The Voting Rights Act likely won’t be ‘gutted,’ but the Supreme Court appears ready to narrow it – RedState

If you only read the headlines after the Supreme Court’s reargument in Louisiana v. Callaisone would think that the Court’s conservatives were sharpening their knives to “gut” the Voting Rights Act. The reality inside the courtroom was more nuanced and, for those who actually care about constitutional limits, more encouraging.

The justices weren’t preparing to tear down Section 2. They were trying to save it from the legal contradictions that have plagued redistricting for forty years.

Section 2’s growing tension with the Constitution

Section 2 of the Voting Rights Act prohibits any election map or law that would “result” in minority voters having fewer opportunities than others to elect the candidates of their choice. In 1986, the Court’s decision in Thornburg v. Gingles established a three-part test: a large and compact minority population, political cohesion and majority bloc voting.

In Allen v. Milligan (2023), Chief Justice John Roberts reaffirmed that Section 2 can still require states to draw majority-minority districts under these conditions. But what happens when compliance with Section 2 requires a legislature to make race the predominant factor in its map — a move that violates the Equal Protection Clause?

It is the heart of Louisiana v. Callais.

Louisiana’s ‘no-win’ problem

Louisiana finds itself stuck between two contradictory commands. A federal court ordered the Legislature to create a second majority-black district under Section 2. At that time, another group of plaintiffs filed suit, claiming that the new map – which was passed by our legislature as Senate Bill 8 – was an unconstitutional racial gerrymander under Section 2. Shaw v. Reno.

Louisiana Solicitor General J. Benjamin Aguiñaga put it bluntly: “Louisiana would rather not be here…we would rather not be caught between two parties with opposing views.” » His argument: The state cannot simultaneously respect both the racial consciousness of Article 2 and the racial neutrality of the Constitution without clearer boundaries.

Justice Amy Coney Barrett pressed him on this same distinction: “You don’t understand that you are arguing that any part of Section 2 is per se unconstitutional, but rather that the way the courts apply it goes beyond that? Aguiñaga replied: “That’s correct. »

This exchange is at the heart of the matter we are facing. The debate is not over if Section 2 is valid, it’s over to what extent it may disappear before leading to unconstitutional racial sorting.

“Predominance” and the Court’s search for limits

The word of the day was predominance – the idea that race becomes constitutionally problematic when it “subordinates traditional, neutral principles” of redistricting and becomes “non-negotiable.” Justice Neil Gorsuch tried to pin down what that means: “Is this a proximate cause test? A proximate cause test?” Justice Department lawyer Hashim Mooppan responded: “Neither is when race subordinates neutral principles and cannot be compromised. »

SEE ALSO: Could a SCOTUS ruling in ‘Louisiana v. Callais’ end Democratic redistricting scams once and for all?

Justice Samuel Alito asked a practical version of the same question: “What about mandate and partisan advantage? Aren’t those race-neutral factors that a legislature is allowed to consider?” Moppan agreed — and argued that current Section 2 doctrine strengths states reject them, making race predominant by default.

This is the real constitutional tension that conservative justices want to resolve.

The Liberal Response: Protecting Test Results

The Court’s liberal bloc—Justices Kagan, Sotomayor, and Jackson—strongly pushed back against any move that resembled a rewrite of Section 2 itself.

Justice Sotomayor reminded the chamber that “we have not granted a certificate to redo Gingles“, adding that statutory precedents are reinforced you decided to get up protection because “Congress had forty years to fix it and failed to do so.” In short: Section 2 is a law that Congress can amend if it wishes; the Court should not do this work for them. Sotomayor seems to be implying here that the Court’s job is not to create a test for whether something is constitutional or not…which is literally its job.

Justice Jackson attempted a broader defense, comparing Section 2’s “effects test” to the Americans with Disabilities Act: “Remedial action in the absence of discriminatory intent is not new…Congress has said that facilities must be made equally open…I don’t understand why that’s not what’s happening here.” »

Justice Jackson just compared black people who cannot create majority black congressional districts to people with disabilities who cannot enter a building before the ADA.

“They don’t have equal access to the electoral system. They are disabled.” pic.twitter.com/zvN8bJf4Xc

– Greg Price (@greg_price11) October 15, 2025

This analogy – comparing race-based districting to wheelchair ramps – fell flat. As attorney Edward Greim (arguing against SB 8) responded: “The difference is that the remedy under the ADA is not a stereotype. » The current application of Section 2, he said, stereotypes voters by race to determine their “membership.”

An emerging middle way

Between the two poles, the Court’s center-right justices seemed to seek a balance. Justice Kavanaugh speculated about “tie-breaking” by race; the chief justice asked when “inordinate” consideration of race becomes too important. None seemed keen to abandon Section 2, but several expressed discomfort with how it is being enforced.

Even the DOJ admitted that Ginglesas interpreted today, “goes well beyond anything that reasonably presents a risk of intentional discrimination.”

It’s a recognition that modern enforcement of the Voting Rights Act requires guardrails. The center-right wing of the Supreme Court is most likely to develop them.

Restricting is not emptying

The rhetoric you hear in the coming weeks – especially from progressive activists – will seem apocalyptic. But restricting Article 2 to its constitutional limits does not amount to emptying it of its content. This is exactly how constitutional adjudication is supposed to work.

Section 2 was never intended to ensure racial proportionality in Congress. This was to prevent state representatives from use race to remove. At some point, compliance with Article 2 began to require state officials to using race to divide.

That’s what this case seeks to correct.

What comes next

Whatever the Court’s decision, Article 2 will remain in force. What is likely to change is the norm of predominance: clarifying when racial consciousness transforms into racial domination. This adjustment could bring Section 2 into alignment with the Fourteenth Amendment rather than in opposition.

In this sense, the judges are not dismantling the Voting Rights Act. They are carrying out a constitutional adjustment, strengthening a law which has been in force without alignment for almost forty years.