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

Politico

2 days ago

ANXIOUS ANNIVERSARY — 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.'
Enforcement of the Voting Rights Act has predominantly come through Section 2 of the law — which broadly prohibits discrimination in election practices on the basis of race, color or membership in a language minority group — after the Supreme Court in 2013 rendered the other major pillar moot. Back then, the court struck down the part of the VRA that determined which jurisdictions had a history of discrimination and needed to get federal permission before changing their voting laws.
Section 2 has been used to challenge voting practices — like restrictive registration requirements — that have disproportionately affected minority voters. But one of the biggest ways Section 2 enforcement has played out in practice has been the creation of 'majority-minority' congressional and legislative districts in which minority voters make up enough of the electorate to elect a candidate of their choosing. There are dozens of such districts across the country that are drawn to explicitly be majority Black, Latino or Asian — a practice the Supreme Court is now scrutinizing.
The first case starts in Louisiana, where a majority Black district that sprawled across the state was challenged by a group of self-identified non-Black voters as an unconstitutional racial gerrymander.
The court initially heard arguments appealing that case in March. But earlier this summer, the Supreme Court took the unusual step of announcing it will rehear the case. In a short order issued last week, the justices called for parties to be prepared to argue whether the 'intentional creation of a second majority-minority congressional district violates the Fourteenth or Fifteenth Amendments to the U.S. Constitution.'
The question posed by the court does not explicitly mention either the Voting Rights Act or Section 2. But the implication is fairly straightforward, according to UCLA law professor Rick Hasen: The court's conservative jurists could find that the Reconstruction era amendments — which were passed initially to protect newly-freed slaves — demand a 'colorblind' reading of the inherently race-conscious Voting Rights Act, and either strike it down or significantly limit its scope.
The court could find that 'the 14th and 15th Amendments should be read not as providing a way for Congress to protect Blacks and other minorities from discrimination in voting and elsewhere, but instead that it's a command that everything be race neutral,' Hasen, who has been critical of the court's erosion of the VRA, told Nightly. 'A kind of race neutral reading of the Constitution would potentially read out Congress's power to enact race conscious remedies to protect minority voters.'
Merely asking the question does not guarantee the court will scrap the practice of drawing majority-minority districts — Chief Justice John Roberts, who has generally looked to roll back the VRA over his career, was the surprise author of a majority opinion in 2023 that upheld a key provision. But at least one conservative justice has written recently that the law should be gutted, with Clarence Thomas writing in June that the court's previous rulings have placed 'the VRA in direct conflict with the Constitution.' The VRA has acted as a restraint in this hyper-partisan era of redistricting, particularly after the Supreme Court ruled in 2019 federal courts couldn't police so-called partisan gerrymandering. A universe without VRA-protected districts would allow mapmakers of all political persuasions to further push the bounds of remapping.
Beyond the Louisiana case, another significant challenge to Section 2 is making its way through the federal judiciary. The vast majority of Section 2 litigation has been initiated by private parties, such as individual citizens or civil rights groups. But in a case out of North Dakota, the conservative 8th Circuit ruled that a 'private right of action' does not exist and that only the federal government can bring these cases. That, in effect, would eliminate most of the enforcement of the VRA and leave the remaining trickle up to the whims of whatever administration is in the White House — particularly under the Trump administration, which has totally overhauled the Justice Department's Civil Rights Division. That ruling was stayed by the Supreme Court last month as an appeal is crafted. But that was over the objection of three of the conservative justices — Thomas, Samuel Alito and Neil Gorsuch.
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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