Five Easy Pieces: The Voting Rights Act

Last week’s decision in Louisiana v. Callais completes the gutting of the Voting Rights Acts of 1965. Here's a primer.

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Tuesday, May 5, 2026

Happy Cinco de Mayo!

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The Supreme Court’s decision in Louisiana v. Callais this week has effectively gutted the Voting Rights Act of 1965. What does that mean, and what are the implications?

1. The Right to Vote

Americans like to think of the right to vote as part of our national DNA, encoded in the Declaration of Independence and the Constitution. After all, what civil right is more important than the right to vote? Didn’t we declare independence over “no taxation without representation?”

In fact, both the Declaration and the Constitution were written in, and assumed, an America where only white male property owners had the franchise. It took the Civil War, and the 13^th, 14^th, and 15^th Amendments to the Constitution, to include blacks as free citizens and to extend to them the right to vote. (Subsequent interpretations extended those rights to Native Americans and other minority groups.) And it was not until the passage of the 19^thAmendment in 1920 that women were guaranteed the right to vote, and the 26^thAmendment in 1971 that 18-21 year olds were included in the franchise.

Notwithstanding these Constitutional provisions, voting rights were not quickly or uniformly granted to all Americans. Following Reconstruction, the southern states passed Jim Crow laws which restricted the rights of blacks to vote by making them, for instance, pass literacy tests or pay poll taxes. These laws suppressed both voter registration and voting among blacks and other “undesirable” groups.

2. The Voting Rights Act

As voting rights became part of the larger struggle for equality in the early 1960s, Congress responded in 1962 by passing the 24^th Amendment banning poll taxes and then, in 1965, by passing the Voting Rights Act.

(President Lyndon Johnson hands a Voting Rights Act signing pen to Dr. Martin Luther King, Jr., August 6, 1965.)

The VRA applied to redistricting as well as the conduct of elections, and contained two important enforcement mechanisms:

· Section 2 was a general ban on any discriminatory practice restricting the voting rights of protected groups.

· Section 5 required jurisdictions (states, but also local governments) that had a history of discriminatory behavior to submit any proposed changes to voting laws, rules or regulations to the Justice Department for review and approval before they could be implemented.

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3. Section 5 – Preclearance

The preclearance requirement in Section 5 applied to jurisdictions with a previous history of racial discrimination in voting rights, mostly in the Old South. Legal or regulatory changes that could have an impact on voting behavior in those jurisdictions had to be “pre-cleared” by the Justice Department. For years, the Justice Department itself took a lead role in advocating for electoral equality, but its processes allowed for input and, when necessary, legal challenges from voting rights and democracy advocates like the NAACP and the ACLU. In other words, Section 5 was working exactly as the Congress intended.

In 2013, the Supreme Court issued its opinion in Shelby County v. Holder, ruling that the scope of Section 5 – which jurisdictions were subject to it – was based on an outdated formula and was therefore unconstitutional. The decision eliminated Section 5 as an enforcement mechanism to protect voting rights.

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4. Section 2: Discriminatory Intent Vs. Discriminatory Effect

Section 2 of the VRA contained a sweeping prohibition on any restriction on voting rights:

“(2) No voting qualification or prerequisite to voting, or standard, practice, or procedure shall be imposed or applied by any State or political subdivision to deny or abridge the right of any citizen of the United States to vote on account of race or color.”

It left it to the courts to decide how to interpret the law. In 1980, the Supreme Court decided, in City of Mobile v. Bolden, that Section 2 required proof of discriminatory intent, not just of disparate discriminatory effects. This, of course, was a much higher burden.

Nope, said the Congress in its very next session:

“(a) No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which resultsin a denial or abridgement of the right of any citizen of the United States to vote on account of race or color.” 52 U.S. Code §10301(a).

In other words, an effects test with no requirement to prove discriminatory intent. And for 40 years, that was the way the law was interpreted.

However, in 2021 the Supreme Court decided, in Brnovich v. Democratic National Committee, that discrimination for purely partisan purposes was okay. This raised the bar on a claim based on racial discrimination under Section 2: if a discriminatory effect was motivated by partisan intent, then it might be acceptable. Thus began the slow death of Section 2.

(The Louisiana congressional districts — specifically, District 6 — struck down in the Callais decision.)

Five years later, in Callais v. Louisiana, SCOTUS reinstated the discriminatory intent test that was specifically rejected by the Congress after Bolden. As Justice Kagan said in her Callais dissent,” The upshot is that the majority, without any good reason, has overturned Congress’s studied determination—along with this Court’s precedents upholding it—about how to rectify racial inequalities in electoral politics.”

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5. Life After Callais

In the immediate term, the Callais decision has upended the primary elections this month in Louisiana. The state, now liberated to gerrymander a map whose effects are racially discriminatory, is in a jam: it is in the middle of primary season with the existing map that was struck down on Callais. Typically, SCOTUS has a 32-day waiting period before a ruling takes effect, but yesterday it waived the requirement to allow Louisiana to impose a different map in time for primaries later this month. Mind you, candidates had already filed in the pre-existing districts and absentee ballots has gone out. This is another chapter in the race to redistrict enough seats to preserve the GOP’s narrow margin in the House this November.

In the medium term, we can expect other states with GOP majorities to do mid-decade redistricting, taking advantage of their new freedom to discriminate. I expect Texas would be among these – yes, again, for the second time this decade.

In the long run, the legal architecture of redistricting and voting rights has been severely undermined over the last decade. Legislatures will draw and re-draw districts, using the latest election results to impose greater partisan advantage. It will require the Congress to reimagine and rewrite the Voting Rights Act to restore any of the vigor it once had, and to ban mid-decade redistricting. That probably cannot occur while Donald Trump is president, but must be a priority for the next Democratic President and Congress.

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(N.B.: My wise friends will challenge me: what makes you think Democrats will behave any more honorably than Republicans? To which I say: fair point. Let me put it this way: I know the GOP will game the system ruthlessly; I hope the Democrats won’t.)