A Voting Rights Catastrophe

The Voting Rights Act of 1965 was an extraordinary achievement. Born of Black Americans’ blood, sweat, social movement organizing, and appeals to justice, it reflected a commitment by the federal government to an inclusive democracy—to the diversification of political leadership within the U.S. Congress and state legislatures, on county commissions, on school boards, and in every other representative arena. Its brilliance rested on its stark acknowledgment of the persistence of racial discrimination in American political life. It banned arbitrarily applied literacy tests that dampened Black voting, mandated that states with grotesque racial histories seek federal permission before changing their electoral rules, and precipitated the registration of millions of new Black voters. It helped extinguish Jim Crow and represented the promise of a multiracial American polity.

Yet on April 29, 2026, in Louisiana v. Callais, the U.S. Supreme Court’s six conservative Justices eviscerated what remained of the Voting Rights Act and laid bare how profound the country’s anxieties about racial diversification remain. The opinion is discreditable as law and calamitous as symbol.

Opponents of the Voting Rights Act have long caricatured its components. Section 5, the so-called preclearance provision, required states with a history of voting discrimination and abnormally low voter registration and turnout rates to seek approval from either the U.S. Attorney General or the U.S. District Court for the District of Columbia before changing their voting procedures. This novel obligation was deemed necessary given the persistence—and novelty—of the discrimination involved. Recalcitrance was so commonplace that Congress saw a prophylactic remedy as the only viable option. Opponents, however, portrayed this provision as coercive, as a gross violation of federalism and state sovereignty. This warped characterization nevertheless won the day in 2013 in Shelby County v. Holder, when the conservative wing of the Court gutted Section 5. Yet Chief Justice John G. Roberts, Jr., writing for the majority, made a point of noting that the decision had no bearing on the Voting Rights Act’s other central provision, Section 2. It is that provision that Callais dismantled.

Section 2 of the Voting Rights Act forbids any “standard, practice, or procedure … which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color.” As interpreted by the Court in a 1986 opinion called Thornburg v. Gingles and its progeny, Section 2—before Callais—required, in limited circumstances, the creation of “minority opportunity” electoral districts in which minority voters are likely to elect candidates of their choice. This requirement only arose when plaintiffs demonstrated (1) that a geographically compact electoral district in which a minority group could constitute a majority of the voting-age-population was conceivable, (2) that the relevant minority group was politically cohesive, and (3) that racially polarized voting existed.

The third prerequisite was crucial. That is, a successful Gingles claim required proof that white voters consistently preferred different candidates from minority voters. Once these three prerequisites were satisfied, courts would engage in a more probing “totality of the circumstances” inquiry to assess the nature of race relations in the jurisdiction and ultimately determine whether the creation of a minority opportunity district was warranted. Importantly, Section 2 plaintiffs were under no obligation to show discriminatory intent on the part of the mapmakers; it was enough to establish that the electoral arrangement at issue resulted in the enduring marginalization of minority voters. Across decades, Section 2 lawsuits were remarkably successful at increasing minority political representation, undergirding the growth of the congressional Black and congressional Hispanic caucuses and facilitating the diversification of state and local electoral bodies.

Again, as with Section 5, opponents of the Voting Rights Act intentionally mangled the details of this regime. The demandingness and particularity of the Section 2 inquiry was ignored, with antagonists, including Justice Antonin Scalia, demeaning it as an unwarranted racial entitlement program. In a perverse reframing, its remedial aspirations were slandered as themselves discriminatory, as violative of a fictional “colorblind Constitution” that, opponents of the Voting Rights Act claim, precludes the government from considering race at all in its decision-making. Tragically, although not surprisingly, this caricatured version of Section 2 informs the Callais majority.

Justice Samuel A. Alito’s majority opinion is as offensive as it is wily. It purports to offer a saving construction of Section 2 that ensures its compliance with the Fifteenth Amendment, seeking to leaven the statute for the sake of preserving it. This faux modesty simply adds insult to injury. In short, the majority reasons that because the Fifteenth Amendment—which is the constitutional basis of the Voting Rights Act—prohibits the intentional denial or abridgement of the right to vote, then Congress, when legislating to enforce the Fifteenth Amendment, may similarly remedy only intentional discrimination. Constitutional law mavens might observe how the majority sneakily, and without explanation, transplants Boerne v. Flores’s “congruence and proportionality” test to the Fifteenth Amendment context. That significant move aside, the imposition of an intent requirement on Section 2 plaintiffs incontestably contradicts congressional intent.

This backdrop animates the majority’s statutory overhaul. The first Gingles prerequisite—requiring minority plaintiffs to establish the possibility of majority status in a reasonably configured district—is amended in Callais with two additional conditions, each of which renders Section 2 a nullity. The first is that plaintiffs introduce an alternative, “illustrative” district map that does not use race as a districting criterion, as opposed to other criterion such as compactness and contiguity. In other words, minority plaintiffs are prohibited from even considering race at Gingles’s first step. One should be forgiven for finding this new condition conceptually baffling. As Justice Elena Kagan points out in her dissenting opinion, “assuming the majority means to bar plaintiffs from taking account of race when showing how a majority-minority district could be created, it is both incoherent and inconsistent with Section 2 and Gingles.”

The second new condition, even if not confounding, is Section 2’s death knell. It obligates plaintiffs, in submitting an illustrative map, to “meet all the State’s legitimate districting objectives, including traditional districting criteria and the State’s specified political goals.” This condition is presented as a necessary means of disaggregating racial motivations—which are impermissible—from political motivations—which are permissible in the wake of Rucho v. Common Cause, which found partisan gerrymandering claims to be nonjusticiable in federal courts. Of course, in many parts of the country, race and partisanship are inextricably intertwined, making it virtually impossible to isolate the racial intent of mapmakers. The implications of this condition are especially profound in an era when large factions of the Republican Party are eager to eliminate minority legislative districts altogether. Pre-Callais, the brazen breakup of minority districts would have been verboten; post-Callais, such efforts are immunized as politics as usual. And only the willfully ignorant could elide the potential consequences of the decision. Justice Samuel Alito is not willfully ignorant; he is the willing handmaiden of those who seek to scale back minority representation to an extent not seen since Reconstruction.

The majority opinion in Callais contains additional deflating components. At Gingles step three, plaintiffs must now control for party affiliation in proving racial bloc voting. And the totality of the circumstances inquiry now turns on present-day intentional racial discrimination. In truth, these judicial contrivances are unlikely to matter much given the majority’s handiwork to Gingles step one. Simply put, and lamentably, Section 2 lawsuits are now a historical artifact.

History will judge the Roberts Court’s demolition of the Voting Rights Act. Shelby County was prologue. Callais is epilogue. It is a contemptible, antidemocratic decision that, one hopes, will ultimately join the anticanon.

Joshua Sellers is a law professor at the University of Texas at Austin School of Law.