essential role in democratic self-governance, courts should not hesitate to enjoin intimidating conduct under Section 11(b), even absent a showing of subjective intent or threatened physical violence. Furthermore, courts should evaluate alleged intimidation not in isolation, but in light of its broader historical and social context and its actual impact on voters.

This looks to be an important piece.

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“Voting Rights and Private Rights of Action: An Empirical Study of Litigation Under Section 2 of the Voting Rights Act, 1982-2024”

Chris Seaman has posted this draft on SSRN (forthcoming, FSU Law Review). Here is the abstract:

The Voting Rights Act is perhaps the most effective civil rights law ever enacted, bringing millions of Americans who have historically been discriminated against into the democratic polity and facilitating the election of candidates of their choice.  But for more than a decade, the rights guaranteed by this landmark statute have been undermined by the courts.  Recently, the Eighth Circuit has eroded what remains of the Act by holding that private plaintiffs cannot sue to enforce the protections of Section 2 in federal court. This holding—which is in conflict with several other circuits, as well as prior Supreme Court decisions regarding implied rights of action to enforce other parts of the Voting Rights Act—seems likely to be reviewed by the Court.

To assess the potential impact of a possible nationwide ban on private plaintiffs bringing Section 2 claims, this Article reports findings from a comprehensive empirical study of over 1500 challenges brought in federal court between 1982 and 2024.  It finds that over 90% of Section 2 challenges were brought by private plaintiffs rather than the Attorney General. Moreover, private plaintiffs were highly successful in these challenges, winning nearly two-thirds of the time.  The Article then explains why, if Section 2 lacks a private cause of action, the federal government is ill-equipped as both a practical and a political matter to fill this gap in enforcement. 

Looking forward to reading this!

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“It’s been 60 years since the Voting Rights Act was signed. Will it make it to 61?”

Zach Montellaro for Politico:

The Voting Rights Act was signed into law 60 years ago this week. What the law will look like when it reaches its 61st anniversary next year is a big question.

The landmark piece of legislation — which helped usher in an era of increased minority representation across American politics — has slowly been chipped away by the Roberts Supreme Court over the last 12 years. And a pair of court battles over the next year could leave the future of the law even more uncertain.

These new cases came “within the Overton window because of what the justices themselves have done to encourage people to think more aggressively as it relates to the Voting Rights Act,” said Wendy Weiser, the vice president for democracy at the liberal advocacy organization the Brennan Center for Justice. “These are radical changes that would do significant damage to voting rights.”…

The North Dakota case does not present as direct an attack on Section 2 as the one from Louisiana. But a ruling that kills the right for private parties to sue would render the VRA effectively moot, Hasen said. “While a ruling that private parties couldn’t sue wouldn’t look like a death knell, when you’ve got most cases — the lion’s share — being brought by private parties, and you have a Trump Department of Justice that has not and does not appear to be interested in bringing any additional Section 2 lawsuits,” he said, “it would essentially be rendering Section 2 a dead letter.”…

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