The Voting Rights Act of 1965 is among the most successful laws in US history. And it is one of the most morally righteous things the United States of America has ever done.
The law was America’s first serious attempt since Reconstruction to build a multiracial democracy, and it succeeded beyond even the most radical post-Civil War Republicans’ dreams. On the day President Lyndon B. Johnson signed the Voting Rights Act into law, Black voter registration rates in the Jim Crow haven of Mississippi were just 6.7 percent. Two years after the VRA became law, that rate was 60 percent.
So the Voting Rights Act, which the Republican justices are expected to take another bite out of during the Supreme Court’s new term, was a triumph. But it also rests on assumptions about how power is distributed in the United States that may no longer be true. The sad reality is that we may no longer be able to trust either the executive or the judicial branch with the powers given to them by the Voting Rights Act.
The central problem that the VRA targeted was illiberal states, ruled by white supremacists determined to cut Black Americans out of political power. In the mid-1960s, the federal government were the good guys on racial equality, led by its greatest champion to occupy the White House since President Ulysses S. Grant. In addition to the Voting Rights Act, Johnson signed laws banning race discrimination in employment, schools, hotels, restaurants, theaters, and housing.
So it made sense that his signature voting rights law centralizes power in the federal government. One key provision, which the Republican justices effectively repealed in 2013, required states with a history of race discrimination in elections to “preclear” any new election laws with federal officials in Washington, DC. Another, which is now before the Supreme Court in Louisiana v. Callais, allows federal judges to intervene when a state enacts a law that “results in a denial or abridgement of the right of any US citizen to vote on account of race or color.”
The central premise of the VRA, in other words, was that federal officials in both the executive and judicial branches could be trusted to pursue the goal of racial equality in elections — without regard to which political party would benefit if this goal became a reality.
It is tough to argue that this premise still holds today. The Trump administration gleefully wields power to punish Trump’s perceived enemies, and to selectively advantage Republicans. And the Republicans who control the federal judiciary are increasingly no different. How else can one explain Trump’s extraordinary winning streak in the Supreme Court?
Thus far, the Court’s Republicans have only sought to dismantle the Voting Rights Act. Chief Justice John Roberts, in particular, crusaded against the law for nearly half a century. As a young Reagan administration lawyer, he was a central player in a failed effort to convince Ronald Reagan to veto a 1982 law strengthening the VRA’s protections against race discrimination.
If Roberts and his fellow Republican justices strike down the VRA, their party is likely to benefit. The Callais case targets the Voting Rights Act’s restrictions on racial gerrymandering. Moreover, while racial gerrymandering is a separate legal concept from partisan gerrymandering (which occurs when the majority party draws maps to reduce representation by the minority party) the two concepts are intertwined. This is especially true in states with large numbers of Black voters. Because Black Americans overwhelmingly prefer Democratic candidates to Republicans, Republicans can often use race as a proxy to determine which voters they want to disempower.
Thus, in the likely event that the VRA’s restrictions on racial gerrymandering fall, it will be easier for red states — especially in the South — to eliminate districts that elect Democrats of color and replace them with districts that elect white Republicans. In the South in particular, many red state congressional delegations could become entirely white, as the Republican state legislature draws new maps that deny representation to (predominantly Black) Democrats.
But the justices could do something even worse. The Court’s Republican majority frequently applies one set of rules to abortion opponents, and another, more favorable set of rules to the religious right. They manipulate their own calendar to grant swift relief to Trump, while slow-walking decisions that might benefit Democrats.
The Voting Rights Act’s language is quite broad, and unscrupulous judges could easily manipulate it to partisan ends. In the future, the law may be worse than insufficient at protecting Americans from disenfranchisement, racial or otherwise. Partisan judges may use this very law, aimed at ending discrimination at the ballot box, as the justification for discriminating at the ballot box.
Democrats, in other words, may need to rethink whether it makes sense to centralize power over something as important as elections in a federal government that is increasingly controlled by illiberal Republicans eager to entrench their own rule.
How the Voting Rights Act targets racial gerrymandering right now
In the Callais case — the Voting Rights Act case that the Supreme Court will hear on October 15 — the current crop of justices will decide whether to overrule a 1986 case called Thornburg v. Gingles. That case set the framework for when federal judges should strike down legislative maps because they dilute minority representation — and it grew out of a political fight that Roberts lost.
In City of Mobile v. Bolden (1980), the Court ruled that plaintiffs alleging that a state law violates the VRA must show that the state legislature enacted that law with “racially discriminatory motivation.” That’s a tough bar to clear, because neither voting rights lawyers nor judges are mind readers. And, by the 1980s, states rarely enacted laws that explicitly discriminated on the basis of race in the blatant way many Southern states did during the Jim Crow era.
In response to Mobile, Congress amended the VRA to add its current language targeting any state law that “results” in someone being denied the right to vote because of their race. Thus, even if a Voting Rights Act plaintiff cannot prove that a particular state law was motivated by racism, the law may still violate the VRA if it has a negative impact on minority representation.
Although Roberts was one of several White House and Justice Department officials who tried to convince Reagan to veto this amendment, Reagan signed it into law in 1982.
To the Reagan era justices’ credit, the Supreme Court responded to this rejection of the Mobile decision with good faith attempts to implement the amended VRA. In Gingles, the Court considered what impact the 1982 amendments had on claims that a state’s congressional or state legislative maps unlawfully prevented voters of color from electing their preferred candidates. And the Court’s answer to that question was fairly ingenious.
Authored by Justice William Brennan, a liberal lion who Justice Antonin Scalia once described as “the most influential Justice of the twentieth century,” the Gingles framework is fairly complicated. But it primarily turns on two questions: 1) whether a state is residentially segregated by race; and 2) whether the states’ voters are racially polarized, meaning that voters of one race tend to vote for one party while voters of another race tend to vote for the other party.
The genius of Brennan’s approach is that it recognized that, when residential segregation and racial polarization coexist, they produce two separate political communities who will consistently vote for opposing candidates. And, in a state with separate political communities, the majority community can draw maps that leave the minority community with little, if any, representation in the legislature.
Thus, to ensure that both communities are represented, Gingles held that judges must sometimes redraw a state’s legislative maps if the state’s original maps dilute a minority community’s representation. Gingles also has a built-in sunset. As a state grows more integrated, and as its voters become less racially polarized, the VRA plays less and less of a role.
But, if the Republican justices overturn Gingles as expected, Gingles will sunset before many states have fully integrated. And those states could quickly return to the circumstances Brennan was trying to prevent, where white lawmakers intentionally draw maps that deny representation to non-white members of the other political party.
The 1982 amendments’ language — which, again, prohibits a state law that “results” in someone being denied the right to vote because of their race — is open-ended. The way the Court read that language in Gingles is certainly a permissible reading of the amended VRA. But it is also safe to say that the elaborate framework Brennan laid out in Gingles does not inexorably flow from the Voting Rights Act’s broadly worded text. Brennan, the Supreme Court’s great liberal, understood that the primary problems that 20th-century civil rights laws were supposed to address are racial segregation and racial exclusion from the political process. And so he read the VRA in light of this historical purpose.
But the amended VRA’s language is sufficiently broad that illiberal judges could easily read it to achieve much more nefarious ends.
Lots of state election laws will, at least at the margins, have a disproportionate impact on one race or another. A MAGA judge could simply read the Voting Rights Act to strike down laws that have even the slightest negative impact on white Republican voters, perhaps stating that they are the racial and political class that needs protection from discriminatory maps. Meanwhile, the same judge could uphold state laws that have much greater negative impacts on racial groups that favor Democrats. Such a judge might even order blue states to draw maps that maximize congressional representation for white Republicans.
Indeed, this scenario isn’t even particularly far-fetched, as the current Supreme Court often gives favorable treatment to Republicans and to causes that are favored by the Republican Party.
As I laid out in detail here, the Supreme Court’s Republican majority applied one set of rules to Joe Biden and a better set of rules to Donald Trump, and they applied one set of rules to abortion providers and another, less favorable set of rules, to abortion opponents. The Republican justices hand out favors to the religious right like indulgent parents dolling out candy to trick-or-treaters. And, of course, this is the Court which held that Donald Trump is allowed to use the powers of the presidency to commit crimes.
So they could just as easily apply the Voting Rights Act selectively to strike down state laws that supposedly burden white Republicans — while simultaneously blessing voting restrictions that target racial groups that tend to favor Democrats.
In fairness, the current crop of Republican justices have largely resisted this temptation. While their decisions limiting the Voting Rights Act often take extraordinary liberties with the Constitution and with the VRA’s text, they’ve largely attempted to shut down the Voting Rights Act rather than to weaponize it to benefit Republicans. The Republican justices’ decision in Shelby County v. Holder (2013), for example, effectively neutralized the VRA’s provision requiring certain states to preclear new election laws with federal officials. It didn’t green-light red state voter restrictions, while blocking progressive voting legislation in the blue state of Virginia.
But that could change overnight if Trump gets to fill more seats on the Supreme Court. While Justices Brett Kavanaugh and Amy Coney Barrett may not want to use the Voting Rights Act to lock their political party into power, it’s easy to imagine a Supreme Court staffed by MAGA judges like Andrew Oldham, James Ho, Aileen Cannon, and Emil Bove doing so.
For a window into how many younger Republican judges approach election cases, consider Oldham’s opinion in Republican National Committee v. Wetzel (2024), which was joined by Ho. Oldham claimed that an 1872 law setting the date for federal elections prohibits states from counting absentee ballots that are mailed prior to Election Day, but that arrive after that date — and that somehow no one noticed this prohibition for the previous 152 years.
Trump and his Republican Party have targeted mailed ballots because, in recent elections, Democrats were more likely to cast a ballot by mail than Republicans.
It’s difficult to even find a legal argument in Oldham’s opinion. But he does spend three whole sentences claiming that Congress’s decision to set an election date implicitly requires state election officials to know how many ballots they need to count by the end of that day. He cites no legal authority that supports this argument.
Wetzel shows just how far the next generation of Republican judges are willing to stretch the law to lock their party into power. If they can read a law setting an election date as a license to toss Democratic ballots in the trash, imagine what they could do with the open-ended language of the VRA.
The Voting Rights Act only works if we can trust the people who administer it. And it is potentially a very dangerous weapon in the hands of a hyperpartisan judiciary.
Federalism is (sometimes) good
The American left has historically been skeptical of federalism, the idea that some political power should be held by the states and not the federal government, and for good reason. It was a strong Union that defeated the Confederate states and ended slavery. And it was a strong federal government that enacted laws like the Voting Rights Act, which broke the back of Jim Crow.
More recently, Republicans have often used dubious appeals to federalism to attack liberal victories in Congress. The first major lawsuit seeking to repeal Obamacare, for example, was at least nominally rooted in an appeal to federalism. Republicans claimed that only the states, and not the federal government, can require people to buy health insurance — even though the federal government has long taxed Americans to pay for federal health insurance programs such as Medicare or Medicaid.
But federalism is also one of the most important checks on Trump’s attempts to consolidate his authoritarian rule. Trump, for example, is pressuring Republican states to redraw their congressional maps to lock Democrats out of power in the US House — something Texas has already done. But these red state gerrymanders can only do so much, because not all states are red. And blue states like California may enact their own gerrymanders to balance out the impact of the new Texas maps.
In an alternative version of the United States where congressional maps were drawn by Congress, by contrast, the GOP could redraw the maps in all 50 states to maximize their own power. At a minimum, states having the power to draw their own maps prevents Congress or the president from manipulating maps in Democratic-controlled states to Republicans’ benefit.
Similarly, another important check on federal power is that the US government does not actually employ very many law enforcement officers. And, under the Supreme Court’s “anti-commandeering” doctrine, the federal government is not allowed to take control over state or local police — or, at least, it cannot do so without the state’s consent. So this aspect of US federalism prevents Trump from transforming every beat cop in America into his own personal enforcement squad.
Right now, liberals and Democrats — at least at the federal level — can only watch in impotent horror as Trump tries to become an American Viktor Orbán. Democrats have little power in Congress. And the federal judiciary, which is supposed to be the Constitution’s last defense against an aspiring dictator, is led by a Supreme Court dominated by Republicans who’ve acted like sycophants toward Trump.
But, if American democracy survives the second Trump administration, and if Democrats do regain power in a future election, they must reckon with the question of whether too much power is concentrated in the federal government. Laws like the Voting Rights Act were written on the assumption that federal officials, and particularly federal judges, could be trusted to apply the law in a fair and nonpartisan way. But that assumption is no longer true. And the courts will only grow more partisan and more sympathetic to MAGA authoritarianism as Trump fills more seats on the federal bench.
Perhaps, by 2028, American voters will be so sick of MAGA Republicanism that they will give Democrats the power to do something even President Franklin D. Roosevelt couldn’t accomplish at the height of his power and popularity: packing the Court with more Democratic justices to dilute the votes of its current Republican majority. But, realistically, that is unlikely to happen. The federal judiciary is likely to be controlled by highly partisan Republicans for decades.
And that sad reality, at the very least, requires liberals and Democrats to confront the question of whether we can still have nice things — at least when those nice things depend on the premise that federal judges can be trusted.
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