Category Archives: Supreme Court

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

redistricting, Supreme Court, Voting Rights Act

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”

redistricting, Supreme Court, Voting Rights Act

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

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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“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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Election case curriculum videos

election law and constitutional law, Supreme Court, theory

Justin here. With the semester either beginning or around the corner, I wanted to lift up a series of great videos (illustrated, annotated, featuring case text, etc.) that the incomparable Guy-Uriel Charles and Sasha Natapoff have pulled together. Leading scholars (and also me!) each explain and analyze the text of a different seminal Supreme Court case. The videos are all shorter than 15 minutes long, and as the series editors suggest, “can be used to supplement the traditional written casebook and/or to deepen students’ engagement with key cases and doctrines.”

The direct link is https://CRBW.law.harvard.edu, and it’s all free for educators and nonprofits. Just register on the website if you’d like to take a look. (For crim pro faculty, there’s a crim pro version too.)

The roster (so far):

Get ’em while there’s still law to discuss!

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“How Alabama’s historic congressional map still faces uncertainty amid redistricting battles”

redistricting, Supreme Court

Al.com:

In this sweltering political August, redistricting has become the hot fight of the moment.

It’s driving Texas Democrats to flee their state, hunkering down in Illinois while Republican Gov. Greg Abbott threatens to have lawmakers removed from office. It’s throwing a Black-majority district in Louisiana into limbo, igniting fears that the U.S. Supreme Court could soon unravel what remains of the landmark 1965 Voting Rights Act.

And in Alabama, after years of courtroom showdowns, a long-fought redistricting battle appears to have reached a moment of resolution — at least for now. A three-judge federal panel last week ruled unanimously that Alabama must use the map drawn up by a court-appointed special master until 2030.

While it is unclear whether Alabama officials will appeal the latest ruling, it marked the second time the same Alabama Northern District panel ruled that the GOP-drawn map, with just one majority Black district, was unconstitutional and in violation of the Voting Rights Act.

The legal fight may not be over and experts warn that a Supreme Court decision in a Louisiana case could still send ripples through Alabama….

The Louisiana case has the potential to affect Alabama where Section 2 of the Voting Rights Act remains a key force that led to a redrawn 2nd district.

“It would not surprise me to see the Supreme Court hold any further appeals in the Alabama redistricting litigation pending a decision in the Louisiana case,” said Richard Hasen, a political science professor and election law expert at the UCLA School of Law, said before Thursday’s ruling by the three-judge panel in the Alabama case. “If Section 2 falls or is limited in the Louisiana case, it would affect the rights and remedies in Alabama as well.”…

Jeff Wice, chair of the New York City Bar Association Election Law Committee and a professor at New York Law School, said he believes the Alabama case is different from Louisiana and from Texas. He said that in Alabama, the conservative court ruled that the state’s congressional map clearly diluted the Black population’s vote.

“In Louisiana, they redrew their congressional map to also satisfy a requirement to create a second Black (majority) district,” Wice said. “But by doing so, the legislature created other districts that seemed to separate white votes from Black votes, and to be able to protect the incumbent Republicans including (U.S. House) Speaker Mike Johnson.”

He added, “the question there is becoming – to what extent is the use of race required if the prevailing factor is politics? Louisiana would not be having this problem if politics were not playing a role and if they simply did as Alabama’s court did in simply drawing two Black majority districts without politics getting in the way.”…

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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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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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