Louisiana v. Callais, argued in the Supreme Court on October 15, could have a devastating effect on voting rights and even on all civil rights protections. The oral arguments indicated a conservative majority that is likely to greatly weaken Section 2 of the Voting Rights Act. The open question is how far the Court will go and what this will mean for other civil rights laws.

Section 2 of the Voting Rights Act of 1965 prohibits state and local governments from having election systems or practices that discriminate against minority voters, including certain language minorities. Congress amended the Act in 1982 to make clear that proof of discriminatory effect (“disparate impact”) is sufficient for a violation; plaintiffs do not have to prove a racially discriminatory intent.

After the 2020 census, Louisiana, like most states, redrew its congressional districts. In 2022, the Louisiana legislature adopted a map with only one majority-Black district out of six congressional districts in the state, even though about a third of the state’s population is Black. A three-judge federal district court found this to violate Section 2 because the map disadvantaged Black voters in effect.

In response to the district court’s decision, the Louisiana legislature in 2024 adopted new congressional districts, with two of the six having majority-Black residents. A group of self-described non-minority voters sued, contending that the new map violated the Constitution’s Equal Protection Clause by using race too heavily. In Shaw v. Reno (1993) and Miller v. Johnson (1995), the Court held that the government cannot use race as a predominant factor in drawing election districts unless the plan survives strict scrutiny (the toughest constitutional test). The district court ruled in favor of the challengers, but the Supreme Court stayed that order, allowing the two majority-Black districts map to be used in the 2024 elections.

The Supreme Court granted review and had briefing and oral argument last term, but on June 27 announced it would not decide the case then. Instead, it called for a new briefing and reargument this term. Tradition is that the Court hands down decisions in argued cases by the end of June. 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.

Justice Clarence Thomas did something I have never seen before: he dissented from the Court putting the case over for reargument. He made clear that he would declare Section 2 unconstitutional. In his view, to avoid liability under Section 2, the government must take race into account to prevent a discriminatory effect against racial minorities. But using race in this way, he argues, itself violates equal protection. As he put it: “These cases put the Court to a choice: It may permit patent racial gerrymandering under the auspices of §2 compliance, or it may admit that, as the Court has construed the statute, a violation of §2 is insufficient to justify a race-based remedy. That decision should be straightforward.”

On August 1, the Supreme Court asked for briefing and argument on exactly that question: Is Section 2 unconstitutional because it allows liability based on proof of a racially discriminatory impact rather than discriminatory intent? The Court’s order stated: “The parties are directed to file supplemental briefs addressing the following question raised [in that brief]: Whether the State’s intentional creation of a second majority-minority congressional district violates the Fourteenth or Fifteenth Amendments to the U.S. Constitution.”

The potential implications of this are enormous. Declaring disparate impact liability under Section 2 unconstitutional would be a huge setback for voting rights. Many majority-Black and majority-Latino districts in the country exist solely because Section 2 of the Voting Rights Act focuses on results, not intent

The consequences would likely extend beyond voting. 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 claims. Many state civil rights laws do too. In fact, Justice Antonin Scalia raised this issue in a concurring opinion in 2009 in Ricci v. DeStefano, a case involving employment discrimination. He said that the Court was just  “postpone[ing] the evil day on which the Court will have to confront the question: Whether, or to what extent, are the disparate-impact provisions of Title VII of the Civil Rights Act of 1964 consistent with the Constitution’s guarantee of equal protection? . . [I]f the Federal Government is prohibited from discriminating on the basis of race,  then surely it is also prohibited from enacting laws mandating that third parties—e.g., employers, whether private, State, or municipal—discriminate on the basis of race.” 

If statutes allowing liability for disparate impact are deemed unconstitutional, the only way to prove a civil rights violation would be to prove that the decision-maker had a racially discriminatory intent. Proving this is very difficult. Legislators and policy-makers rarely openly express a racist motive. Also, we now know a great deal about how implicit bias and unconscious prejudice can shape outcomes even without explicit intent.

At the oral arguments on October 15, it appeared that the six conservative justices will vote to narrow or strike down disparate impact liability under Section 2. Justice Brett Kavanaugh expressed what seemed to be on many justices’ minds when he said: “[T]his Court’s cases in a variety of contexts have said that race-based remedies are permissible for a period of time, sometimes for a long period of time, decades in some cases, but … they should not be indefinite and should have a[n] end point.” He echoed a line from his concurrence in Allen v. Milligan (2023), where he remarked, “even if Congress in 1982 could constitutionally authorize race-based redistricting under § 2 for some period of time, the authority to conduct race-based redistricting cannot extend indefinitely into the future.”

Why, though, is it for the Supreme Court to decide that racism in voting is a thing of the past and that Section 2 of the Voting Rights Act is unnecessary? And how is the Court to evaluate this and make such a determination? It appears to be no more than the intuition of Justice Kavanaugh and his conservative colleagues.

During the oral arguments, Justice Ketanji Brown Jackson addressed this directly when she said that Section 2 “is not a remedy in and of itself” but is instead “the mechanism by which the law determines whether a remedy is necessary” – which, she said, may or may not involve the consideration of race. “And so that’s why it doesn’t need a time limit because it’s not doing any work other than just pointing us to the direction of where we might need to do something.”

There is enormous temptation for the Court, and for society, to declare victory over racism and to move beyond civil rights protections. In 1883, just 18 years after the Civil War ended, the Supreme Court struck down the Civil Rights Act of 1875, which had prohibited places of public accommodation from discriminating based on race. The Court said it was time to get past the need to remedy racial discrimination and stated: “When a man has emerged from slavery, and by the aid of beneficent legislation shaken off the inseparable concomitants of that state, there must be some stage in the progress of his elevation when he takes the rank of a mere citizen and ceases to be the special favorite of the laws, and where his rights as a citizen, or as a man, are to be protected in the ordinary mode by which other men’s are protected.”

By any measure, racial discrimination, in voting and beyond, remains today and demands legal safeguards. The Supreme Court declaring the problem solved will not make it so. Striking down Section 2 of the Voting Rights Act will only make matters worse.