Election Law Blog Essay

How Bad Could Things Get for the Voting Rights Act? The Supreme Court Just Gave Us a Preview.

The Voting Rights Act of 1965 (VRA) is an essential safeguard of the political equality of racial and ethnic minorities. Yet the Supreme Court has severely, and steadfastly, compromised the VRA’s effectiveness over the past decade. Through novel constitutional doctrines, strained statutory readings, and inconsistent application of procedural principles, the Court has placed the VRA’s future in doubt. The result is a less representative, less inclusive democracy.

In February, the Court sent shockwaves through the voting rights world when it abruptly stayed a district court decision holding that Alabama had violated the VRA. In explaining the decision to step in, Chief Justice Roberts and Justices Kavanaugh and Alito strongly signaled that the VRA, as conventionally applied in redistricting disputes, is in a precarious state.

Last month, the future trajectory of the VRA started coming into focus—and the picture is bleak. In Wisconsin Legislature v. Wisconsin Elections Commission, the Court’s conservative majority initiated a radical overhaul of four decades’ worth of established doctrine in yet another opinion rushed out without full briefing or oral argument.

The case involves Wisconsin’s state senate and assembly maps. After the state’s Democratic governor and Republican legislature came to an impasse, the Wisconsin Supreme Court stepped in and asked all parties to submit maps that adhered to a “least change” rule. A bipartisan majority of the court decided that the governor’s proposal best complied and adopted it. That map increased the number of assembly districts in which Black voters could elect their preferred candidate from six to seven. Because Milwaukee’s Black population grew between 2010 and 2020, the governor included this change to avoid violating the VRA.

Were those changes actually necessary to comply with the VRA? There’s a typical way to find out: a voter sues to challenge a new map for violating the Equal Protection Clause. The voter must show that the districting process was unduly race-based, and if it was, then the state must show a strong reason for its race-based districting; namely, to comply with the VRA. This presents the ultimate question of whether the districts are justified.

But here? The Supreme Court suspended the need for litigation, discovery, briefing, a trial, and appeal—shifting the burden of proof onto the Wisconsin Supreme Court, cutting right to the final question, and throwing out the maps under a new reading of the VRA that says the state is required to determine “whether a race-neutral alternative that did not add a seventh majority-[B]lack district would deny [B]lack voters equal political opportunity” (emphasis added).

This brief opinion offers three troubling insights into where the Court is taking the VRA.

1. The conservatives’ new test could systematically reduce VRA protection of minority representation.

Section 2 of the VRA protects minority communities against vote dilution by requiring districts where minority voters can elect their preferred candidates. To show that such an “opportunity district” is required, a plaintiff must prove that minority voters could constitute a majority in a reasonably compact district and that white voters in the area cohesively and consistently vote against minority-preferred candidates. If this threshold showing—“the Gingles test”—is satisfied, a court makes its final decision based on the “totality of the circumstances.”

But, what if multiple opportunity districts can be created? How many such districts are required? As the Court rightly noted at the start of its opinion, this largely depends on “whether the number of districts in which the minority group forms an effective majority is roughly proportional to its share of the population.”

Yet, immediately after citing this precedent, the Court started dismantling it. It deemphasized the importance of proportionality as a baseline and added a requirement that courts consider “race-neutral alternative[s]” as a new baseline. This shift radically tilts the field against minority voters.

Let’s consider the pivot away from proportionality in more detail.

In a 1994 case called Johnson v. De Grandy, the Court held that the VRA does not require creating as many opportunity districts as possible, because such “maximization” could give minority voters more than a proportional share of seats and go beyond ensuring equal opportunity. The Court emphasized the significance of proportionality but added a caveat: proportionality alone could not provide a “safe harbor” because the VRA requires courts to consider the totality of the circumstances. Writing separately, Justice O’Connor memorably summarized the Court’s holding: “proportionality … is always relevant evidence in determining vote dilution, but is never itself dispositive.”

In last month’s decision, the Supreme Court distorted De Grandy and misrepresented Justice O’Connor’s balanced summary by quoting only the second half of her pithy phrase: “The Court … makes clear that proportionality is never dispositive.”

After downplaying proportionality, the Court lifts up its own new requirement: considering “race-neutral alternative[s].” Yet, as Professors Nick Stephanopoulos and Jowei Chen have shown, “race-blind” redistricting would result in significantly fewer opportunity districts.

The consequence of this one-two punch to the doctrine is that the totality framework now seems more likely to push the number of opportunity districts down toward a lower “race-blind” baseline than up toward proportionality.

This is not only unjust—it’s nonsensical as a matter of law. In 1982, the VRA was amended to make clear that a jurisdiction could be liable for vote dilution even if mapmakers drew districts with pure motives. What mattered was whether a map resulted in unequal electoral opportunity, not whether it was intended to do so. The Court’s new rule mistakes a “race-blind” process with race-equitable results. In short, the conservatives have rewritten the law and ignored both the text and purpose of the 1982 amendments by smuggling an intent test back into the VRA.

2. The new test could sow chaos and confusion—and that may be the point.

In the February Alabama case, Justices Kavanaugh and Alito called the Court’s existing VRA doctrine “notoriously unclear and confusing.” If last month’s Wisconsin decision was an attempt to provide “clarity,” we’re in for a bumpy ride.

To start, by downplaying the role of proportionality and elevating a new race-blind inquiry, the Court in Wisconsin Legislature does more than stack the deck against minority voters: it forces states (and courts) to grapple with two non-dispositive baselines rather than one. And when proportionality and race-neutrality predictably diverge, how should states (and courts) decide which is required? The Court doesn’t say. Instead, it simply notes that this question requires an “‘intensely local appraisal’ of the challenged district.”

This brings us to the other major piece of the totality framework: an “analysis [of] several factors enumerated in the Senate Report on the 1982 amendments to the VRA.” This “intensely local appraisal” is nothing new in VRA jurisprudence. But what the Court fails to acknowledge is that devaluing proportionality as a guidepost leaves enormous discretion to individual judges and increases the odds that outcomes will be unpredictable at best or predictably partisan at worst.

Moreover, the intensely local appraisal required by the VRA is antithetical to a “race-blind” inquiry. The Senate factors tell courts to carefully examine, among other things, “the history of official voting-related discrimination in the state,” “the extent to which minority group members bear the effects of discrimination in areas such as education, employment, and health,” and “the use of overt or subtle racial appeals in political campaigns.”

How should lower courts determine when this race-conscious inquiry is sufficient to override the race-blind inquiry? And after litigants assemble a robust race-conscious record and a court produces a multi-hundred-page opinion determining that additional opportunity districts above this new baseline are necessary, will the Court’s conservatives simply substitute their own judgment in yet another slapdash shadow docket decision?

If all of this seems confusing and disheartening, you’re not alone. It’s almost as if the Supreme Court is preparing to say that the VRA itself—the “crown jewel” of the civil rights movement—is unconstitutional.


3. The new test points toward the conservative Justices’ ultimate goal: ending the proud legacy of the VRA not with a bang, but a whimper.

The conservative Justices have long evinced hostility towards race-conscious remedies, even when designed to rectify systemic discrimination. The worst-case scenario seemed to be that an emboldened Court would hold that race-conscious remedies violate the Fourteenth Amendment and strike down the VRA altogether.

But the decision in Wisconsin Legislature points to a potentially more pathetic demise: that the statute will be slowly drained of all its force, one disingenuous reinterpretation at a time.

Even the Fourteenth Amendment, which the Court has transformed into a tool to constrain the scope of the VRA, does not require “race-blind” redistricting (yet). So the notion that the VRA itself encourages race-blind redistricting as some kind of default setting is gob smacking.

Why would the Court do this? Why not just invalidate the VRA altogether?

To start, leaving the law technically in place while hollowing it out allows the Court’s conservatives to feign heroism. Striking down the VRA would be deeply controversial. But “saving” the VRA from invalidation through “narrowing” interpretations provides cover. Expect future caselaw heavy with chest-thumping about how the Court has exercised “judicial restraint” and honored the great history of the civil rights era.

Moreover, retaining a “VRA-in-name-only” validates the conservative Justices’ worldview. For Justices who imagine the country to be largely free of racial bias, what better proof than dwindling numbers of successful voting rights cases?

But most distressing is the possibility that the VRA’s reinterpretation will become a warning shot to Congress: “this far, and no further.” By purporting to save the VRA from unconstitutionality and—in a well-rehearsed ritual—arguing that any more expansive interpretation would “raise serious constitutional concerns,” the Court may hold the remnants of the historic law up as an admonition to those who would restore its full force.

The per curiam decision in Wisconsin Legislature is curt and cryptic. We read a great deal between the lines. If we are proved wrong, we will be the first to rejoice in our error. But the decision is no bolt in the dark. It is part of a story the Court has been telling for years. Disrupting that story is not impossible. But it will take fundamental changes to our system of representation. The kind of changes that come only with widespread mobilization and a renewed commitment to justice and equity. The kind of changes we haven’t seen since, well, 1965.