The Slaying of the Voting Rights Act by the Coward Samuel Alito

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If Wednesday’s disastrous Supreme Court opinion in Louisiana v. Callais reveals one thing, it’s this: Justice Samuel Alito is a coward. In that opinion, he’s either lying to himself or to the rest of us about the future of the Voting Rights Act. Callais essentially gutted what remains of the Voting Rights Act. Alito claims to have done no such thing. The question is why.

In Callais , Alito purported to overturn no precedent, claiming he was merely “updating” a framework that the Supreme Court constructed in the 1986 Thornburg v. Gingles case to determine when a redistricting plan violates Section 2 of the Voting Rights Act by diluting minority representation. This follows his 2021 majority opinion in Brnovich v. Democratic National Committee , where he purported to provide mere “guidelines” for determining when a state violates Section 2 in passing a law related to voting or voter registration.

In both cases, however, Justice Alito made it impossible for plaintiffs to win their cases, leaving Section 2 on the books, but essentially toothless. Since Brnovich , as I showed in a recent law review article , no plaintiffs have brought successful suits under Section 2 challenging a law alleged to suppress votes. Justice Elena Kagan’s exasperated dissent in Callais cited this research and rightly predicted the same fate for redistricting claims under Section 2: “The consequences are likely to be far-reaching and grave. Today’s decision renders Section 2 all but a dead letter.”

Indeed, Justice Alito’s twin opinions in Brnovich and Callais engage in extreme overkill, providing multiple pathways by which a state or locality could defeat a Section 2 claim. In Callais , for example, Alito “updated” the Gingles test, whose first prong required considering whether minority voters were large enough in population and concentrated enough geographically that it would be possible to draw a reasonably compact single member district, into a test that forbids any consideration of race in showing a likely violation. Now there’s a violation only if an algorithmically driven set of random plans would have created a district benefiting minority voters randomly and the state didn’t adopt such a map. And even if the state likely could have drawn a map favoring minority voters, the state can defend itself by (wait for it …) admitting to engaging in partisan gerrymandering—yes, the odious practice has now become a defense in a voting rights case. And it now doesn’t matter if there’s considerable overlap between racial voting preferences and party preferences. So to discriminate against Louisiana Democrats is not to discriminate against Louisiana’s Black voters, despite the overwhelming overlap between the two groups. Say the law is to give preference to Republicans and dilute Democrats—instead of boosting white people and diminishing the opportunities of Black people—and there’s no voting rights violation.

Alito made a similar move in Brnovich . When a state practice is flagged as having a discriminatory impact on minority voters, a state can defend by showing that the plan imposed no more than the “usual burdens of voting” as voting law existed in 1982 , when Congress amended Section 2. And the state can argue its law is necessary to prevent voter fraud, without having to offer any evidence that its burdensome law would actually prevent any such fraud.

Perhaps most galling of all, Alito goes out of his way to disclaim he is making radical change while putting multiple stakes through the heart of Section 2. The text of the Voting Rights Act is based on showing a law’s discriminatory effects. Even Alito admits that the 1982 version of Section 2 was enacted because the Supreme Court in 1980 decided that plaintiffs had to show intentional vote dilution—rather than just discriminatory effect—in a constitutional vote-dilution case. Congress thought that burden too high. Indeed, the text of Section 2 prohibits enacting an election law with discriminatory effects, barring any law “which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color.” Yet, as Joshua Douglas writes , Alito ignores any assessment of Congress’ “results” language in his purportedly textual analysis. Instead, Alito has brought back the “intent” test, with one part of the opinion making clear, as Kagan noted in her dissent, “that a Section 2 plaintiff has a ‘special burden’ to ‘demonstrate’ that racial rather than political (or other) reasons ‘drove a district’s lines’—i.e., that ‘the State intentionally drew its districts to afford minority voters less opportunity.’ ” At the end of his opinion, of course, Alito attacks the dissenting opinion for saying he embraced an intent test.

All of this hedging and doublespeak left Kagan flummoxed, writing, “So what the majority hopes to accomplish by its last-minute attempt to associate itself with an effects inquiry is something of a mystery. To try to disguise what it is really doing? To somehow absolve itself of responsibility? Or could it just be that, in responding to this dissent, the majority can do nothing but agree?”

My read of both Brnovich and Callais is that Justice Alito thinks he can get away with overturning Section 2 of the Voting Rights Act through technical minutiae rather than through a direct hit. Kagan says that Alito’s Callais “opinion is understated, even antiseptic.” This weaseling is probably the same reason that the court teed up Section 2’s constitutionality in an obscure order issued late on a Friday afternoon in August last year. If the Supreme Court’s conservatives—led by Alito here—hide the ball well enough, they must think, then perhaps nobody will realize how radical a change they are making and how much damage they are doing.

In the end, Alito is afraid to stand up and say what his opinions necessarily imply: that Congress cannot do anything to protect minority voting rights short of banning intentional discrimination despite the 14 ^th Amendment’s equal protection guarantee, despite the 15 ^th Amendment’s ban on race discrimination in voting, and despite the fact that both amendments explicitly give Congress the power to enforce the measures by “appropriate legislation.”

Maybe Alito is worried that a ruling forthrightly saying what he is doing would sully the reputation of the court, which has already faced public criticism for killing off another key part of the Voting Rights Act in 2013’s Shelby County decision. Perhaps he is worried that a frontal kill of Section 2 would energize Democrats, leading to greater losses for Republicans in the midterm elections and in future elections.

Whatever the reason, Justice Alito lacks courage, a word which ironically has been embraced by the Trumpiest of judges and legal commentators to describe taking positions that are extreme, unpopular, and I would argue, in conflict with the rule of law.

No one is fooled by Justice Alito’s act of cowardice, unless it is Justice Alito himself. If that’s the case, he is more deluded than he seems to think the rest of us are.