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This week, the Supreme Court heard oral arguments in Louisiana v. Callais about the last remaining section of the Voting Rights Act, a civil-rights law designed to ensure that states could not get in the way of nonwhite citizens voting. The law was put in place to reverse Jim Crow–era policies that kept Black people out of southern politics. Over the decades, it expanded to protect Spanish speakers, Native Americans, disabled people, and minority voters all over the country.
The decision will likely hinge on Chief Justice John Roberts, who has been dubious about the Voting Rights Act for years. Based on the oral arguments, most court watchers concluded that the majority of justices were “skeptical” of the already weakened law. Justice Ketanji Brown Jackson gave the act its most elaborate and convincing defense, which soon might be transcribed and remembered as its obituary.
Our two guests this week—Stacey Abrams, a voting-rights activist and former candidate for Georgia governor, and the Atlantic staff writer Vann Newkirk—both have families who grew up in the South before the Voting Rights Act. Newkirk recalls that his great-grandmother could not vote until she was a grandmother, so a world without the Voting Rights Act is one he can easily imagine. But as Newkirk also points out, Americans without those family stories might not realize what they are about to lose. Most starkly, defanging the Voting Rights Act could encourage states to redraw districts in a way that shuts out minority voters with impunity.
Estimates show that the ruling could hand the House to Republicans, as Democrats could lose six to 19 seats, which Abrams warns could ensure “one-party rule” going forward. Will we easily slip out of this era we’ve come to take for granted, in which American democracy is at least theoretically accessible to all?
The following is a transcript of the episode:
President Lyndon B. Johnson: This right to vote is the basic right without which all others are meaningless. It gives people, people as individuals, control over their destinies.
Hanna Rosin: When Lyndon Johnson signed the Voting Rights Act in 1965, he called it “a triumph for freedom as huge as any victory won on any battlefield.”
For decades, the Voting Rights Act was reshaped and expanded, mostly by Congress. It became a kind of intricate machine that allowed the federal government to step in whenever minorities were not fairly represented in any state. Since the law passed, the number of nonwhite representatives in the House has gone up over tenfold. And the first Black president was elected.
It was effective, supported by both parties and thriving. Until it wasn’t.
I’m Hanna Rosin. This is Radio Atlantic. Wednesday the Supreme Court heard arguments in Louisiana v. Callais, about the state’s redistricting map. A group of self-labeled “non–African Americans” are challenging a new majority-minority district in Louisiana, claiming that it violates the Constitution.
The Court has already chipped away at parts of the act in recent years. This latest case involves Section 2, the last pillar of the Voting Rights Act.
The key question of the case is: Do the act’s measures to fix racial discrimination actually violate the equal protection and voting rights enshrined in the Fourteenth and Fifteenth Amendments? Does the crowning civil-rights law of the 1960s violate the crowning civil-rights laws of the 1860s?
Or, more concretely, as one of my guests put it:
Stacey Abrams: If you know that racial discrimination has existed in maps, can you use race to fix that?
Rosin: That’s Stacey Abrams, a voting-rights activist, lawyer, and two-time Democratic nominee for Georgia governor.
We don’t know how the Court will come down. But for Abrams, it’s easy to see what’s at stake:
Abrams: We will not have free and fair elections in this country going forward if they are permitted to strike down the Voting Rights Act, because what you are saying is that for the vast majority of people of color in this country, you will not be permitted to have access to a truly representative democracy.
Rosin: We will hear more from Abrams in the second half of the show. But first, staff writer Vann Newkirk, who has written about the Voting Rights Act, helps us think about the oral argument before the Supreme Court this week and what we can and can’t read from the justices. Vann, welcome to the show.
Vann Newkirk: Thanks for having me.
Rosin: Before we get to the case before the Court now, can you lay out: What was the basic aim and promise of the VRA?
Newkirk: So the VRA. It is 60 years old now, and was passed as a result of movement by African Americans in the South. And for a hundred years prior to that, they lived under the regime we know as Jim Crow.
And in the Jim Crow South, you had a bunch of different mechanisms that stopped African Americans from voting. You had poll taxes, you had literacy tests, you had grandfather clauses, and those were combined with other various forms of intimidation of closed-party primaries. You had states that had majority-Black populations or counties that had majority-Black populations in the South and had, for decades, zero Black registered voters.
So essentially you had a both one-race rule and a one-party rule throughout the South for about a hundred years.
And the Voting Rights Act was designed to counter that. It’s a very intricate system and it’s one that was designed to meet the constitutional requirements that you can’t discriminate based on race.
And so what these southern states did was create a bunch of proxies for race to create a bunch of wink-and-nod things that happened at the registrar’s office. And in order to fight those type of things, you got to be as clever as that system. So you have to create both a system that says: You can’t do the outright stuff. And we are going to watch, we’re going to be actively intervening in their elections policy.
Rosin: The “we” in that sentence being the federal government, which is important to know.
Newkirk: Yes. They created a list of districts that were the worst Jim Crow counties and states and said: You can’t pass any new election laws without clearing that with the Justice Department or the Supreme Court.
And in addition to that, the Voting Rights Act also had a bunch of mechanisms where people who were affected by any law that got through that net, they could challenge those laws, not just on the basis of somebody saying, I hate those Black folks over there, but on the effect that those laws have on the voting population.
Rosin: Right. So it’s not just intentional racism; it’s also effect-based racism, they call it. Like, There are no Black representatives here, so we have to do something about that.
Newkirk: Right.
Rosin: Did it work?
Newkirk: Well, that’s the question, isn’t it? I’d say it was a rather successful law when you compare it to the magnitude of what it was up against.
You had a part of this country that functionally had never had robust democracy, multiracial democracy. And immediately, overnight, you see thousands of people who could not vote, becoming registered, getting involved in elections.
You don’t have the election of Barack Obama in ’08 without the VRA. You don’t have the emergence of Black senators, which we now kind of take for granted. We didn’t have our first Black senators in lots of states until the last 30, 40 years.
And so you don’t have that; you don’t have what democracy looks like now without the VRA. I think there was a lot of ground still left to go with it.
But as far as being, you know, I think clever enough, powerful enough, and, had enough public will behind it, it was a remarkable piece. I, I keep using the past tense—
Rosin: (Laughs.) Not yet.
Newkirk: —a remarkable piece of legislation.
Rosin: So, and it wasn’t, like, 1965, it passed, the system was set up, it’s in place. It’s not, like, a piece of civil-rights history. It kept getting amended by Congress over the years, and strengthened, for the most part.
Newkirk: Right. You know, a lot of people think of a law as a thing that’s just on paper. It makes some regulations. The VRA is machinery. It creates the necessity for a bunch of different pieces of the DOJ, for example. They were supposed to go out and monitor elections in the South. So it creates new duties for the federal government, new positions for the federal government to fill, and really fills in the gaps of a lot of our democratic processes that were never quite spelled out.
So when it comes to how we deal with folks with disabilities, for example, a lot of that is wound up in the VRA. When it comes to how we deal with people who don’t speak English as a first language, that machinery comes from the VRA. When it comes to how we administer elections on reservations, a lot of that is bound up in the VRA. So it really does create—in a very decentralized system—it creates a lot of the things that we take for granted.
Rosin: So the act is evolving. Congress is strengthening it over the decades, but then in 2013, something shifts. What happens?
Newkirk: In 2013, we have this case called Shelby County v. Holder. When I said the VRA had that first part, where you had a bunch of counties and districts and states that were not allowed to change their voting laws without having them cleared by the federal government, this county was challenging that concept, known as “preclearance.” And, essentially, the Supreme Court, in a first, they agreed with the county, saying that, while it’s still possible discrimination exists—Chief Justice Roberts issued a now pretty famous, or infamous, decision saying that the country had changed and that we had moved past the point in time we were in, in 1965, that necessitated that preclearance.
So it essentially lets counties, districts, states that had been closely watched by the federal government—now, following that decision in 2013, they can do what they want. Until it’s challenged in court.
So the phrase most people like to use about what Shelby County v. Holder did to the VRA, is that it “defanged” it.
It got rid of, I think, the first line of defense, and what that did was create our current system, which is, over the past 12 years: You have to sue.
In order to fix a law that you think is discriminatory, it doesn’t have automatic oversight. You don’t have to submit to the federal government. You now have to go to court, and in many cases you have to go to court after the law has already taken place and potentially done its discriminatory or disenfranchising effects.
This has created what a lot of people, I think, in the field—myself included—have said is an inherent, you know, We’re heading towards a disaster with the VRA. Every single case that comes now towards the Court is a chance for the Court to come back and rule the rest of the VRA null and void. It’s an unstable system without that federal oversight. Essentially, every time we redistrict now, every time a county wants to pass a new voting-rights law, we go through the song and dance again and again. We send it up to the Supreme Court, and it rests on one person again to decide whether we are going to have a VRA or not.
Rosin: Since Shelby, the Court has heard a number of voting-rights cases. Most recently there was a case called Allen v. Milligan where voters sued Alabama for redistricting that reduced the number of Black voting districts. In that case, Roberts stood by Section 2 of the Voting Rights Act in a 5–4 decision. That was 2023.
This week, they heard a new case.
Chief Justice John Roberts: We will hear arguments first this morning in case 24-109, Louisiana v. Callais, and the consolidated case.
Rosin: In the Louisiana case, the state redistricted to satisfy the VRA, adding a second majority-minority district. In, response a group of self-identified “non–African American voters” sued.
You heard the oral arguments. What did you take away from them?
Newkirk: So the three justices everybody is watching are Kavanaugh and Barrett and Roberts, and I think most people’s simulations on how the Voting Rights Act might be saved involved Barrett and Roberts getting on board with the three liberal justices, either defending the redistricting map in Louisiana outright or having a narrow overturning.
Barrett seemed pretty amenable to keeping the VRA around. The other wild card, Kavanaugh, seemed to be really caught up on this idea—that, again, was advanced by Roberts in 2013—that the VRA and other race-based laws in this country have to have natural sunsetting elements to their enforcement. And seemed to be implying in his questioning that that sunset might’ve come for Section 2 of the VRA.
Justice Brett Kavanaugh: The issue, as you know, is that this Court’s cases in a variety of contexts have said that race-based remedies are permissible for a period of time, sometimes for a long period of time, decades, in some cases, but that they should not be indefinite and should have an end point.
Newkirk: So really, for me, it’s up to Roberts. After making the seminal decision in 2013, this is a legacy decision for him. And the one substantive question I thought Roberts gave was one where he asked the plaintiffs to defend or to talk about how this case fits with Milligan, the 2023 case.
Roberts: But it was a case in which we were considering Alabama’s particular challenge based on—it’s what turned out to be an improper evidentiary showing.
Newkirk: That, to me, signals—and I may be just doing some guesstimating—but it does signal to me that he is perhaps looking for ways to overturn Section 2 without conflicting with his own decision two years ago.
Rosin: So, make it fit into the precedent.
Newkirk: Yes.
Rosin: The logic in that question—potentially, we don’t know—is he’s trying to justify this decision as being consistent with prior decisions.
Newkirk: Right.
Rosin: I will just say we’re reading tea leaves here. We don’t know. Because he didn’t say very much, as you said. But Roberts has been writing and thinking about the VRA since he was a young lawyer. What do we know about Roberts’s history with the VRA, his intellectual position?
Newkirk: Well, we know, for pretty much his entire legal career before he became chief justice, he was involved in the conservative effort that existed before 2013 to weaken the VRA, to come out against things like the requirements to assist people who don’t speak English as a first language.
So he was a lawyer for many conservative efforts to piecemeal dismantle the VRA. You know, I think he knows better than anybody, probably, that the VRA cannot function—it’s kind of like a car, right? A car has all these different moving pieces, and a lot of them depend on other pieces to work. And if you start dismantling that car, it’s not going to work at 60 percent when you take out 40 percent of the parts. It’s going to stop working. And I think he knows that.
Rosin: So as we’re talking today, what do you think is the ultimate fate of the VRA?
Newkirk: Well, the ultimate fate. I think Section 2 is gone, whether it’s today or next year.
Rosin: Because the momentum is so strongly in this direction from Roberts’s past thinking, and there’s a majority that goes with him?
Newkirk: Section 2’s been a dead man walking for years. And, you know, I think this is probably going to be it.
But, hey, maybe it limps along another six, eight months. Again, I keep saying: This happens over and over again. Eventually, we get another map, it goes back to the Court, and we’re back at it again.
Thomas has been writing concurrences, again, since 2013, essentially saying that the VRA doesn’t even cover gerrymandering. So, you know, we’re there. And we’re in a very, like I said, unstable state where the Court is either going to have to decide to find a way to put some of this machinery back in the car, or to say it’s totaled.
Rosin: Hearing you say that, you say that casually—or we’ve been having a kind of legal conversation—but you started off by saying the VRA is what cemented, functionally, democracy as we know it now. Like, a multiracial democracy. So it’s not a small obituary.
Newkirk: It’s not. I’ve been covering this thing for as long as I’ve been here [at The Atlantic]. All 10 years. And, you know, obviously, I’m Black, I’d like to vote.
Rosin: (Laughs.) God, Vann.
Newkirk: (Laughs.) I would like my children to be able to vote. We live in Maryland, so maybe it’s not that big of a deal for us. But I’m from North Carolina and I lived in a preclearance county. So for me, this is a very real thing.
I like to tell people: Democracy is not as old as you believe it to be. My great-grandmother from Mississippi, who I knew very well. She was a grandmother before she was able to vote.
So it is that recent. You have people who were among the very first cohort of folks allowed to vote under the VRA who are still working today. It’s that recent. You know, we like to think of progress in America as this thing that just keeps building and building and building. But Black history is not really like that. And we’ve gotta watch out always for the times when we go backwards.
What you will see over the next five to 10 years—and I hope I’m wrong—but I think you’ll see a disengagement, actually, of the people who’ve been newly re-disenfranchised, let’s call it, from the process. And that is what worries me, if you study how Jim Crow came to be. Once enough people get the message that they are not supposed to be voters—that they’re not supposed to be citizens—a lot of people will find it, frankly, easier to survive by just accepting that reality, and trying to survive.
And I think that’s what we might be looking at, which is, you see lots of people, lots of young Black folks—whereas I was 18, you know, Obama was right when I was a kid in college—people are going to come of age in that system now where they’re being told by their federal government that you are not a full member of this society. And what does that do to the psyche? I think it’s something to watch.
Rosin: Vann, thank you for coming on the show and helping us mark this moment.
Newkirk: Thank you.
[Music]
Rosin: Okay, so Shelby eliminated Section 5. Callais may eliminate Section 2. After the break we hear from voting-rights activist Stacey Abrams about what a world without the Voting Rights Act might look like. How do the maps change? How does Congress change? How might life for a Black person in the South change?
[Break]
Rosin: Stacey Abrams, welcome to the show.
Stacey Abrams: Thank you for having me.
Rosin: Absolutely. So, can you lay out what you see the Court doing in this case and what its impact could be?
Abrams: They are trying to invert the intention of civil-rights laws under this presumption that we are now postracial.
This is a case that is arguing that Section 2 of the Voting Rights Act—which is the last major safeguard that protects voters of color from racially discriminatory political maps—this Section 2 would be struck down.
What that would mean is that racially discriminatory maps could happen everywhere. If you look at what just happened in Texas, what Texas did with their maps was intentionally target Black and brown voters to ensure that Latino voters had a diminished representation, that Black voters had even more of a diminished representation, and that their ability to, in the future, elect representatives that reflect their values would be almost impossible.
Because what this says is that not only can you use race to discriminate; you won’t have a cause of action to bring before the courts to fix it.
If this goes through, this gutting of Section 2 would directly cost up to 30 percent of the Congressional Black Caucus membership, and 11 percent of the Congressional Hispanic Caucus membership, their seats. And the reason this matters is that the way we get to pick our leaders—the people who are supposed to work for us, the people we pay taxes for—we presume that we will have the ability to participate in not only hiring them, but firing them.
And if we are not permitted full participation, then for a very, very strong portion of this country, being present here no longer means that your citizenship has its full power.
Rosin: You said the “gutting” of Section 2. That’s the case the Court is hearing now. What are the different options? What are the ways that this case could go?
Abrams: So here’s the argument. They are deciding if considering race to address proven racial discrimination in political maps can itself be treated as discriminatory. That’s the question.
If you know that racial discrimination has existed in maps, can you use race to fix that? And in this country, that has been the sole remedy that has proven to work. The argument is that considering race should be unconstitutional on its face, which makes no sense. But if they strike down Section 2, it would twist the Fourteenth and Fifteenth Amendments to essentially say that they are not designed to actually protect and safeguard against racially discriminatory redistricting.
This would essentially say you have a green light to do what you want. Because we know politicians often target minority communities when redrawing political maps, because they want to weaken the power of those votes.
If the Court strikes down Section 2, the consequences go beyond Louisiana. This means that from Texas, to Florida, to Georgia, to North Carolina, to Ohio, to Wisconsin—two states that also at one point were covered by the Voting Rights Act—that all of those states will be able to pass unfettered law to restrict access to the voting rights.
Rosin: I wanna break down those consequences, because let’s say the Court does take the broadest possible interpretation, which is: You can’t use race to make up these districts. First of all, where does that leave the Voting Rights Act as a whole?
Abrams: It is, for all intents and purposes, it’s pretty much dead, because Section 5 essentially said: Before you make changes that would have racial or discriminatory impacts, you have to run it past the courts. You have to get permission from the Department of Justice.
And if you gut Section 2 and you gut Section 5, for all intents and purposes, there is no longer a functioning Voting Rights Act in the United States.
Rosin: The political organization you founded, Fair Fight Action, released a report saying Republicans could redraw up to 19 House seats to favor their party. How important do you think the case would be to the makeup of Congress?
Abrams: It would transform Congress into a one-party rule.
Because most of the people of color who are elected to Congress, they tend to right now vote and tend to run as Democrats. And so we would basically become a one-party political system where millions of Americans are blocked from full representation simply because of who they are and where they live.
And to put it into really sharp context: 56 percent of Black people live in the South. The entire southern region would basically start to lose their ability to elect representation. I live in the state of Georgia. The Voting Rights Act is what forced Georgia into a more competitive space. And let’s be clear: Race is a proxy, but it is not the only way you win elections. But it does send very clear signals, and what we know is that this is a deeply cynical and intentionally harmful attempt to block voters from being able to pick electors who understand their story.
We would never, in the Midwest, do something that would preclude farmers from being able to vote for those involved in the agrarian economy. And yet we are saying that it is completely permissible to ignore a nation’s behavior and say that we are willing to block from full representation entire swaths of community because we simply don’t want to be held accountable for what has been done and what people are intending to do.
We will not have free and fair elections in this country going forward if they are permitted to strike down the Voting Rights Act, because what you are saying is that for the vast majority of people of color in this country, you will not be permitted to have access to a truly representative democracy.
Rosin: If it does fail—let’s say this passes and it does fail—what other remedies are there? Like, what other avenues to fight for fair representation, absent the Voting Rights Act?
Abrams: In theory, the idea would be, Well, you can just use local law to make it so, but let’s remember: Where do people of color largely live? Where have the results been largely guaranteed?
Those results have been predominantly in the South and in the West. Well, in the South, there is no possibility of getting the kind of nonpartisan decision-making mechanisms that other states can use, because most southern states do not allow you to put things on the ballot. Florida did for a while, and when it started to work, when Amendment Four passed and they were suddenly going to be compelled to re-enfranchise returning citizens, they changed the rules.
And so, across the South, where most Black and brown people live, across the South and the Southwest, there are no additional avenues. Congress has been that avenue. The federal government has been that avenue. Because let’s remember: Basically, the management of elections, by the Constitution, is accorded to the states. And the reason we needed the Voting Rights Act—the reason Section 5 was so vital—was that each state has the authority to manage its elections.
Therefore, you needed a federal law to compel states and local governments to actually do what was right by their people. Jim Crow was never a federal law. That was all state law. And so I think it’s really important for us to understand that the infrastructure of our voting rights accords to states that are hostile a responsibility, and we’ve had to rely on a federal government that was sympathetic to compel their behavior.
But if that federal government falls—if that sympathy dries up—then what we are left with is a hostility and an intentionality that is now backed by federal imprimatur. And that is why this moment is so dangerous for so many of us.
Rosin: But don’t you think that’s the likeliest possibility at this point, or a likely possibility?
Abrams: Absolutely. And that is why it’s so critical that we raise our voices now.
When you think about how authoritarianism works—and this is why I want us to go beyond. For anyone who says, well, maybe we shouldn’t use race. Let’s understand that race is, again, it’s always been a proxy. It’s always been a methodology for power. It’s always been a point of entry for denying rights, but it has never, in this nation’s history, stopped there.
And when authoritarianism is already speeding through our courts and our Congress and our states, when people can be kidnapped off of the streets and denied due process, when the power of the state can be turned against its people, it never stops with the most vulnerable, but it always starts there.
And so we have to be loud about this moment because our silence is treated as consent. Our silence is treated as permission, and the problem is our memories are short. We will forget in two years and four years what happened to make this so, but we will feel the consequences 10, 20, 30 years on.
Rosin: You mean we’ll feel the consequences in representation. Like who the representatives are and what voting districts look like?
Abrams: No, we will feel the consequences in the laws that are passed, in the way the laws are implemented, in the ways the laws are interpreted. Because—let’s be clear—these lines are used to draw who sits at your city-council meeting, who sits on your school board, who’s making the decision about how much you pay for your electric bill as data centers eat more and more of our electricity.
These lines decide who gets full participation. And so, again, it may begin with the question of who goes to Congress, but it applies to every single job that is subject to voting lines and voting districts, and all of the work they do.
Rosin: You’ve been in this fight a long, long time. Can you imagine a world—what would be the conditions where we wouldn’t need a Voting Rights Act? Since that’s something the Court brings up all the time.
Abrams: We wouldn’t need a Voting Rights Act if we had full participation and universal guarantees for basic voting rights in this country, which we do not have.
We have 50 different democracies operating in the continental United States, and that’s not including the territories. So every single state gets to decide how it wants to interpret its obligation.
If we had universal rules, if we had universal responsibility for nonpartisan gerrymandering, if we had universal access to voter registration, if we did not have arbitrary voter purging that almost unilaterally targets the most vulnerable communities, then yes, we would not need a Voting Rights Act.
But we’ve never done the work to make that possible.
We, in 1965, said, This is a good start, and then we stalled. And since that time, there has been a constant and intentional erosion of what that moment achieved, and now we’re living the consequences of that.
Rosin: Well, Stacey Abrams, thank you so much for joining us today and explaining that.
Abrams: Absolutely.
[Music]
Rosin: This episode of Radio Atlantic was produced by Kevin Townsend. It was edited by Claudine Ebeid. Erica Huang engineered, and Rob Smierciak provided original music. Sam Fentress fact-checked. Claudine Ebeid is the executive producer of Atlantic audio, and Andrea Valdez is our managing editor.
Listeners, if you like what you hear on Radio Atlantic, you can support our work and the work of all Atlantic journalists when you subscribe to The Atlantic at TheAtlantic.com/listener.
I’m Hanna Rosin. Thank you for listening.
The post If the Voting Rights Act Falls appeared first on The Atlantic.
