The future of voting rights

Courtly Observations is a recurring series by Erwin Chemerinsky that focuses on what the Supreme Court’s decisions will mean for the law, for lawyers and lower courts, and for people’s lives.

Please note that the views of outside contributors do not reflect the official opinions of SCOTUSblog or its staff.

The Voting Rights Act of 1965 is one of the most important laws adopted in my lifetime. Long overdue, it substantially advanced the promise of the 15th Amendment in lessening racial discrimination in voting by, among other things, requiring federal oversight in jurisdictions that had a history of preventing people from voting based on race. But two matters pending on the Supreme Court’s docket portend potential significant changes in the law of voting rights and of civil rights more generally.

First, a recent order of the Supreme Court on Aug. 1 raises serious concerns that a crucial part of the Voting Rights Act of 1965 is in real danger of being struck down. In fact, the case, Louisiana v. Callais, to be argued on Oct. 15, could bring a radical undermining of many important federal and state civil rights laws.

For a half century, the Supreme Court has held that proving a violation of equal protection – that is, that the government has violated the Constitution by treating people who are otherwise similarly situated differently – requires a plaintiff to show that the government acted with a discriminatory purpose. Yet it is enormously difficult to do so. Rarely, any longer, do legislators express racist purposes in enacting laws. Also, social psychologists long have documented how implicit biases infect decision-making.

But statutes can provide more protection of rights and against discrimination than the Supreme Court has found in the Constitution. Many important civil rights laws do not require proof of discriminatory intent to establish a violation. Rather, they create liability when there is proof of a racially discriminatory impact – in other words, when a law or policy has a racially discriminatory effect on a particular group. For example, in 1971, the Supreme Court held that Title VII of the 1964 Civil Rights Act – which prohibits employment discrimination based on race, sex, or religion – is violated if there is proof of discriminatory impact. In 1982, Congress amended Section 2 of the Voting Rights Act – which prohibits state and local governments from having elections systems that discriminate against voters of color – so that proof of racially discriminatory impact is sufficient to establish a violation of the law.

The Trump administration has sought to undermine disparate impact liability. On April 23, President Donald Trump issued an executive order declaring that the federal government, under his administration, no longer would seek to enforce civil rights laws creating liability based on disparate impact. He stated: “It is the policy of the United States to eliminate the use of disparate-impact liability in all contexts to the maximum degree possible to avoid violating the Constitution, Federal civil rights laws, and basic American ideals.” The executive order directs all federal agencies to “deprioritize” enforcement of statutes and regulations that include disparate-impact liability, instructs all federal agencies to consider ways to repeal or amend regulations that impose disparate-impact liability, and requires the federal government to assess all pending investigations, lawsuits, and consent judgments that rely on a disparate-impact theory of liability and take appropriate action.

This, in itself, is a major lessening in the enforcement of federal civil rights laws. But the Supreme Court’s Aug. 1 order in Louisiana v. Callais raises the possibility of something far more drastic: the justices declaring disparate-impact liability unconstitutional. The court’s order instructed the litigants to address “[w]hether the State’s intentional creation of a second majority-minority congressional district violates the Fourteenth or Fifteenth Amendments to the U. S. Constitution.”

In other words, the court asked for briefing on the question of whether Section 2 of the Voting Rights Act is unconstitutional in allowing for disparate-impact liability.

Some background is necessary to connect the dots here. Originally, the Supreme Court had briefing and oral argument in Louisiana v. Callais during its 2024-25 term, but then, to everyone’s surprise, it did not decide the case. Instead, on June 27, it announced that the case was put over for new arguments during the 2025-26 term.

Tradition is that the court hands down decisions by the end of June (or at the latest early July) in the cases argued during the term. But occasionally the court has put cases over for reargument. It has done this before in very high-profile cases such as Brown v. Board of Education, Roe v. Wade, and Citizens United v. Federal Election Commission. This reflects that sometimes, in very consequential cases, the court chooses to take additional time for consideration. Louisiana v. Callais has the potential for being such a decision.

After the 2020 census, Louisiana, like almost every state, redrew its congressional districts. The new districts, adopted by the Louisiana Legislature in 2022, had one district with a population that was majority Black individuals out of six congressional districts in the state. In Louisiana, Black individuals comprise about a third of the population. A three-judge federal district court found that the new congressional map violated Section 2 of the Voting Rights Act because of the racially discriminatory impact in disadvantaging Black voters.

In response to the court’s decision, the Louisiana Legislature in 2024 adopted new congressional districts, with two of the six having majority Black individuals. A group of individuals who identified themselves as “non-African American” voters brought a challenge, contending that Louisiana had violated the Constitution’s guarantee of equal protection. In prior decisions, such as the 1993 case of Shaw v. Reno and the 1995 case of Miller v. Johnson, the court held that the government cannot use race as a predominant factor in drawing election districts unless it meets strict scrutiny – that is, unless it shows that this is necessary to achieve a compelling purpose. Applying these cases, the district court ruled in favor of the plaintiffs, finding that Louisiana violated equal protection in creating two districts where the majority of the residents were Black individuals.

The Supreme Court granted review, had briefing and oral arguments, but then put its decision off until the next term. In such instances, usually the reargument is announced with an order of the court and then an indication of what questions should be briefed and argued. But Justice Clarence Thomas wrote a separate opinion and said that the Voting Rights Act and the requirements of equal protection are “in tension.” According to Thomas, Section 2 of the Voting Rights Act requires that race be considered in drawing election districts to avoid impermissible racially disparate impact. But under Shaw v. Reno and Miller v. Johnson, it violates equal protection for race to be used as a predominant consideration in districting. 

The implications of Thomas’ position – if it is accepted by a majority of the court – are enormous. It would mean that disparate-impact liability under Section 2 of the Voting Rights Act would be unconstitutional. That, in itself, would be dramatic and change the nature of the political system in the United States. Since 1982, every level of government when engaged in drawing election districts has needed to make sure that there is not a racially disparate impact. Not only would this no longer be required, but if the court adopts Thomas’ view, no longer would it be allowed.

The implications could extend beyond that, however. Other federal laws, such as Title VII in prohibiting employment discrimination and the Fair Housing Act of 1968, also create liability based on disparate impact. Those laws could be constitutionally vulnerable as well.

For example, in 2009, in a concurring opinion in Ricci v. DeStefano, a case involving employment discrimination, Justice Antonin Scalia raised the issue of whether disparate-impact liability violates equal protection. He argued that the possibility of disparate-impact liability requires that race be considered, while he saw equal protection as precluding consideration of race in decision-making. Scalia spoke of “the war between disparate impact and equal protection.”

Ending disparate-impact liability would be an enormous change in the law and a devastating blow to civil rights in the United States. That is why Louisiana v. Callais is potentially so important.

And this is not the only threat to Section 2 of the Voting Rights Act that might be decided by the court next term. In Turtle Mountain Band of Chippewa Indians v. Howe, the U.S. Court of Appeals for the 8th Circuit ruled that only the United States government – and not private parties – can bring suits to enforce Section 2. This, too, would be a radical change in the law, as every other circuit to rule on the issue has allowed such suits, and the Supreme Court has heard many cases brought by private plaintiffs to enforce Section 2.

On July 24, the Supreme Court issued an order staying the 8th Circuit’s decision, to allow the Native American tribes and private plaintiffs the opportunity to seek Supreme Court review.  Thomas, as well as Justices Samuel Alito and Neil Gorsuch dissented, strongly indicating that at least three justices agree with the 8th Circuit.

At a time when there is a presidential administration that shows no inclination to enforce the Voting Rights Act, and that has expressly said it will not enforce federal laws allowing for disparate-impact liability, ending private lawsuits to enforce the statute would render it a nullity until there is a different president. The Supreme Court has not yet granted review in Chippewa Indians, but given the circuit split and the division among the justices, that seems likely. 

Together with Louisiana v. Callais, it could make this term critically important for voting rights and civil rights in the United States.