Supreme Court’s Gutting of Voting Provision Was Long Time Coming

This week’s US Supreme Court Voting Rights Act decision in Louisiana v. Callais ends a legal regime concerning racial representation that traces back decades.

In 1986, the decision in Thornburg v. Gingles, which construed Congress’ 1982 amendments to the VRA, compelled the creation throughout the South of new districts following the 1990 US Census. Those districts then elected the first Black representatives to Congress from several Southern states for the first time since Reconstruction.

Yet for many voting-rights scholars, a surprising aspect of this week’s decision is that Gingles survived as long as it did. Almost 20 years ago, the court’s trajectory had already become clear, as I wrote in an academic article back then: “Gingles now looks more like the last gasp of an older, dying era than the framework for a new one.”

The 5-4 Gingles decision, which gave birth to the requirement of safe minority districting, was decided toward the end of the era when Justices William Brennan and Thurgood Marshall still sat on the court.

As I noted, almost as soon as the ink was dry on the decision, the court began cutting back on it: "[E]ver since the creation of Gingles, the Court has been seeking ways to cabin its offspring. The Court has never extended Gingles or expanded on it. Instead, it has cut back on the implications of Gingles at every opportunity. In retrospect, it now seems clear that the half-life of majority support within the Court for Gingles was extremely brief.”

My conclusion then was that “the Court is groping for what seems to be a way to confine the concept of minority vote dilution to cases the Court views as ones of truly intentional state discrimination.” That is essentially what Wednesday’s decision now does. All this was written, of course, long before Justices Neil Gorsuch, Brett Kavanaugh, or Amy Coney Barrett joined the court.

Despite the weakening support within the Supreme Court for Gingles, litigants didn’t test the parameters the case laid out. The Supreme Court wasn’t pressed to revisit them. Many people don’t realize how episodic the Supreme Court’s entry into various bodies of law can be, which is partially why that resistance to Gingles remained in suspended animation for so long.

Since I wrote that 2007 article, the only time the court directly engaged the Gingles framework was three years ago, in a case from Alabama, Allen v. Milligan. Many voting-rights scholars thought the Supreme Court would rewrite Gingles then.

I believe the reason it didn’t is that Alabama had briefed and argued the case in such a confusing fashion that it gave the court’s majority—likely to be sympathetic to Alabama—no help. This leads to another underlying dimension to the Louisiana v. Callais decision that’s easy to miss: The change in administration following the 2024 presidential election played a central role.

Unlike in Allen, the Trump administration’s solicitor general gave the court a roadmap for how to effectively end Gingles. The court’s opinion followed that map closely.

There’s also an underlying litigation and political dynamic that explains why the court ended up engaging again directly with Gingles and the VRA after the 2020 Census. The Republican Party was in control of redistricting in several Southern states following the 2010 Census for the first time since Reconstruction. After the 2020 count, it remained in control.

Yet in both rounds, the Republican Party was willing to live with the VRA status quo. It didn’t challenge VRA districts that had been drawn in the South, most of which traced back to that 1990s round of redistricting. Republicans grumbled about the “partisan unfairness” of being required to draw districts that would inevitably elect Democrats. But in most places, including Alabama and Louisiana, they left those VRA districts intact and gerrymandered around them.

Ironically, the success of voting-rights advocates in the lower courts triggered the Supreme Court’s re-entry into VRA issues after the 2020 round of redistricting. Armed with first-rate social scientists and powerful new technology that enabled the drawing of hundreds of thousands of potential maps, plaintiffs were able to ferret out new 50%+1 VRA districts.

When the lower courts ordered these additional VRA districts to be created, the states—now in the posture of defending their post-2020 maps—then directly pressed the Supreme Court to revisit the core of Gingles for the first time in decades.

If the VRA advocates’ success in the lower courts was a Pyrrhic victory, this week’s decision might come back to haunt the Supreme Court. Democrats will make a strong push for voting-rights legislation if they capture unified control of government after 2028.

As part of that push, many Democrats will undoubtedly demand major changes to the Supreme Court, as is already evident in some reactions to Wednesday’s decision, including from Minority Leader Hakeem Jeffries. There’s little doubt the Callais decision will lead to the elimination of a number of Democratic districts in the South that elect Black members to Congress—if not by this year’s midterm elections, then by 2028. Democrats might offset some of these losses by spreading black voters out across districts to maximize Democratic prospects in other areas of the country.

When Congress last amended the VRA in 2006, I argued that the future of voting rights policy should shift from the older anti-race discrimination model of the civil rights era to robust laws with universal protections for the right to vote. The race-discrimination model failed even then to capture the full range of threats to voting rights and was increasingly vulnerable to the Supreme Court’s move toward a colorblind Constitution.

If it was true then, it’s even more true now. When Congress returns to this arena, the model of strong universal protection for the voting rights of all citizens will provide the broadest protection and be the most durable.

The cases are Louisiana v. Callais, U.S., 24-109, decided 4/29/26 and Robinson v. Callais, U.S., 24-110, decided 4/29/26

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law, Bloomberg Tax, and Bloomberg Government, or its owners.

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Richard Pildes is the Sudler Family Professor of Constitutional Law at NYU School of Law.

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