Once the Voting Rights Act’s Champion, DOJ Now Wants SCOTUS To Gut It

For decades, the Department of Justice (DOJ) relied on the Voting Rights Act of 1965 (VRA) to foil and forestall attempts to discriminate against minority voters. 

On Wednesday, the DOJ filed an amicus brief urging the U.S. Supreme Court to devastate and vitiate much of what’s left of the landmark civil rights legislation.  

When courts have ordered racially gerrymandered maps redrawn for violating Section 2 of the VRA, “they have compelled States to violate the Constitution to remedy phantom statutory violations,” Solicitor General D. John Sauer argued for the DOJ in an amicus brief filed in Louisiana v. Callais. 

The lawsuit could deliver a deathblow to the VRA, which was significantly weakened by 2013’s Shelby County v. Holder. In Shelby, the Supreme Court struck down the law’s requirement for jurisdictions with a history of racial discrimination — mostly in the South — to get all voting changes approved, or “pre-cleared,” by the federal government. 

Under then-President Joe Biden, the DOJ filed an amicus in December 2024, as Callais was first pending before the Supreme Court, which defended the new electoral map Louisiana had adopted in response to successful VRA challenge. But after President Donald Trump took office, the government withdrew the brief.

In this new amicus, the DOJ now argues that Section 2 — the law the agency deployed righteously for decades against discriminatory voting practices — is unconstitutional as applied. A Section 2 violation does not provide “a compelling interest that can justify race-predominant districting,” Sauer wrote. 

Under the Supreme Court’s equal protection doctrine of strict scrutiny, the government can only discriminate on the basis of race if the action is “narrowly tailored” to further a “compelling state interest.” Thus, the brief claims, a Section 2 violation — like a map that results in diluting the ability of minority voters to elect representatives of their choice — should not be able to justify the race-conscious remedy of drawing a new map creating majority-minority districts. 

The Supreme Court was originally scheduled to hand down a narrow ruling on the particulars of the Callais case in June. Instead, it issued a surprise order to rehear the case, this time on the much broader question of whether the state’s “intentional creation of a second majority-minority congressional district violates the Fourteenth or Fifteenth Amendments.” 

That order suggested the court could be laying the groundwork to issue a broad ruling that would devastate Section 2’s ability to protect minority voting rights.

After the rehearing order, Louisiana flipped its position to urge the court to find that race-conscious redistricting is always unconstitutional, even when done to fix a racially discriminatory electoral map. 

Now, the government urges the court to significantly weaken the VRA’s protections, which judges have long held to prohibit seemingly race-neutral policies that cause discriminatory impacts and not just explicitly racially-motivated schemes. In doing so, the brief notes that since the court’s ruling in Rucho v. Common Cause found that partisan gerrymandering was a nonjusticiable political question, the VRA has been one of the few remaining tools available to voters to maintain some competitive electoral districts. 

“This Court’s Section 2 jurisprudence should account for the fact that, today, a State’s failure to create a compact majority-minority district, even where demographically possible, is far more likely to reflect political motives than racial ones,” the DOJ argues. “Too often, Section 2 is deployed as a form of electoral race-based affirmative action to undo a State’s constitutional pursuit of political ends. That misuse of Section 2 is unconstitutional.”

In a separate filing, the solicitor general also asked the court to participate in oral arguments, agreeing with the Louisiana Attorney General on a proposed split of 10 minutes for each of Louisiana, the solicitor general and the Callais plaintiffs. 

In other filings Wednesday, Louisiana Secretary of State Nancy Landry (R) also asked to participate in oral argument as an appellee — on the side of white voters — and requested that the total argument time be extended to 80 minutes, with 10 minutes reserved for her. 

Louisiana Attorney General Liz Murrill’s (R) office responded by notifying the court it had taken over all of Landry’s litigation matters and had fired the outside counsel she employed. The dispute between two ambitious elected officials, so dramatically and unusually playing out in Supreme Court filings, highlights the political motivations underlying this litigation. 

Local news outlets reported earlier this week that House Speaker Rep. Phillip DeVillier (R) asked lawmakers to be prepared for a potential special session in late October or November for redistricting, even though a decision wouldn’t be published by then. 

A coalition of sixteen GOP-controlled states, led by Alabama, also filed an amicus brief Wednesday focused on an alternative argument for finding Section 2 unconstitutional: that, as applied, it forces states into race-based districting under a vague and unmanageable standard developed by the court in Thornburg v. Gingles.

This Pelican State spectacle began in 2021, after Louisiana drew a new congressional map following the decennial census with a single majority-Black district out of six total, even though nearly a third of the state is Black. Voters and civil rights groups sued, successfully arguing that the map diluted the voting strength of Black residents in violation of the VRA’s Section 2. The 5th Circuit eventually ruled in Robinson v. Ardon that this map probably violated the VRA, essentially giving Louisiana the option of redistricting or continuing a long-shot legal battle. Two months later, Louisiana Gov. Jeff Landry (R) signed into law a new map with two majority-Black congressional districts.

Twelve “non-African Americans,” immediately sued, arguing that this new map, drawn to remedy the old map’s racial gerrymandering issues, itself was a racial gerrymander in violation of the 14th and 15th Amendments. Louisiana defended the new maps in court, this time with the Robinson plaintiffs joining as intervenor defendants. After the district court ruled that the new map was indeed unconstitutional in May, the state and intervenors appealed directly to the Supreme Court. 

At their behest, the justices agreed to stay the district court’s decision for the 2024 election, allowing the new map to be used. That led to Rep. Cleo Fields (D) winning the 6th district and joining Rep. Troy Carter (D) as the Louisiana congressional delegation’s second Black member. 

The court heard oral arguments in March on the questions of whether the Callais plaintiffs had standing to sue and whether the new districts were unconstitutional racial gerrymanders – that is, whether Louisiana went too far when it redrew its map. 

But when it came time to hand down a ruling, the court issued its surprise rehearing order instead. 

Oral arguments are scheduled for Oct. 15.

Despite the lengthy procedural road taken to this point, critics say the court is rushing the constitutional question. “This case was a racial gerrymandering case. It’s not a case about Section 2,” Harvard Law School professor Nicholas Stephanopoulos recently told Democracy Docket. “[The court] is totally avoiding the need for a proper record and proper fact finding.”

Maya Bodinson contributed to this report.