Two justices, one quest: push to gut Voting Rights Act reaches final act | US voting rights

The ruling from the US supreme court destroying one of the last pillars of the 1965 Voting Rights Act (VRA) marks the end of a long and painstaking campaign to roll back civil rights legislation by two titans of the court’s rightwing majority, chief justice John Roberts and Samuel Alito.

Acting as an unspoken double act, the duo have chipped away at what has been called the crown jewel of the civil rights movement. Wednesday’s ruling in Louisiana v Callais is the fifth major supreme court decision authored by the two justices that have slowly but surely strangled efforts to protect the democratic rights of Black and other minority Americans.

The attack on section 2 of the VRA in this latest ruling eviscerates a critical tool that had been used for 40 years to prevent the political power of minority voters being diluted by largely Republican southern states in the drafting of electoral maps. The ruling finds that attempts to create a second electoral district in Louisiana that would give African American voters the chance to choose their own representatives proportionate to the state’s population, which is about one-third Black, was a form of “unconstitutional racial gerrymandering”.

The conclusion of the rightwing majority, voting 6-3 on ideological lines, overturns the clear will of Congress, laid down in the original 1965 statute and then overwhelmingly reaffirmed in later years. It was ironically done in the name of the equal protection clause of the US constitution which was designed with the opposite purpose in mind – to protect the interests of minority voters.

“This is the culmination of Roberts’ and Alito’s hostility toward the landmark Voting Rights Act that they have harbored since early on in their careers. They have been fully aligned and headed toward the same destination for years – eroding and ultimately destroying these vital protections,” said Lisa Graves, founder of True North Research and author of a recent book on Roberts, Without Precedent.

The tight focus – some might say obsession – of Roberts and Alito with voting rights over many years is highlighted by Elena Kagan in her dissenting opinion on Wednesday. Joined by fellow liberal-leaning justices Sonia Sotomayor and Ketanji Brown Jackson, she sets out how for over a decade the Roberts court “has had its sights set on the Voting Rights Act”.

It began in 2013, Kagan writes, with the ruling authored by Roberts, Shelby v Holder, which punched a giant hole in the VRA by ending federal oversight of electoral changes made by largely southern states. Since then the conservative majority has gone on to further weaken a statute that has been hailed as the most important tool for healing the wound of racial discrimination that has festered at the heart of American democracy.

Kagan refers to the VRA, powerfully, in the past tense.

“The Voting Rights Act,” she writes, “is – or, now more accurately, was – ‘one of the most consequential, efficacious, and amply justified exercises of federal legislative power in our nation’s history.’”

Roberts and Alito’s shared interest in, and assault on, voting rights legislation stretches back decades, a striking aspect of careers that have moved almost in parallel. The pair took their seats on the supreme court within four months of each other, Roberts in September 2005 and Alito the following January.

Both cut their legal teeth as “Reagan revolutionaries”, young zealots at the front lines of Ronald Reagan’s 1980s attempt to push back on what conservatives saw as the unbridled liberalism of the previous two decades. Both held senior positions within Reagan’s Department of Justice (DoJ).

Alito, who wrote Wednesday’s ruling, became focused on the issue of electoral maps and how to apportion political power when he was a student at Princeton. He became enthralled by the writings of a conservative supreme court justice, John Marshall Harlan, who took a contrary position on the issue of how to interpret the 14th amendment of the US constitution and its legendary “equal protection clause”.

In a 1964 case, the court’s then majority cited the clause when they ruled that legislative districts had to be drawn roughly proportionate to population size – a move which Harlan fiercely opposed.

Though the case did not focus on race, it was the start for Alito of decades of legal activism in which he pressed his own fierce opposition to attempts to ensure fairness and equity in the distribution of electoral power. His animosity towards voting rights legislation hardened with successive rulings that he and Roberts delivered from the highest court.

In 2018, Alito wrote Abbott v Perez, which made it much harder to prove that a state had committed unlawful racial gerrymandering in its carving up of electoral districts.

In 2021, Alito wrote Brnovich v Democratic National Committee which weakened section 2 of the VRA, the same pillar that has crumbled in this week’s ruling. Brnovich made it harder to challenge state voting laws determining how ballots are cast.

In 2024, he took a further big leap forward toward killing off the VRA altogether by authoring Alexander v South Carolina Conference of the NAACP. In it, Alito ruled that state legislatures had to be shown deference in cases where they claimed to be diluting the political representation of minority voters not for racial but for party political reasons.

Alito’s desire to award state lawmakers the presumption of “legislative good faith” was extraordinary given the long history of southern racism and duplicity in the framing of electoral maps. In the specifics of the Alexander case, South Carolina had shifted 30,000 Black residents into a new district, depriving them of a majority-minority seat while insisting the move had nothing to do with race.

Alito gave the state the benefit of the doubt.

“Even though South Carolina’s maps were plainly racially based, plainly designed to limit Black residents’ ability to vote in the district that they and their family, their forefathers and foremothers had voted in for years, Alito chose to present it as a partisan political move. It was having his cake and eating it,” Graves said.

Then on 2 March Alito made his most radical argument yet. Giving a foretaste of this week’s ruling, he penned a concurring opinion in a case out of New York.

In it he openly vented his antipathy towards taking race into account when it is used as a remedial factor to counter years of racial discrimination in the drawing of electoral maps. Tellingly, he wrapped “minority voters” in quote marks.

Alito argued that trying to ensure that minority voters could choose their own candidates was in itself a form of “unadorned racial discrimination, an inherently ‘odious’ activity that violates the 14th amendment equal protection clause”.

The logic was remarkable. Alito had turned the 14th amendment – one of the civil war amendments passed in the conflict’s immediate aftermath that bestowed civil rights on former enslaved people – on its head.

In this new interpretation, the equal protection clause was rent from its original intention of protecting minority rights, and used for the exact opposite: to block a move that would empower minority voters. The clause was now being wielded to shield from discrimination white Americans.

Alito allows himself flexibility in his legal thinking, calling himself a “practical originalist”. Though he professes the importance of sticking to the “original” wording of the constitution, being “practical” gives him an out.

“That would be the criticism of being a ‘practical originalist’ – it sounds like you’re an originalist when you like the result, but practical when originalism leads to a result you don’t like,” said Peter Canellos, author of a new book on Alito, “Revenge for the Sixties: Sam Alito and the Triumph of the Conservative Legal Movement.”

All of Alito’s years of opposition to voting rights legislation came to a head in Wednesday’s ruling. He makes a point of stating that Section 2 of the VRA – its last bastion – is still in place.

Such reassurances leave Kagan unconvinced. She laments in her dissent that minority voters are now left virtually unprotected from the actions of state lawmakers intent on diluting their power.

She writes: “If other states follow Louisiana’s lead, the minority citizens residing there will no longer have an equal opportunity to elect candidates of their choice. And minority representation in government institutions will sharply decline.”

Alito has put his name to this grave turning point in American history, as he most notoriously did to the Dobbs ruling in 2022 which overturned the right to an abortion in Roe v Wade. But there should be no doubt in this case: the fingerprints of Roberts are also all over this document.

The chief justice’s animus towards voting rights legislation also goes back decades. In 1981, when Roberts was working as a special assistant in Reagan’s justice department, he wrote a series of legal memos that are chillingly relevant to Wednesday’s ruling.

In them he began to develop the legal argument that efforts to remedy racial discrimination against minority voters was in itself racially discriminatory. Congress was in the process of reauthorising the VRA, and as it did so it amended the law to make it clear that it was unlawful for states to draw electoral maps that had the effect of diluting minority voters’ choices irrespective of any discriminatory intent.

Roberts went to town, writing no fewer than 25 memos that furiously argued that a discriminatory outcome was not enough – the racial motive of the map drawers also had to be demonstrated. He left it unstated that proving intent is a very difficult standard to meet.

Those 1981 memos concerned Section 2 of the VRA – the same provision that has been all but eviscerated this week. Back then, Roberts lost the argument: Congress went on to vote overwhelmingly for the clarification: maps that discriminated in outcome were unlawful irrespective of motive.

Over the past 45 years Roberts, who is renowned for playing the long game, has returned to the issue repeatedly. This week he finally got his result.

Senator Ted Kennedy had an uncanny sense of what was to come during Roberts’ confirmation hearings in 2005. “It seems that you were trying to undo the progress that so many people had fought for and died for in this country,” Kennedy said, referring specifically to voting rights.

Roberts’ first move once he joined the court was the historic ruling Shelby county v Holder that he authored in 2013. In it, he argued that stringent federal control over the electoral shenanigans of largely southern states – a system known as “pre-clearance” – was no longer needed, because “our country has changed”.

In a famous dissent, Ruth Bader Ginsburg countered that if the country had changed it was precisely because of the effectiveness of pre-clearance. She added that removing the safeguard was like “throwing away your umbrella in a rainstorm because you are not getting wet”.

Almost before the ink of his Shelby ruling was dry, southern states, led by Texas, began introducing changes to electoral maps and procedures making it harder and less impactful for minorities to vote.

RBG’s rainstorm had begun.

Shelby laid the foundations for later attacks on the VRA in which Roberts would largely hand the pen to Alito. There was one blip in this steady trajectory towards choking off the lifeblood of the legislation.

In 2023 Roberts wrote Allen v Milligan, a ruling which shocked supreme court observers because it ran counter to the chief justice’s long-held animus towards section 2. In it, he reaffirmed the basic framework of the law, finding against Alabama in the drawing of its electoral maps that granted Black voters, who made up a quarter of the state’s population, the majority in only one in seven congressional districts.

Never underestimate the strategic muscle of Chief Justice Roberts. Tucked away in the Allen v Milligan ruling is a line that was carefully chosen. It was a seed that this week sprouted into leaf.

Roberts wrote that though the ruling reaffirmed section 2, it did not “diminish or disregard the concern” that the provision “may impermissibly elevate race in the allocation of political power within the states”.

That concern has now burst to the surface. Roberts, joining his accomplice Alito, has ended decades of settled law.

In the process the two justices have not only scuppered the precedent that Roberts himself set only three years ago.

They have flipped key elements of the US constitution to achieve the exact opposite outcome to that which had been enshrined. And they have gone against the clear will of Congress which reaffirmed the Voting Rights Act almost unanimously on multiple occasions.

“The hubris of John Roberts and Samuel Alito!” Graves said. “They think they have the right to set aside the will of thousands of legislators, expressed over decades, to defend voting rights in America. It’s extraordinary, and fundamentally illegitimate.”