Alito says Supreme Court is just updating the VRA, not killing it. That’s false

In his opinion in Callais v. Louisiana, Supreme Court Justice Samuel Alito claimed the majority was merely modernizing the Voting Rights Act (VRA), not killing the landmark civil rights law outright.

“We need only update the framework so it aligns with the statutory text,” Alito wrote about the VRA’s Section 2, which Congress enacted to ban racially discriminatory voting laws.

But legal experts, voting rights advocates, and even the VRA’s loudest foes all agree with Justice Elena Kagan: “[I]n fact, those ‘updates’ eviscerate the law.”

“Under the Court’s new view of Section 2, a State can, without legal consequence, systemically dilute minority citizens’ voting power,” Kagan wrote in her dissent. “Of course, the majority does not announce today’s holding that way. Its opinion is understated, even antiseptic.” 

Harvard University law professor Nicholas Stephanopoulos went further, writing on X: “Sure, Section 2 wasn’t officially struck down. But it might as well have been. It’s now useless to minority voters under virtually all circumstances.”

Some of the loudest backers of the redistricting war launched by President Donald Trump last year seemed to agree. 

“While not overturning section 2 of the VRA, [Callais] construes it into near-irrelevance. All minority voters are entitled to is that the map drawers NOT use race as a metric in drawing their maps,” wrote Will Chamberlain, senior counsel at the far-right Article III Project. “No more majority-minority districts.”

“You have to understand how brilliant Alito is,” Chamberlain added. “This is actually *better* than getting rid of section 2 outright, because it means section 2 can be used to CHALLENGE majority-minority districts (for impermissibly using race).”

“This is huge,” Trump’s former campaign manager, Brad Pascale, wrote on X. “If states are aggressive, we could see a healthy majority in the House perpetually.”

Election law experts and civil rights leaders said the exact same thing, only in mournful notes. 

“Today’s decision is a bullet in the heart of the voting rights movement,” Rev. Al Sharpton said in a statement. “The Supreme Court has not just weakened a law, it has humiliated and dismantled the life’s work of Dr. Martin Luther King Jr., John Lewis, and every man and woman who marched, bled, and died for Black Americans to have an equal voice at the ballot box.”

In the decades before Congress enacted the VRA in 1965, lawmakers would draw maps that split or “cracked” minority — mostly Black — voters across multiple districts, all but ensuring that they would be unable to elect someone who would represent their interests. Congress sought to ban that practice with Section 2 of the VRA. And when the Supreme Court in 1980 ruled that plaintiffs suing under Section 2 had to show discriminatory intent, Congress amended the law two years later to ban any voting “standard, practice, or procedure… 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.” 

Congress further wrote that a practice results in the denial of the right to vote when “based on the totality of circumstances,” it’s shown that racial minorities “have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.” 

But Alito’s ruling in Callais basically pretends Congress never did any of that, as Jay Willis wrote in Balls and Strikes. 

“The Callais requirements come not from Congress, but from the imaginary version of the statute that Alito and company wish Congress had passed instead,” Willis argued. “Throughout, the majority is acting as an unelected, unaccountable miniature legislature whose members, as Kagan writes, made their ‘own assessment’ of what things the Voting Rights Act ought to protect against, and ‘concluded that preventing racial vote dilution’ is not among them.”

The VRA was a huge success, as UCLA Law professor Rick Hasen noted in the first of his many reactions to the Callais decision, “leading to the election of scores of minority-preferred candidates in Congress and on the state and local level.” Since the VRA’s enactment, the number of Black U.S. Representatives rose from less than 10 to more than 60, and those elected from the South — where roughly half of America’s Black citizens reside — went from zero to nearly 30.

Now those gains are at risk. Following Callais, Republican lawmakers in Alabama and Louisiana are now sprinting to redraw their congressional maps to eliminate all of the two states’ majority-minority districts, which are currently held by four Black Democrats. 

“This decision will bleach the halls of Congress, state legislatures, and local bodies like city councils, by ending the protections of Section 2 of the act, which had provided a pathway to assure that voters of color would have some rudimentary fair representation,” Hasen wrote. “It’s the culmination of the life’s work of Chief Justice John Roberts and Samuel Alito, who have shown persistent resistance to the idea of the United States as a multiracial democracy, and a brazen willingness to reject Congress’ judgment that fair representation for minority voters sometimes requires race-conscious legislation.”

Hasen wondered why Alito obscured the real impact of his ruling behind reams of legal sophistry, calling him a “coward.” 

“[H]e’s either lying to himself or to the rest of us about the future of the Voting Rights Act,” he wrote in a separate piece for Slate.  

Kagan noted that Alito turned the link between race and party preference — what used to be “practically an element of a vote-dilution claim” — into an excuse. And relying on the Court’s decision in Rucho v. Common Cause, which held that even though partisan gerrymandering is unconstitutional, it’s a nonjusticiable political question beyond the courts’ abilities to resolve, Alito said VRA plaintiffs need to “disentangle race from politics” by proving that race inspired the line drawing, not partisanship. 

Good luck with that, said Kagan. 

“But under the majority’s new test, when those two facts coexist — which is almost everywhere Section 2 has purchase — a plaintiff will have to show — contrary to Section 2’s clear text and design — that the legislators were ‘motivated by a discriminatory purpose.” Kagan wrote. “And that, as Section 2’s drafters knew, is well-nigh impossible.” 

Under the new standards —which Alito cast as minor tweaks to the 40 years of jurisprudence built on the court’s 1982 decision, Thornburg v. Gingles — minority voters challenging a racially gerrymandered map will need to provide an alternate version that still accomplishes the mapdrawers’ original partisan goals. In other words, plaintiffs lose unless they can come up with another map that maintains the status quo, i.e. a new map that still favors Republicans.

Adam Serwer summarized the logic in The Atlantic thusly: “Discriminating against Black voters is okay because they vote for Democrats.” The Brennan Center for Justice’s Michael Li decried its “utter incoherence.” 

“It’s remarkable how the Supreme Court went from ‘partisan gerrymandering is bad but we can’t figure out how to police it’ in 2019 to ‘nakedly partisan goals override the Voting Rights Act’ in 2026,” Li wrote.

An execution 44 years in the making

While Alito may have delivered the finishing blow to the VRA, Roberts has stabbed at it for almost the entirety of his legal career. As a young attorney in President Ronald Reagan’s Department of Justice, Roberts wrote a memo arguing for a narrow reading of the VRA in general, and specifically against the ultimately-successful effort in Congress to amend Section 2 to prohibit voting laws that were racial discrimination in effect, and not just intentionally so.  

Roberts began a far more successful assault on the VRA in 2013 with his majority opinion in Shelby County v. Holder. That ruling invalidated Section 5 of the act, which forced states with histories of racial discrimination to get the DOJ’s approval before amending voting laws. 

Since Shelby County, minority voter participation has dipped, as a 2024 paper in the Journal of Public Economics showed. “Results show that Black, relative to white, turnout among registered voters decreased by about 1 percentage point, with larger effects in counties with greater Black and Hispanic populations,” the authors wrote. 

Then in 2021, Roberts joined Alito’s majority opinion in Brnovich v. Democratic National Committee, which kneecapped Section 2’s ability to block discriminatory voter registration laws.  Like he later would in Callais, Alito nullified the law without saying it, as Hasen noted. 

“Justice Alito made it impossible for plaintiffs to win their cases, leaving Section 2 on the books, but essentially toothless,” Hasen wrote. “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.” 

Throughout the Roberts Court’s systemic dismantling of civil rights protections, the conservative justices have argued that racism’s stain on the nation’s past has all but completely faded. “[S]ocial change has occurred throughout the country and particularly in the South,” Alito argued, pointing to a smaller racial gap in voter participation. 

“Black voters now participate in elections at similar rates as the rest of the electorate, even turning out at higher rates than white voters in two of the five most recent Presidential elections nationwide and in Louisiana,” he wrote. 

But as political scientist Kevin Morris noted on Bluesky, Altio cherry picked those figures; the two elections in question were in 2008 and 2012: when Barack Obama, our nation’s first Black president, was on the ballot, and before Shelby County axed Section 5 of the VRA. 

The idea that Americans only see political racism in black-and-white news reels during history documentaries is sadly belied by recent history. Just weeks before Callais, Republican lawmakers in Louisiana rushed to eliminate a county criminal court clerk position that Calvin Duncan, a Black man who was exonerated of a murder after spending decades behind bars, won with 68% of the vote. 

And in the small, predominantly Black hamlet of Newbern, Alabama, white residents handed the mayorship down to one another for decades until a Black man named Patrick Braxton filled out the paperwork to run in 2020. As the only candidate on the ballot, he automatically won. But instead of recognizing Braxton’s victory, the white town officials locked him out of town hall and held a secret election to reinstall themselves.

NPR’s Hansi Lo Wong predicts Callais will pave the way for “the largest-ever decline in the number of Black representatives on Capitol Hill,” one even bigger than the drop at the end of Reconstruction. And the impact might be even starker at the local and state level, the Brennan Center’s Li noted.

As Justice Ruth Bader Ginsberg noted in her Shelby County dissent, tossing out a civil rights law “when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.”

Ashley Cleaves contributed to this report.