MA Rothman takes us on a tour of the Voting Rights Act (VRA). The net effect of various decisions and actions over the years was to create a racial spoils system. When people get used to preferential treatment, equal treatment seems like discrimination.
The Supreme Court of the United States ruled 6-3 in Louisiana v. Callais that drawing congressional districts predominantly on the basis of race violates the Equal Protection Clause of the Fourteenth Amendment. Justice Alito wrote the majority. Justices Kagan, Sotomayor, and Jackson dissented. The Florida House passed +4 GOP seats 83-28 the same week. Florida Senate followed 21-17. House Minority Leader Hakeem Jeffries called the Supreme Court 𝘪𝘭𝘭𝘦𝘨𝘪𝘵𝘪𝘮𝘢𝘵𝘦 and accused six justices of 𝘢𝘪𝘥𝘪𝘯𝘨 𝘢𝘯𝘥 𝘢𝘣𝘦𝘵𝘵𝘪𝘯𝘨 𝘤𝘩𝘦𝘢𝘵𝘪𝘯𝘨 in U.S. elections.
Eight days. The political map of the American South just changed for the first time in 60 years.
𝐓𝐨 𝐮𝐧𝐝𝐞𝐫𝐬𝐭𝐚𝐧𝐝 𝐰𝐡𝐚𝐭 𝐣𝐮𝐬𝐭 𝐡𝐚𝐩𝐩𝐞𝐧𝐞𝐝, 𝐲𝐨𝐮 𝐡𝐚𝐯𝐞 𝐭𝐨 𝐮𝐧𝐝𝐞𝐫𝐬𝐭𝐚𝐧𝐝 𝐰𝐡𝐚𝐭 𝐭𝐡𝐞 𝟏𝟗𝟔𝟓 𝐕𝐨𝐭𝐢𝐧𝐠 𝐑𝐢𝐠𝐡𝐭𝐬 𝐀𝐜𝐭 𝐚𝐜𝐭𝐮𝐚𝐥𝐥𝐲𝐰𝐚𝐬, 𝐰𝐡𝐚𝐭 𝐭𝐡𝐞 𝟏𝟗𝟖𝟐 𝐚𝐦𝐞𝐧𝐝𝐦𝐞𝐧𝐭𝐬 𝐝𝐢𝐝 𝐭𝐨 𝐢𝐭, 𝐚𝐧𝐝 𝐡𝐨𝐰 𝐃𝐞𝐦𝐨𝐜𝐫𝐚𝐭𝐬 𝐬𝐩𝐞𝐧𝐭 𝐟𝐨𝐮𝐫 𝐝𝐞𝐜𝐚𝐝𝐞𝐬 𝐜𝐨𝐧𝐯𝐞𝐫𝐭𝐢𝐧𝐠 𝐚 𝐜𝐢𝐯𝐢𝐥-𝐫𝐢𝐠𝐡𝐭𝐬 𝐬𝐭𝐚𝐭𝐮𝐭𝐞 𝐢𝐧𝐭𝐨 𝐚 𝐠𝐮𝐚𝐫𝐚𝐧𝐭𝐞𝐞 𝐨𝐟 𝐩𝐞𝐫𝐦𝐚𝐧𝐞𝐧𝐭 𝐛𝐥𝐚𝐜𝐤-𝐃𝐞𝐦𝐨𝐜𝐫𝐚𝐭𝐢𝐜 𝐥𝐞𝐠𝐢𝐬𝐥𝐚𝐭𝐢𝐯𝐞 𝐬𝐞𝐚𝐭𝐬.
𝟏𝟗𝟔𝟓 — 𝐓𝐇𝐄 𝐎𝐑𝐈𝐆𝐈𝐍𝐀𝐋 𝐕𝐎𝐓𝐈𝐍𝐆 𝐑𝐈𝐆𝐇𝐓𝐒 𝐀𝐂𝐓
Lyndon Johnson signed the VRA on August 6, 1965, three weeks after Bloody Sunday in Selma. The bill was civil-rights legislation in the original sense — a federal-supremacy override of the Jim Crow apparatus that had systematically denied black Americans the right to vote across the Deep South. The architecture had three pillars:
Section 2 banned voting practices 𝘸𝘩𝘪𝘤𝘩 𝘳𝘦𝘴𝘶𝘭𝘵 𝘪𝘯 𝘢 𝘥𝘦𝘯𝘪𝘢𝘭 𝘰𝘳 𝘢𝘣𝘳𝘪𝘥𝘨𝘦𝘮𝘦𝘯𝘵 𝘰𝘧 𝘵𝘩𝘦 𝘳𝘪𝘨𝘩𝘵 𝘰𝘧 𝘢𝘯𝘺 𝘤𝘪𝘵𝘪𝘻𝘦𝘯 𝘰𝘧 𝘵𝘩𝘦 𝘜𝘯𝘪𝘵𝘦𝘥 𝘚𝘵𝘢𝘵𝘦𝘴𝘵𝘰 𝘷𝘰𝘵𝘦 𝘰𝘯 𝘢𝘤𝘤𝘰𝘶𝘯𝘵 𝘰𝘧 𝘳𝘢𝘤𝘦 𝘰𝘳 𝘤𝘰𝘭𝘰𝘳. The 1965 text was clear: the violation was disparate treatment, not disparate outcomes.
Section 4 established the formula identifying which jurisdictions had a documented history of voting-rights violations.
Section 5 imposed federal preclearance — covered jurisdictions had to submit voting-procedure changes to the Department of Justice or a three-judge federal court for approval before implementation.
The 1965 VRA was a temporary statute. It was set to expire after five years. Section 5 preclearance was understood to be an emergency measure, justified by the active resistance of Southern state governments to the Fifteenth Amendment.
Let it be noted that the VRA was not set to expire after five years. Just certain portions of it. As noted, in the 60’s there were still some states that actively resisted the idea of equal rights for all. The need to control those people was expected to end over time.
𝟏𝟗𝟖𝟐 — 𝐓𝐇𝐄 𝐀𝐌𝐄𝐍𝐃𝐌𝐄𝐍𝐓𝐒 𝐓𝐇𝐀𝐓 𝐈𝐍𝐕𝐄𝐍𝐓𝐄𝐃 𝘋𝘐𝘚𝘗𝘈𝘙𝘈𝘛𝘌 𝘐𝘔𝘗𝘈𝘊𝘛 𝐈𝐍 𝐕𝐎𝐓𝐈𝐍𝐆
In 1980, the Supreme Court ruled in City of Mobile v. Bolden that Section 2 prohibited only intentional racial discrimination, not practices that produced disparate racial outcomes without intent. The black-electorate-mobilization advocacy community responded by pushing Congress to amend Section 2 in 1982 to overturn Bolden.
The 1982 Amendments rewrote Section 2 to prohibit any voting practice that 𝘳𝘦𝘴𝘶𝘭𝘵𝘴 𝘪𝘯 a denial of voting rights — regardless of intent. The legislative history specifically named 𝘥𝘪𝘴𝘱𝘢𝘳𝘢𝘵𝘦 𝘪𝘮𝘱𝘢𝘤𝘵 as the new standard. From 1982 forward, a state could violate Section 2 by maintaining a districting scheme that produced fewer minority-elected officials than minority population share would suggest, even if the state had no discriminatory intent.
Sen. Bob Dole brokered the compromise. Sen. Orrin Hatch warned, on the Senate floor, that the amendment would 𝘳𝘦𝘲𝘶𝘪𝘳𝘦𝘳𝘢𝘤𝘦-𝘣𝘢𝘴𝘦𝘥 𝘥𝘪𝘴𝘵𝘳𝘪𝘤𝘵𝘪𝘯𝘨 𝘪𝘯 𝘱𝘦𝘳𝘱𝘦𝘵𝘶𝘪𝘵𝘺. Hatch was right.
Disparate impact. This is the phrase that has torn this country apart. If a sufficiently large business does not have x number from this category, y number from that category, etc. then by definition they are been discriminatory in their hiring or admissions practices.
This resulted in people being admitted to elite universities that did not have the necessary abilities to complete the work required. It led to people being put into jobs where they lacked the necessary skills to satisfactorily execute those jobs.
Now this is not to say that no pushing needed to be done to change how the country worked back in the mid 20th century. This was especially true in the South. But disparate impact became a cudgel that ignored merit and the country suffered as a result.
This leads to an obvious question. If disparate impact was such a good thing, why wasn’t it applied to representation of a state in Congress. If a state had 40% registered voters in one party, why wasn’t a state required to have 40% of its House reps from that party?
What about professional sports? Why weren’t appropriate percentages of females required to be in the NBA, NFL and major league baseball?
𝟏𝟗𝟖𝟔 — 𝐓𝐇𝐎𝐑𝐍𝐁𝐔𝐑𝐆 𝐯. 𝐆𝐈𝐍𝐆𝐋𝐄𝐒 𝐈𝐍𝐒𝐓𝐈𝐓𝐔𝐓𝐈𝐎𝐍𝐀𝐋𝐈𝐙𝐄𝐒 𝐓𝐇𝐄 𝐍𝐄𝐖 𝐒𝐄𝐂𝐓𝐈𝐎𝐍 𝟐
Thornburg v. Gingles was the first Supreme Court case interpreting the 1982 amendments. The Court created the 𝘎𝘪𝘯𝘨𝘭𝘦𝘴𝘧𝘢𝘤𝘵𝘰𝘳𝘴:
1. The minority group is sufficiently large and geographically compact to constitute a majority in a single-member district.
2. The minority group is politically cohesive.
3. The white majority votes sufficiently as a bloc to enable it to defeat the minority’s preferred candidate.If those three conditions are met, the state must draw a majority-minority district to comply with Section 2. The framework operationalized racial gerrymandering as a federal mandate.
…
This was the Faustian bargain of 1980s VRA jurisprudence: the Democratic Party got guaranteed black congressional representation. The Republican Party got a structural advantage in the surrounding districts. Both parties benefited. Black voters became permanent residents of 𝘨𝘩𝘦𝘵𝘵𝘰 𝘥𝘪𝘴𝘵𝘳𝘪𝘤𝘵𝘴 — a term Justice Sandra Day O’Connor used in Shaw v. Reno (1993) to describe the resulting maps.
This was a ridiculous approach to the alignment of House districts. During the period from 1993 through 2013, the Court tried to “fix” this. However, there is no fix that avoids the fact that this was not equal treatment under the Constitution.
There were five cases that were reviewed by the Court. Each of the first four resulted in slightly less ridiculous formations of House districts. Finally in 2013, Section 5, which required pre-clearance from the DOJ, was dismantled. The data used for this was from the 1960’s. However, the disparate-impact portion survived. As Justice Thomas noted, “one cannot end discrimination, by discriminating.”
𝟐𝟎𝟐𝟔 — 𝐋𝐎𝐔𝐈𝐒𝐈𝐀𝐍𝐀 𝐯. 𝐂𝐀𝐋𝐋𝐀𝐈𝐒: 𝐓𝐇𝐄 𝟔-𝟑 𝐑𝐄𝐒𝐄𝐓
Three years after Milligan, the Supreme Court reversed course. In Louisiana v. Callais, decided 6-3 with Alito writing the majority, the Court held:
𝘉𝘦𝘤𝘢𝘶𝘴𝘦 𝘵𝘩𝘦 𝘝𝘰𝘵𝘪𝘯𝘨 𝘙𝘪𝘨𝘩𝘵𝘴 𝘈𝘤𝘵 𝘥𝘪𝘥 𝘯𝘰𝘵 𝘳𝘦𝘲𝘶𝘪𝘳𝘦 𝘓𝘰𝘶𝘪𝘴𝘪𝘢𝘯𝘢 𝘵𝘰 𝘤𝘳𝘦𝘢𝘵𝘦 𝘢𝘯 𝘢𝘥𝘥𝘪𝘵𝘪𝘰𝘯𝘢𝘭 𝘮𝘢𝘫𝘰𝘳𝘪𝘵𝘺-𝘮𝘪𝘯𝘰𝘳𝘪𝘵𝘺 𝘥𝘪𝘴𝘵𝘳𝘪𝘤𝘵, 𝘯𝘰 𝘤𝘰𝘮𝘱𝘦𝘭𝘭𝘪𝘯𝘨𝘪𝘯𝘵𝘦𝘳𝘦𝘴𝘵 𝘫𝘶𝘴𝘵𝘪𝘧𝘪𝘦𝘥 𝘵𝘩𝘦 𝘴𝘵𝘢𝘵𝘦’𝘴 𝘶𝘴𝘦 𝘰𝘧 𝘳𝘢𝘤𝘦 𝘪𝘯 𝘤𝘳𝘦𝘢𝘵𝘪𝘯𝘨 𝘚𝘉8. 𝘛𝘩𝘢𝘵 𝘮𝘢𝘱 𝘪𝘴 𝘢𝘯 𝘶𝘯𝘤𝘰𝘯𝘴𝘵𝘪𝘵𝘶𝘵𝘪𝘰𝘯𝘢𝘭 𝘨𝘦𝘳𝘳𝘺𝘮𝘢𝘯𝘥𝘦𝘳, 𝘢𝘯𝘥 𝘪𝘵𝘴 𝘶𝘴𝘦 𝘸𝘰𝘶𝘭𝘥𝘷𝘪𝘰𝘭𝘢𝘵𝘦 𝘵𝘩𝘦 𝘱𝘭𝘢𝘪𝘯𝘵𝘪𝘧𝘧𝘴’ 𝘤𝘰𝘯𝘴𝘵𝘪𝘵𝘶𝘵𝘪𝘰𝘯𝘢𝘭 𝘳𝘪𝘨𝘩𝘵𝘴.
The legal mechanism: the Court tightened the Gingles framework. The state must now show a 𝘴𝘵𝘳𝘰𝘯𝘨 𝘣𝘢𝘴𝘪𝘴 𝘪𝘯 𝘦𝘷𝘪𝘥𝘦𝘯𝘤𝘦that Section 2 actually requires the additional majority-minority district. The default is now 𝘯𝘰 𝘳𝘢𝘤𝘦-𝘣𝘢𝘴𝘦𝘥 𝘥𝘪𝘴𝘵𝘳𝘪𝘤𝘵𝘪𝘯𝘨𝘶𝘯𝘭𝘦𝘴𝘴 𝘦𝘹𝘱𝘭𝘪𝘤𝘪𝘵𝘭𝘺 𝘤𝘰𝘮𝘱𝘦𝘭𝘭𝘦𝘥 — inverting the 40-year default of 𝘳𝘢𝘤𝘦-𝘣𝘢𝘴𝘦𝘥 𝘥𝘪𝘴𝘵𝘳𝘪𝘤𝘵𝘪𝘯𝘨 𝘶𝘯𝘭𝘦𝘴𝘴 𝘦𝘹𝘱𝘭𝘪𝘤𝘪𝘵𝘭𝘺 𝘧𝘰𝘳𝘣𝘪𝘥𝘥𝘦𝘯.
Justice Kagan’s dissent, said the ruling will 𝘦𝘷𝘪𝘴𝘤𝘦𝘳𝘢𝘵𝘦 𝘵𝘩𝘦 𝘭𝘢𝘸. She is right. The 1982 Section 2 framework — disparate-impact-mandates-racial-districting — is functionally dead. States may now redistrict for partisan advantage, citing traditional criteria (compactness, contiguity, population balance) or naked partisanship, and Section 2 will not stop them.
So, now the southern states will do what the Democrats in New England, New York, California and elsewhere have done for many years. There will be structural changes in the makeup of the House.
Florida passed the new map that adds 4 GOP-leaning seats relative to the prior court-imposed map. Effective Florida composition: 24-4 GOP.
North Carolina enacted its 11-3 GOP map already. Texas redistricting less susceptible to legal challenges.
Louisiana, Mississippi, Alabama, Georgia, South Carolina, Tennessee: every Republican-controlled Southern state legislature is now legally insulated to redraw maps for partisan advantage without VRA Section 2 obstruction. And most of them are doing so right now.
Conservative redistricting analysts project potential GOP gains of 15-25 House seats nationwide before any 2026 voter casts a ballot.
Rothman:
𝐇𝐀𝐊𝐄𝐄𝐌 𝐉𝐄𝐅𝐅𝐑𝐈𝐄𝐒’𝐒 𝐑𝐄𝐒𝐏𝐎𝐍𝐒𝐄: 𝘛𝘏𝘌 𝘊𝘖𝘜𝘙𝘛 𝘐𝘚 𝘐𝘓𝘓𝘌𝘎𝘐𝘛𝘐𝘔𝘈𝘛𝘌
House Minority Leader Hakeem Jeffries, on camera Wednesday:
𝘛𝘰𝘥𝘢𝘺’𝘴 𝘥𝘦𝘤𝘪𝘴𝘪𝘰𝘯 𝘣𝘺 𝘵𝘩𝘪𝘴 𝘪𝘭𝘭𝘦𝘨𝘪𝘵𝘪𝘮𝘢𝘵𝘦 𝘚𝘶𝘱𝘳𝘦𝘮𝘦 𝘊𝘰𝘶𝘳𝘵 𝘮𝘢𝘫𝘰𝘳𝘪𝘵𝘺 𝘴𝘵𝘳𝘪𝘬𝘦𝘴 𝘢 𝘣𝘭𝘰𝘸 𝘢𝘨𝘢𝘪𝘯𝘴𝘵 𝘵𝘩𝘦 𝘝𝘰𝘵𝘪𝘯𝘨 𝘙𝘪𝘨𝘩𝘵𝘴 𝘈𝘤𝘵. 𝘛𝘩𝘪𝘴 𝘪𝘴𝘯’𝘵 𝘦𝘷𝘦𝘯𝘳𝘦𝘢𝘭𝘭𝘺 𝘵𝘩𝘦 𝘙𝘰𝘣𝘦𝘳𝘵𝘴 𝘊𝘰𝘶𝘳𝘵. 𝘐𝘵’𝘴 𝘵𝘩𝘦 𝘛𝘳𝘶𝘮𝘱 𝘊𝘰𝘶𝘳𝘵. 𝘈𝘯𝘥 𝘸𝘩𝘢𝘵 𝘸𝘦 𝘸𝘰𝘶𝘭𝘥 𝘦𝘹𝘱𝘦𝘤𝘵 𝘧𝘳𝘰𝘮 𝘵𝘩𝘦 𝘛𝘳𝘶𝘮𝘱 𝘊𝘰𝘶𝘳𝘵 𝘪𝘴 𝘢𝘯 𝘦𝘧𝘧𝘰𝘳𝘵 𝘵𝘰 𝘤𝘰𝘯𝘵𝘪𝘯𝘶𝘦𝘵𝘩𝘦𝘪𝘳 𝘴𝘤𝘩𝘦𝘮𝘦 𝘵𝘰 𝘴𝘶𝘱𝘱𝘳𝘦𝘴𝘴 𝘵𝘩𝘦 𝘷𝘰𝘵𝘦 𝘢𝘯𝘥 𝘳𝘪𝘨 𝘵𝘩𝘦 𝘮𝘪𝘥𝘵𝘦𝘳𝘮 𝘦𝘭𝘦𝘤𝘵𝘪𝘰𝘯𝘴 𝘢𝘯𝘥 𝘣𝘦𝘺𝘰𝘯𝘥. 𝘛𝘩𝘦𝘴𝘦 𝘦𝘹𝘵𝘳𝘦𝘮𝘪𝘴𝘵𝘴 𝘩𝘢𝘷𝘦 𝘤𝘰𝘯𝘤𝘭𝘶𝘥𝘦𝘥, 𝘢𝘪𝘥𝘦𝘥 𝘢𝘯𝘥𝘢𝘣𝘦𝘵𝘵𝘦𝘥 𝘣𝘺 𝘵𝘩𝘦 𝘛𝘳𝘶𝘮𝘱 𝘊𝘰𝘶𝘳𝘵, 𝘵𝘩𝘢𝘵 𝘵𝘩𝘦𝘺 𝘩𝘢𝘷𝘦 𝘵𝘰 𝘤𝘩𝘦𝘢𝘵 𝘵𝘰 𝘸𝘪𝘯.
The highest-ranking elected Democrat in the United States House of Representatives just publicly accused six Justices of the Supreme Court of conspiring with President Trump to 𝘳𝘪𝘨 𝘵𝘩𝘦 𝘮𝘪𝘥𝘵𝘦𝘳𝘮 𝘦𝘭𝘦𝘤𝘵𝘪𝘰𝘯𝘴. This is the same party that spent four years calling Trump’s 2020 election challenge an 𝘢𝘵𝘵𝘢𝘤𝘬 𝘰𝘯 𝘥𝘦𝘮𝘰𝘤𝘳𝘢𝘤𝘺. The structural delegitimization of the institution is now a Democratic Party platform.
Jeffries’ attack is old hat by now. Once the Court shifted from a liberal activist court to one aligned with the Constitutional framework envisioned by our Founding Fathers, the Democrats have been trying to delegitimize the Court. The Democrats had become used to achieving in the Court, changes in society that they could not get passed in Congress. Their march towards government control of the population is being sidetracked.
State-mandated segregation is bad. This applies to voting districts as well.
Rothman:
The Section 2 disparate-impact mandate created a specific kind of district: 55-65% black, drawn to elect a Democratic black House member with no realistic primary or general-election competition. These districts existed to maximize black Democratic House seats.
The structural cost of the design: surrounding districts became 80-90% white, tilting heavily Republican. Black voters were politically disempowered — their votes were 𝘱𝘢𝘤𝘬𝘦𝘥 into safe seats where additional turnout produced no marginal political effect, while their potential influence in surrounding swing districts was zeroed out.
Justice Clarence Thomas has made this argument from the bench for 30 years: the Section 2 framework as applied is itself a form of state-mandated racial segregation in voting. The 2026 Callais ruling adopts Thomas’s long-standing position. The justices who joined the Callais majority — Alito, Roberts, Thomas, Gorsuch, Kavanaugh, Barrett — collectively represent four decades of conservative legal scholarship that finally became the law of the land.
Rothman goes on to detail what the framers of the 1965 Act wanted.
Read the 1965 House and Senate floor debates. The architects of the original VRA — Hubert Humphrey, Everett Dirksen, Lyndon Johnson, Bill McCulloch — were explicit. Their goal was a permanent end to race-based voting-rights violations, including state-mandated racial classifications. Section 5 preclearance was a temporary emergency measure to break Jim Crow. Section 2 prohibited race-based denial of voting rights — not race-based mandates of representational outcomes.
The 1982 amendments did not reflect the original intent of the 1965 VRA. They reflected the political judgment of post-civil-rights-era Democratic legislators that black political representation could only be guaranteed by federal mandate. That judgment was a betrayal of the 1965 framework. The Callais ruling restores the original framework.
It is very clear that the 1965 VRA was civil rights legislation in its purest form. It was there to stop the denial of voting rights for blacks which was a particular problem in the South. Of course, there were other examples elsewhere but the main target was the segregation of the South.
The Supreme Court has told the country that the 1965 promise-equal treatment regardless of race-is now here. Oh, and BTW, a higher percentage of Republicans than Democrats voted for the VRA in 1965 when it was passed. Some Democrats have always been about keeping people down on the plantation.
