There is one thing we can say for certain about the hysterical claims made in the weeks since the Supreme Court’s decision in Louisiana v. Callais that the majority “gutted” the Voting Rights Act (VRA) and is reimplementing “Jim Crow”: those claims are false and dishonest, intended to disguise the partisan — and patronizingly racist — objectives and motivations of the critics.
They believe the color of your skin delineates your political views and how you vote, and they want to use race as the determining factor in drawing up the boundary lines of legislative districts for one purpose, and one purpose only: to elect Democrats. The Court’s majority properly held that misusing race in such a manner violates the Equal Protection Clause of the Fourteenth Amendment — the one person, one vote standard — as well as the Fifteenth Amendment.
Both of those amendments were designed and written to stop racial discrimination. It is about time we lived up to those amendments in full measure. The only thing the majority “gutted” was the abusive, partisan misuse of the Voting Rights Act.
Amidst all of the inflammatory rhetoric from the denizens of the Left and their allies in the media, you may have lost track of what this case was about. After the 2020 Census, the Louisiana legislature redrew its six congressional districts with little change, once again including one district in which black voters were a majority. But in 2022, a federal judge told Louisiana that its failure to add a second black majority district was likely a violation of Section 2 of the VRA, 52 U.S.C. §10301. A second set of voters then sued, claiming that using race to draw up that second district violated the Equal Protection Clause.
The Supreme Court said they were right in a 6-to-3 decision.
Section 2 prohibits the “denial or abridgment of the right of any citizen” to vote “on account of race or color.” It is probably the most successful law ever implemented by Congress. When it passed in 1965, there was systematic discrimination being practiced against black Americans to prevent them from registering and voting in places like Alabama, Georgia, Mississippi, and, yes, Louisiana.
But the VRA ended those malicious practices. As Justice Samuel Alito points out in the majority opinion, “vast social change has occurred throughout the country and particularly in the South,” although you’d never know that from the critics who act like it is still 1965.
The machinations used to discriminate are all gone: “voting tests were abolished, disparities in voter registration and turnout due to race were erased, and African-Americans attained political office in record numbers,” as Alito notes. And a “full-blown two-party system has emerged,” including in those areas where the discrimination was the worst.
In fact, it is easier to register and vote today than at any time in our history, including online registration in many states. Racial discrimination that prevents anyone from registering or voting is extremely rare, almost nonexistent.
But with the disappearance of those barriers, Section 2 started being used by left-wing activists to claim that the votes of certain racial minority groups were being “diluted” if they couldn’t elect their “candidates of choice.” Section 2 began to be misinterpreted and misapplied not to stop actual racial discrimination, but to ensure that minority voters who align with the Democrat Party were guaranteed the ability to elect Democratic candidates.
In other words, it was used to secure electoral success based on political affiliation, but only for one side of the political aisle. There was, of course, no concern about the minority of Republican-aligned voters in blue states like Massachusetts who were unable to elect their “candidates of choice.”
As Alito wrote, Section 2 ensures that all voters — regardless of their color — have an equal “chance to achieve a desired result.” It “does not guarantee equal outcomes.” But that is how it was applied by federal judges, specifically the federal judge in Louisiana in 2022, who told the state it had to create a second black majority district that would guarantee that black voters could elect their candidate of choice.
The only evidence that Section 2 had been violated was evidence of intentional racial discrimination that had occurred in Louisiana before the VRA was passed in 1965. The plaintiffs offered no evidence of any current or even recent discrimination in the state. Moreover, the judge relied on the fact that blacks make up about a third of Louisiana’s population, and therefore, the judge reasoned, they were “entitled” to one-third of the congressional seats. But Section 2 bars such proportionality claims, explicitly providing that the VRA does not establish “a right to have members of a protected class elected in numbers equal to their proportion in the population.”
What the Supreme Court did in Callais was to reaffirm that Section 2 bans intentional racial discrimination in voting, which can be proven with evidence that raises a “strong inference” that such discrimination has occurred. It also quite properly updated the 40-year-old factors used to evaluate whether such discrimination occurred, including that to establish a Section 2 violation, evidence of discrimination must be based on “present-day intentional racial discrimination regarding voting,” not what happened decades ago.
Moreover, the Court warned lower-court judges that they must “disentangle race from politics” and ensure that when individuals are voting based on party affiliation, that is not confused with race. Otherwise, Section 2 will be abused by party activists who will repackage partisan gerrymandering as racial gerrymandering: “Failing to account for political considerations in redistricting … can allow plaintiffs to undo a State’s legitimate, nonracial decisions under the banner of § 2.”
Rather than gutting the VRA, this decision reinforces the validity of the Voting Rights Act. It says the VRA is to be used only to remedy racial discrimination in voting in the now increasingly rare instances where it occurs. The holding prevents Section 2’s misuse by partisans to achieve political objectives.
As Alito says, Section 2 “was designed to enforce the Constitution — not collide with it. Unfortunately, lower courts have sometimes applied this Court’s § 2 precedents in a way that forces States to engage in the very race-based discrimination that the Constitution forbids.”
Hopefully, that will now end.
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Hans von Spakovsky is a Senior Legal Fellow in the Edwin Meese III Institute for the Rule of Law at Advancing American Freedom. He is the former Counsel to the Assistant Attorney General for Civil Rights at the U.S. Department of Justice.
