The U.S. Supreme Court’s conservative supermajority has left minority voters with limited tools for fighting racial discrimination in redistricting, after a landmark ruling that many legal experts say has made Section 2 of the federal Voting Rights Act practically impossible to enforce.
This week, the court allowed Alabama to use a congressional map that a lower court had found intentionally discriminates against Black voters. The ruling in Louisiana v. Callais, issued last month, has heightened concerns about the future of racial-minority representation in government — particularly in Southern states where voting is polarized between a white, Republican-leaning majority and a Black, Democratic-leaning minority.
“Today the bulk of Black people live in the states of the old Confederacy. And that is exactly where you’re seeing the worst types of retrenchment,” said Wilfred Codrington III, a professor of constitutional law at Yeshiva University’s Cardozo School of Law, in an interview with NPR.
In the month since the court’s ruling, voting rights advocates have turned to state-level voting rights acts as a partial alternative. About a dozen states have passed such laws, which offer anti-discrimination protections for racial-minority voters that go beyond the federal law. However, unlike the federal Voting Rights Act, these laws generally cover only state and local elections. No state with a unified Republican or divided government has enacted one, making it unlikely that bills introduced in the Deep South will become law.
Democratic lawmakers have recently advanced bills in states including Michigan and New Jersey. The Delaware John Lewis Voting Rights Act is set to be formally introduced Friday.
The state-level laws may face legal challenges. Just over a week after the Supreme Court’s Callais ruling, the conservative Public Interest Legal Foundation filed a federal lawsuit over Illinois’ voting rights act, arguing that the law is unconstitutional because it requires an improper use of race in state legislative redistricting. More lawsuits may follow.
In a social media post on X in April, Jesus Osete, principal deputy assistant attorney general for the Justice Department’s Civil Rights Division, appeared to signal that the Trump administration is monitoring this fallout. Osete responded to Maryland Democratic Gov. Wes Moore’s post about signing state voting rights act protections into law, in which Moore said: “Even if Washington won’t protect your vote, I will.” Osete replied: “Who’s gonna tell him?” The DOJ’s public affairs office did not respond to NPR’s request for comment.
Codrington expressed concern that enacted state voting rights acts may ultimately be weakened or struck down by the court. “I’m nervous that the Supreme Court may sort of have those in its crosshairs as well,” he said.
Some redistricting observers have raised the possibility that Democratic-controlled states may join Republican-controlled states in breaking up districts where minority voters have a realistic opportunity of electing their preferred candidate. For Democratic map drawers, that could allow them to spread minority voters who tend to support Democrats into other districts and try to gain additional seats in the U.S. House.
Nick Stephanopoulos, an election law professor at Harvard Law School, said partisan gerrymandering by Democrats does not have to come at the expense of racial-minority representation. “This tradeoff should not be present in big blue states like Illinois, New York, California and so on,” said Stephanopoulos, who wrote an upcoming Columbia Law Review article on the topic. “It should generally be possible to design maps that are more skewed in a Democratic direction, but that at least maintain current levels of minority representation.”
Stephanopoulos pointed to California’s new congressional map as an example to follow. Democrats drew the map to flip five Republican-held seats without eliminating any minority-opportunity districts. The Trump administration argued that the map is “tainted by an unconstitutional racial gerrymander,” but the Supreme Court ultimately allowed California to use it.
That redistricting strategy, however, would not address the weakening of protections for minority voters in Republican-controlled Southern states. “Only federal action would respond to the vacuum that’s left in the South,” Stephanopoulos said.
Any federal action is expected to take years, given the bipartisan support for minority-voter protections that has dissipated in Congress in recent decades. The path to a strengthened federal Voting Rights Act would likely require Democrats to regain control of both Congress and the White House.
“We will not rest until the John R. Lewis Voting Rights Advancement Act becomes the law of the land and we end the era of voter suppression in America once and for all,” Democratic House Minority Leader Hakeem Jeffries of New York said in a statement released hours after the Supreme Court issued its Callais ruling.
The court’s conservative supermajority, however, may prove to be the ultimate hurdle for a strengthened federal law, according to Stephanopoulos. “That’s why indirect approaches like tackling partisan gerrymandering might be more sensible right now,” he said.
During the Biden administration, the then-Democratic-controlled Congress was unable to pass national bans on partisan gerrymandering and mid-decade redistricting that were part of voting rights bills that could not surpass Republican opposition in a closely divided Senate.
Jeffries said in a MS NOW interview last month that passing voting rights protections and exploring “massive judicial reform, state by state and at the federal level” are among Democrats’ priorities if they win back the U.S. House this November.
Some election reformers are calling for structural changes in how voters elect House members. Supporters of replacing the current single-member, winner-take-all districts with a proportional representation system say the change could help ensure fairer representation of people of color and other minority voters. Such a major shift would require changing a federal law that currently bans it.
Codrington said it remains worthwhile for states and local communities to move ahead with any attempts for “some measure of fairness” in elections, whether through new state laws or redistricting strategies. “States are in this unique position to do some things,” Codrington said. “But we need a federal government to be involved and invested in this problem if we’re going to have any sort of wide promotion of democracy across the United States.”