Category Archives: Voting Rights Act

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

Supreme Court, Voting Rights Act

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”

chicanery, Voting Rights Act

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”

Department of Justice, Supreme Court, Voting Rights Act

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?”

Supreme Court, Voting Rights Act

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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Alabama Dodges Bail-in

court decisions, redistricting, Voting Rights Act

Yesterday, the three-judge district court in the Alabama congressional redistricting litigation declined to bail-in the State to the VRA’s preclearance regime. You can find the district court’s decision here.

Recall that the district court had previously found that Alabama’s 2023 defiance of the Supreme Court’s decision in Allen v. Milligan constituted intentional discrimination. Based on the district court’s obvious frustration with Alabama’s recalcitrance, it appeared that the State was a prime candidate for bail-in under Section 3(c) of the VRA. Moreover, plaintiffs’ bail-in request was limited: only for congressional redistricting and only through the post-2030 redistricting map. Bail-in was designed to stop the game of whack-a-mole that was Southern defiance of federal court decrees. Unfortunately, Alabama dodged the hammer once again.

For prior analysis of bail-in in this case, see here, here, and here. Here’s some takeaways from the district court’s opinion and recent bail-in litigation overall:

1.         The district court’s fifteen-page opinion is mostly a summary of the litigation and last week’s bail-in hearing. Its analysis of the bail-in issue is cursory. The court sidestepped contentious questions about whether multiple constitutional violations are necessary for bail-in; whether Shaw violations count; and whether constitutional violations by political subdivisions are part of the inquiry. Instead, the district court relied heavily on its retention of jurisdiction over the case through the 2030 redistricting cycle and its injunction that Alabama must use the Special Master’s remedial maps. It observed that this “largely obviate[d]” the need to delve into the “intrusive waters” of preclearance.  Indeed, the district court’s approach recalls the Fourth Circuit’s minimal analysis of the bail-in question in McCrory, the North Carolina voter-suppression case.

Furthermore, the district court appears to conflate the question of retaining jurisdiction and bail-in. For example, the district court’s opinion could be read to express concern about dealing with the case through the entire 2030 redistricting process—that is, through 2041. But that is emphatically not how bail-in under Section 3(c) would have worked. Alabama would have been required to preclear the first map that it drew after the 2030 Census. So long as Alabama met its burden to show by a preponderance of the evidence that it had not intentionally discriminated and had not retrogressed Black voting strength, the bail-in would have ended. Any Section 2 or Shaw claims would have been heard by a separate court. And the bail-in would not have applied to a 2030 mid-decade redistricting either.

To be clear, some of this confusion could be attributable to plaintiffs’ back-up request for the court to retain jurisdiction. But the substantive standard and process for how preclearance would work under Section 3(c) is distinct from how the same court hearing a potential Section 2 case in the 2030s would work.

2.         Although the district court declined to bail-in Alabama, it did mandate that it use the Special Master’s remedial map until the 2030 redistricting cycle. Thus, for now, Alabama cannot take part in the potential wave of mid-decade redistricting that might occur. However, Alabama has appealed the underlying merits determination to the Supreme Court, and with the Callais re-argument next Term, it is possible Alabama may be freed from this permanent injunction.

3.        The lightning bolt of the Callais re-argument order looms large here. The short time frame between last week’s hearing and yesterday’s decision hints at a district court that thinks it’s gone as far as it can go without being rebuked by the Supreme Court.

4.         Finally, one cannot help but wonder what might have been in these post-Shelby County bail-in suits if the Supreme Court had not become considerably more conservative during the first Trump administration. Put differently, if the Senate had not successfully blockaded Merrick Garland or if Justice Ginsburg had retired in a timely manner, the preclearance regime might have been partially rebuilt. We have seen district courts issue intentional discrimination findings against two States that were previously fully covered (Alabama and twice against Texas) and two States that were previously partially covered (Florida and North Carolina). But when it came to pull the trigger on Section 3(c) relief, the lower courts blinked.

Perhaps one upshot of yesterday’s decision is that bail-in’s constitutionality will continue to escape Supreme Court review. Although I still believe that this is the best post-Shelby County vehicle for addressing Section 3(c)’s constitutionality, one need not look far for other voting/civil rights cases—such as Brnovich—in which an aggressive litigation posture ended up backfiring. We will have to wait and see what remains of the Voting Rights Act after next Term, which is shaping up to be monumental.

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The Media’s Unfortunate Greater Interest in the Texas Redistricting Car Wreck than the Supreme Court’s Slow Poisoning of the Voting Rights Act

redistricting, Supreme Court, Voting Rights Act

I’ve written about two big election stories this week, the newly ignited redistricting wars starting in Texas and the Supreme Court’s strong signal that it could kill off the Voting Rights Act Section 2 by next June. Judged by my conversations with those in the media, Texas redistricting is the bigger story, but I think the VRA is—especially coming on the 60th anniversary of the passage of the Act.

It’s not surprising that the media is more attracted to the Texas story. It happens right now with great visuals of fleeing legislators and threats to bring in the FBI, and Democratic governors vowing to engage in tit-for-tat warfare. The harms to democracy are easy for everyone to see.

But when the Supreme Court acts, it’s very hard to make exciting for the public. A cryptic briefing order issued at the start of a summer weekend does not make good visuals. You don’t get sound bites from Justices Alito and Sotomayor. The action will take place in dense, technical briefs, over months.

So when the Supreme Court kills another aspect of democracy and does it with slow poison, it is much harder to get the public to pay attention. But the lasting cost to our democracy is likely to be far greater than the redistricting skirmishes happening in prime time.

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My New One at MSNBC Opinion: “Trump started a redistricting war. Only Congress can stop it.”

redistricting, Supreme Court, Voting Rights Act

I have written this piece for MSNBC Opinion. It begins:

A sudden war over redistricting has broken out in Texas and looks to spread across the country, with California, New York and elsewhere considering tit-for-tat Democratic partisan gerrymanders to negate the Republican hardball in Texas. Congress, rather than the courts, is in the best position to stop the upcoming race to the bottom. But even though it’s in everyone’s interest that Congress act, don’t hold your breath….

It is possible the courts will block some of these gerrymanders if it can be shown, for example, that they violate the Voting Rights Act. But the Supreme Court just signaled that it may further weaken or kill Voting Rights Act claims in redistricting cases. With that red flag, and with the court’s decision to allow unlimited partisan gerrymandering, the courts are not likely to get the country out of this vicious cycle.

Congress can stop the madness at any point. The Constitution gives Congress the power in Article I to “make” or “alter” state rules for running congressional elections, including redistricting. Congress could outlaw mid-decade redistricting, require the use of commissions, or set a standard barring the most egregious partisan gerrymanders.

In the current polarized atmosphere in Congress, and with Trump (who would have to sign such legislation) looking to impose “maximum warfare, everywhere, all the time” to preserve Republican power, a bipartisan deal to avoid a redistricting war seems most unlikely. But as the Cold War taught us, détente is better than mutually assured destruction for all the parties. Those who suffer the most are the voters, who should not be packed in or cracked out of districts simply because their party is in the minority.

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My New One at Slate on the Supreme Court Potentially Killing the Remaining Pillar of the Voting Rights Act: “The Supreme Court Just Signaled Something Deeply Disturbing About the Next Term”

redistricting, Supreme Court, Voting Rights Act

I have written this piece for Slate. It begins:

Reading the tea leaves from cryptic Supreme Court orders can be perilous business because the justices are not bound by the questions they ask at oral argument, the offhand comments they make at a judicial conference, or even their monumental “shadow docket” rulings on emergency petitions that have become all too common. But a technical briefing order in a long pending case out of Louisiana, posted on the Supreme Court’s website after 5 p.m. on a Friday in August, was ominous. The order was likely intended to obscure that the court is ready to consider striking down the last remaining pillar of the Voting Rights Act, known as Section 2. Such a monumental ruling, likely not coming until June 2026, would change the nature of congressional, state, and local elections, all across the country, and likely stir major civil rights protests as the midterm election season heats up….

We waited weeks for the court to issue its rescheduling order and when it came this past Friday it was a doozy. The court pointed specifically to a set of pages in plaintiffs’ brief which argue that Section 2 is unconstitutional, at least as applied in this case, and that the Voting Rights Act cannot serve as a compelling interest to defeat a racial gerrymandering claim when race predominates. “The parties are directed to file supplemental briefs addressing the following question raised [in that brief]: Whether the State’s intentional creation of a second majority-minority congressional district violates the Fourteenth or Fifteenth Amendments to the U. S. Constitution.”

Although the court’s order did not explicitly mention Section 2 or even the Voting Rights Act more generally—unquestionably to obscure things further—there is no doubting what’s going on here. The court is asking the parties to consider whether Louisiana’s compliance with Section 2 of the Voting Rights Act by drawing a second majority-minority district—as the earlier Ardoin case seemed to require—was unconstitutional under a view of the Constitution as requiring colorblindness.

If the Supreme Court moves forward with this interpretation it would be a sea change to voting rights law. A reading of the Constitution as forbidding race-conscious districting as mandated by Congress to deal with centuries of race discrimination in voting is at odds with the text of the Constitution, with the powers granted directly to Congress to enforce the Fourteenth and Fifteenth Amendments, and with numerous precedents of the Supreme Court itself. It would end what has been the most successful way that Black and other minority voters have gotten fair representation in Congress, state legislatures and in local bodies. It would be an earthquake in politics and make our legislative bodies whiter and our protection for minority voters greatly diminished. Even if the court less drastically says that Section 2 could not be used to require the second congressional district in this case, such a superficially more minimal ruling would mean the quick unraveling of most Section 2 districts because if the facts in Louisiana don’t justify drawing a second district, most other Section 2 claims would fail too….

Court conservatives likely thought teeing up the issue of overruling Section 2 on a hot summer weekend would avoid public notice. But that’s a short term strategy. Come next June, any decision to strike down what’s left of the Voting Rights Act could kick off the start of a new civil rights movement and more serious talk of Supreme Court reform in the midst of crucially important midterm elections. A court fundamentally hostile to the rights of voters places the court increasingly at odds with democracy itself.

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Breaking: Supreme Court, in Order Asking for Additional Briefing in Louisiana Voting Case, Appears to Put the Constitutionality of Section 2 of the Voting Rights Act into Question

Supreme Court, Voting Rights Act

The Supreme Court just issued this order:

Louisiana had to create that second majority-minority district in order to comply with the Voting Rights Act, as it had been found to face Section 2 VRA liability for not creating that district. What the Court seems to be asking, without directly saying it, is whether Section 2 of the VRA, at least as to how it has been applied to require the creation of majority-minority districts in some circumstances, violates a colorblind understanding of the Constitution.

The stakes here are enormous; I was worried the Court would put the VRA’s constitutionality into question when there was this great delay in the Court ordering supplemental briefing. Something big was happening behind the scenes. And now we know.

This Court is more conservative than the Court that in 2013 struck down the other main pillar of the Voting Rights Act in the Shelby County case. This is a big, and dangerous, step toward knocking down the second pillar.

There was a LOOOOONG delay in SCOTUS issuing the supplemental briefing order, burying it after 5 pm on a Friday in August rather than at the end of the Supreme Court term when everyone was paying attention.

UPDATE: Page 36-38 of appellees’s brief, referenced in the order above, make it clear that Section 2’s constitutionality is being put into question:

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