Essay by Michael D Adelson*
I. Introduction
The Voting Rights Act of 1965 (“VRA”) was a transformational piece of legislation that became law during the Civil Rights Movement.1History of Voting Rights Laws, U.S. Dep’t of Just., https://archive.ph/20210106161217/https://www.justice.gov/crt/history-federal-voting-rights-laws (last updated July 28, 2017). The VRA was created to put an end to the post-Civil War discriminatory voting practices employed by state and local authorities to disenfranchise non-White voters.2Id. Despite the ratification of the Fifteenth Amendment to the United States Constitution3The Fifteenth Amendment codifies “the right of citizens of the United States to vote.” The right to vote “shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.” U.S. Const. amend. XV, § 1. The Fifteenth Amendment grants Congress the power to enforce its provisions “by appropriate legislation.” U.S. Const. amend. XV, § 2. in 1870, voter suppression of African Americans remained rampant in the South long after the Civil War ended.4J. Morgan Kousser, The Shaping of Southern Politics: Suffrage Restriction and the Establishment of the One-Party South, 1880–1910, 1968–69 (1974). Congress’s initial attempts to enforce the Fifteenth Amendment found little success; the Enforcement Act of 1870, which made it a crime for public officials and private persons to obstruct the right to vote, was—despite its name—scantly enforced and by 1894 its provisions were mostly repealed or otherwise rendered null.5South Carolina v. Katzenbach, 383 U.S. 301, 310 (1966). The Jim Crow Era of the late nineteenth through early twentieth centuries saw former Confederate states enact various means to prevent Black voters from exercising their right under the Fifteenth Amendment, including, but not limited to: poll taxes,6Michael Perman, Struggle for Mastery: Disenfranchisement in the South, 1888-1908, 1957 (2001). grandfather clauses,7Grandfather clauses typically prevented eligible voters from casting a ballot unless their grandfather could vote before the Civil War. While these policies were ostensibly racially neutral, they disproportionately affected Black voters. Id. at 29–30. and literacy tests.8Id. at 84. Across the South, these measures led to a sharp decrease in Black voter turnout by the end of the nineteenth century.9Kousser, supra note 4, at 120. Violent means were frequently employed by domestic terrorists, such as the Ku Klux Klan, to intimidate African Americans and deter them from voting.10William Pierce Randel, The Ku Klux Klan: A Century of Infamy 140 (1969).
It was not until the Civil Rights Movement of the 1950s and 1960s that national calls for Congress to enact legislation to protect the voting rights of racial minorities were renewed.11History, Voting Rights Act of 1965 (last updated Feb. 27, 2025). In 1964, Congress passed the Civil Rights Act of 1964 (“CRA”).12See generally Civil Rights Act (1964), Nat’l Archives, https://www.archives.gov/milestone-documents/civil-rights-act (last visited Dec. 8, 2025). Although President Lyndon B. Johnson signed the CRA into law, he did not initially champion the passage of its voting rights counterpart so soon thereafter.13Ryna M. Crowley, ‘The Goddamndest, Toughest Voting Rights Bill’: Critical Race Theory and the Voting Rights Act of 1965, 16 Race Ethnicity and Education, Sep. 2012, at 696, 17–18. Johnson’s attitude changed after African-American protestors in the 1965 march from Selma to Montgomery were violently attacked by police and counter-protestors, drawing public attention to activists’ calls for voting rights protections.14Id. at 20–21. President Johnson had previously instructed Attorney General Nicholas Katzenbach to create “the goddamndest, toughest voting rights act”15Id at 20. possible, and just several months later Johnson signed the VRA into law.16Id. at 717.
Like its predecessors, the VRA expressly prohibits state and local governments from infringing upon the right to vote on several bases, including race.1752 U.S.C. § 10103. Unlike the impotent Enforcement Act of 1870, the VRA was immediately successful.18Voting Rights Act (1965), Nat’l Archives, https://www.archives.gov/milestone-documents/voting-rights-act (last visited Nov. 9, 2024). The VRA’s success was owed in large part to its stronger provisions; for example, Sections 4(b) and 5 of the VRA required covered states, counties, and townships to obtain federal preclearance or permission before enacting new voting procedures.1952 U.S.C. § 10303–10304. Coverage was determined by a formula based on whether a state, county, or township employed a “test or device” used to deny or abridge the right to vote on account of color and had less than fifty percent voter turnout in the 1964 presidential election.2052 U.S.C. § 10303(b). Likewise, Section 2 of the VRA also eliminated many of the devices (e.g. grandfather clauses) used by the covered localities to disenfranchise African Americans.2152 U.S.C. § 10301(a).
As the strength of the VRA waxed in the late twentieth century, in the beginning of the twenty-first century it began to wane. The current Supreme Court has significantly weakened the strength of the VRA, undoing decades of progress advancing voting rights with other federal courts poised to accelerate that decline.22Glinda R. Daniels, Uncounted: The Crisis of Voter Suppression in America 48 (2020). In 2013, the Supreme Court dismantled Sections 4(b) and 5 of the VRA23See generally Shelby Cnty., Ala. v. Holder, 570 U.S. 529 (2013) (holding that Section 4(b) is unconstitutional); see also id. at 560 n.1(Ginsburg, J., dissenting) (stating that while the Court only declared §4(b) unconstitutional, it has left “§5 . . . immobilized.”). and in 2021 reduced the efficacy of Section 2 claims.24See Richard L. Hasen, The Supreme Court’s Latest Voting Rights Opinion Is Even Worse Than It Seems, Slate (July 8, 2021), https://slate.com/news-and-politics/2021/07/supreme-court-sam-alito-brnovich-angry.html (“Justice Alito [in Brnovich v. DNC] . . . essentially offered a new and impossible test for plaintiffs to meet to show a Section 2 vote denial claim.”). Today, the federal Circuit Courts of Appeals are split on another provision: whether Section 2 allows for a private cause of action to allege discrimination under the VRA.25See Cong. Rsch. Serv., Recent Developments in the Rights of Private Individuals to Enforce Section 2 of the Voting Rights Act (2024). The purpose of this note is to make clear the surreptitious goal of the current Supreme Court is to dismantle the VRA. This note considers the future of Section 2 amidst a newly emerged circuit split, as well as Chief Justice John Roberts’s own insidious vendetta against that which some would call “the goddamndest, toughest voting rights act in our nation’s history,” or as Roberts preferred to call it: a “serious problem.”26See generally Memorandum from John Roberts to William French Smith (Dec. 22, 1982) (referring to a plaintiff-friendly Section 2 as a “problem” that required U.S. Senators to be “educated” as to its ostensible seriousness).
II. Early Challenges
In the years following 1965, the Supreme Court tended to affirm the constitutionality of the VRA’s provisions.27See infra notes 28–31. In 1966, the Supreme Court dealt with two cases challenging various provisions of the VRA: South Carolina v. Katzenbach and Katzenbach v. Morgan. Regarding the former, the state of South Carolina sought an injunction against the Attorney General to prevent him from enforcing the VRA.28South Carolina v. Katzenbach, 383 U.S. 301, 307 (1966).[/mfn South Carolina was one of the states covered by Section 4(b) because it employed a test or device to disenfranchise Black voters before November 1, 1964.28Id. at 317. The Court issued a ruling starkly in favor of the government, holding that, under the Fifteenth Amendment, Congress “has full remedial powers to effectuate the constitutional prohibition against racial discrimination in voting.”29Id. at 326. In Morgan, the Court arrived at a similar conclusion; Section 4(e), which protects limited English-proficient voters, is constitutional under the Fourteenth Amendment.30“Section 4(e) may be readily seen as ‘plainly adapted’ to furthering these aims of the Equal Protection Clause. The practical effect of § 4(e) is to prohibit New York from denying the right to vote to large segments of its Puerto Rican community. Congress has thus prohibited the State from denying to that community the right that is ‘preservative of all rights.’” Katzenbach v. Morgan, 384 U.S. 641, 652 (1966) (quoting Yick Wo v. Hopkins, 118 U.S. 356, 370). Thus, the VRA survived its first legal challenges.
Despite the successes of the VRA’s initial implementation, the Act faced notable legal challenges that limited its effectiveness beginning in the 1980s. Between 1965 and 1975, Black voters were registering to vote with historically low levels of interference.31Ellen D. Katz et al., Documenting Discrimination in Voting: Judicial Findings Under Section 2 of the Voting Rights Act Since 1982, 39 U. Mich. J.L. Reform 643, 645 (2006). Black voter participation and registration saw a sharp increase after the VRA was passed.32Id. In the city of Mobile, Alabama, Black voters noticed that, despite increases in Black voter participation, they still lacked the ability to elect candidates of choice.33Id. at 647. Despite comprising approximately one-third of the city’s population, no Black candidate had ever been elected to Mobile’s city council despite consistent support from the Black electorate.34Id. Many Black Mobile residents brought a class-action lawsuit against the city, asserting their right under Section 2 to be unburdened by any “voting qualification or prerequisite to voting, or standard, practice, or procedure . . . deny[ing] or abridg[ing] the right of any citizen of the United States to vote on account of race or color.”35City of Mobile, Ala. v. Bolden, 446 U.S. 55, 60 (1980) (citing 42 U.S.C. § 1973). The Supreme Court concluded that the Fifteenth Amendment, and by extension Section 2, provides no guarantee of the right of non-White citizens to elect candidates of choice.36Id. at 65. In City of Mobile, evidence of disproportionate impact on non-White voters did not suffice as a legally cognizable claim of racial discrimination under the VRA.37Id. at 66.Absent evidence of purposeful discrimination, the Court found that the citizens of Mobile did not have their voting rights abridged.38“[A]ction by a State that is racially neutral on its face violates the Fifteenth Amendment only if motivated by a discriminatory purpose.” Id. at 62.
The Senate responded to the Court’s holding in City of Mobile by amending Section 2 in 1982.39Katz et al., supra note 32, at 647. The framework created by the amended Section 2, rather than adhering to the “intent test” in City of Mobile, established a “results test,”40“No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner 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 . . . .” 52 U.S.C. § 10301(a) (emphasis added). meaning that Section 2 plaintiffs no longer had to prove invidious intent to discriminate, rather they need only succeed on a showing that a state’s or locality’s electoral practices produce a discriminatory result.41The results test under Section 2 is a complex test, which additionally requires an inquiry into the totality of the circumstances. “A violation of [52 U.S.C. § 10301(a)] is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to [racial, ethnic, and linguistic minorities] in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. The extent to which members of a protected class have been elected to office in the State or political subdivision is one circumstance which may be considered.” 52 U.S.C. § 10301(b). Alongside the 1982 amendments, the Senate also released a report providing several factors (“the Senate Factors”) that courts have used to weigh whether electoral procedures produce a discriminatory result.42Thornburg v. Gingles, 478 U.S. 30, 43 n.7 (1986). The Senate Factors include seven key factors and two factors of (arguably) lesser importance, which nonetheless may prove “probative” in a Section 2 inquiry:
(1) the history of official voting-related discrimination in the state or political subdivision; (2) the extent to which voting in the elections of the state or political subdivision is racially polarized; (3) the extent to which the state of political subdivision has used voting practices or procedures that tend to enhance the opportunity for discrimination against the minority group, such as unusually large election districts, majority-vote requirements, and prohibitions against bullet voting; (4) the exclusion of members of the minority group from candidate slating processes; (5) the extent to which minority group members bear the effects of discrimination in areas such as education, employment, and health, which hinder their ability to participate effectively in the political process; (6) the use of overt or subtle racial appeals in political campaigns; and (7) the extent to which members of the minority group have been elected to public office in the jurisdiction.43S. Rep. No. 97-417, at 28-29 (1982).
The additional two probative factors are, one, “whether there is a lack of responsiveness on the part of elected officials to the particularized needs of minority group members,” and two, whether the underlying policy justifications for the electoral procedure are “tenuous.”44Id. at 29. According to the Senate Report, no single factor is dispositive, and courts should consider other factors not included in the report depending on the evidence available.45Id. at 28–29. The Supreme Court has since refined the Senate Factors.46See infra notes 48-49. First, in 1984, the Supreme Court affirmed the constitutionality of the amended Section 2.47See Mississippi Republican Exec. Comm. v. Brooks, 469 U.S. 1002, 1005-06 (1984) (Rehnquist, J., dissenting). Second, the Supreme Court in Thornburg v. Gingles created three “preconditions” preempting the Senate Factors that a Section 2 plaintiff must satisfy: geographic compactness, political cohesion, and whether the majority White vote serves as a bloc to prevent minority voters from electing candidates of choice.48“First, the minority group must be able to demonstrate that it is sufficiently large and geographically compact to constitute a majority in a single-member district . . . Second, the minority group must be able to show that it is politically cohesive . . . Third, the minority must be able to demonstrate that the white majority votes sufficiently as a bloc to enable it [to elect candidates of choice] . . .” Thornburg v. Gingles, 478 U.S. 30, 50-51 (1986). As a result, Section 2 plaintiffs must first satisfy the Gingles threshold; only upon satisfying the Gingles preconditions will the Court then proceed to consider the totality of the circumstances (i.e. the Senate Factors).49See id. at 47 (“The essence of a § 2 claim is that a certain electoral law, practice, or structure interacts with social and historical conditions to cause an inequality in the opportunities enjoyed by black and white voters to elect their preferred representatives.”).
In summation, twentieth-century VRA jurisprudence from the Supreme Court and Congress has consistently upheld the VRA. While by 1986, courts considered a labyrinthine collection of factors, the VRA remained robust. VRA plaintiffs were no longer obligated to prove discrimination solely through invidious intent. Instead, they had many tools at their disposal to demonstrate whether electoral practices produce discriminatory results, such as historical practices and contemporary data.50See generally S. Rep. No. 97-417, at 28-29 (1982); see also id. at 47. Perhaps most importantly, the amended VRA implemented additional compliance factors to ensure that the invidious practices of disenfranchisement could not reemerge, particularly in states that formerly comprised the Confederacy.5152 U.S.C. §§ 10303–10304. The results are self-evident: voter registration and participation among minority populations soared.52Faith Pring, Racial Equality in US South Improved by ‘Instrumental’ 1960s Voting Rights Act, Study Finds, University of Nottingham (May 17, 2023);James Thomas Tucker, Enfranchising Language Minority Citizens: The Bilingual Election Provisions of the Voting Rights Act, 10 New York University Journal of Legislation and Public Policy 195, 233-35 (2006). The promise of the VRA was kept, but the wheel turns, and with it do promises break.
III. The Rise of John Roberts
Enter John Roberts. When the VRA was enacted in 1965, Roberts was just ten years old.53Confirmation Hearing on the Nomination of John G. Roberts to be Chief Justice of the United States: Hearing Before the Comm. on the Judiciary, 119 Cong. 459 (2005). By 1981, Roberts had completed a clerkship with then-Justice William Rehnquist.54Ian Millhiser, Chief Justice Roberts’s Lifelong Crusade Against Voting Rights Explained, Vox (Sept. 18, 2000), https://www.vox.com/21211880/supreme-court-chief-justice-john-roberts-voting-rights-act-election-2020. Only one year later in 1982, a twenty-six-year-old Roberts worked as an aide in the United States Department of Justice (“DOJ”) to the contemporary Attorney General William French Smith.55Id. Note the date: Roberts was working in the heart of the legal system at the same time the Senate was amending the VRA. It was in this legal syzygy that Roberts formulated his beliefs on the VRA that would come to later dominate the Supreme Court in the present day. Roberts’s clerkship with Rehnquist began just months after the Court’s decision in Mobile.56Ari Berman, Inside John Roberts’ Decades-Long Crusade Against the Voting Rights Act, Politico (Aug. 15, 2015), https://www.politico.com/magazine/story/2015/08/john-roberts-voting-rights-act-121222/. Rehnquist was famously one of the most conservative justices in the Supreme Court’s history.57Id. As a young clerk himself, Rehnquist wrote several memos revealing his own personal views, as he staunchly advocated for the affirmance of Plessy v. Ferguson.58Id. Indeed, it seems that Rehnquist passed the torch to the clerk who would one day succeed him as Chief Justice; after completing his clerkship with Rehnquist, in 1982 Roberts wrote twenty-five memos to the attorney general stressing that the VRA be kept in its weakened post- Mobile state.59Millhiser, supra note 55. “[S]omething must be done to educate the Senators on the seriousness of this problem [the use of a results test instead of an intent test for Section 2 claims],” wrote Roberts in one memo.60Supra note 57. He went on to write that “violations of Section 2 should not be made too easy to prove.”61Supra note 57. During his time at DOJ, Roberts had a reputation for being zealously opposed to the utility of the VRA.62“‘[Roberts] seemed like he always had it in for the Voting Rights Act,’ said Gerry Hebert, the deputy director of litigation in [DOJ’s] Civil Rights Division’s voting section. ‘I remember him being a zealot when it came to having fundamental suspicions about the Voting Rights Act’s utility.’” Berman, supra note 57.
Roberts’s DOJ memos would come back to haunt him twenty-three years later in 2005 when he was being considered to replace Rehnquist as Chief Justice of the Supreme Court. During his confirmation hearing, several Senators asked questions about Roberts’s stance on the VRA and voting rights at large.63See supra note 54, at 183–84 . When asked about the extent to which Roberts’s DOJ memos reflected his personal views about the VRA, Roberts often deflected these questions by claiming the memos were not indicative of his own views but merely of a broader DOJ policy toward the VRA under then-President Ronald Reagan.64See, e.g., supra note 54, at 246 (“[M]y personal view of the Voting Rights Act was not something somebody was interested in. You have people who serve on your staff, and their job is to help you implement your views as a Senator.”); see also supra note 54, at 247 (“I was a 26-year-old staff lawyer. It was my first job as a lawyer after my clerkships. I was not shaping administration policy. The administration policy was shaped by the Attorney General on whose staff I served. It was the policy of President Reagan. It was to extend the [VRA] without change for the longest period in history at that point, and it was my job to promote the Attorney General’s view and the President’s view on that issue. And that’s what I was doing.”). However, he prefaced one of his most critical memos by saying “[m]y own view is that . . . .”65Supra note 57. Roberts also evaded Senators’ questions about the VRA with that age-old rhetorical device used to escape scrutiny: responding that you do not know enough about the topic.66See, e.g., supra note 54, at 247 (“Well . . . I haven’t followed the issue [the use of a results test for § 2 ] or the particular litigation.”). Regardless of any lingering concerns about Roberts’s personal views, the Senate confirmed Roberts as Chief Justice of the Supreme Court. However, not all were convinced of Roberts’s self-professed ambivalence toward the VRA.67See, e.g., id. at 473 (“I don’t buy this argument that he was just doing his job, he was just following the rules. By this time, you had the 1964 Civil Rights Act, the 1965 Voting Rights Act, and the Fair Housing Act of 1968. By this time if there was someone in the administration, they should have a mindset. I think this says something about Judge Roberts’s mindset. He didn’t stand up and argue against this attitude. He didn’t speak out. He didn’t send a memo saying something different.”). Those skeptical of Roberts’s stance on the VRA would be vindicated eight years later in 2013.
IV. Modern Challenges
In 2013, Roberts encountered his first opportunity to find parts of the VRA unconstitutional in Shelby Cnty., Ala. v. Holder. At issue in this case was the constitutionality of Sections 4(b) and 5;68Shelby Cnty., Ala., 570 U.S. at 536. the former provided the aforementioned coverage formula and the latter required states, counties, and townships covered by this formula to seek federal preclearance before enacting changes to voting policy.6952 U.S.C. §§10303(4)(5)– 10304. Since 1965, Congress updated the coverage formula of Section 4(b), allowing covered localities to seek an exemption from coverage if they could demonstrate that over a period of ten years, no test or device had been used to deny or abridge the right to vote on the basis of race.70Shelby Cnty., Ala. v. Holder, 679 F.3d 848, 855-56 (D.C. Cir. 2012), rev’d, 570 U.S. 529 (2013). When the VRA was first enacted, Section 5 was originally set to expire after five years; before Shelby, Congress had reauthorized Section 5 every five years.71Supra note 69. The most recent reauthorization of Section 5 was in 2006, after which Shelby County, Alabama—one of the localities covered by Section 4(b)—sued seeking a declaratory judgment that Sections 4(b) and 5 were facially invalid.72Id.
A. Dismantling Sections 4(b) and 5
The U.S. District Court for the District of Columbia upheld Sections 4(b) and 5.73Shelby Cnty., Ala. v. Holder, 811 F. Supp. 2d 424, 428 (D.D.C. 2011), aff’d, 679 F.3d 848 (D.C. Cir. 2012), rev’d, 570 U.S. 529 (2013), The U.S. Court of Appeals for the D.C. Circuit also upheld the constitutionality of Sections 4(b) and 5.74Shelby Cnty., Ala., 679 F.3d at 884. In a 5-4 opinion authored by Chief Justice Roberts, the Supreme Court overturned the D.C. Circuit Court and held that the coverage formula in Section 4(b) was unconstitutional.75Shelby Cnty., Ala., 570 U.S. at 556. Although Section 5 was ostensibly left untouched, the result of Shelby left Section 5 paralyzed.76Id. at 569 n.1 (Ginsburg, J., dissenting). Both the district court and the court of appeals reviewed Congress’s justification for reauthorizing the VRA provisions that were set to expire.77Shelby Cnty., Ala., 679 F.3d at 856. In preparation for the VRA’s reauthorization in 2006, Congress prepared a report totaling more than “15,000 pages in length, and including statistics, findings by the courts and [DOJ], and first-hand accounts of discrimination.”78Id. (quoting Shelby Cnty., Ala., 811 F. Supp. 2d at 435). Both courts deferred to Congress’s findings that the evil of voter discrimination, which the VRA was enacted to prevent, was alive and well in 2006.79See id. at 884. Looking at Congressional findings, significant racial disparities in voter registration and turnout remained despite amelioration thereto since 1965.80“Racial disparities in voter registration and turnout have ‘narrowed considerably’ in covered jurisdictions and are now largely comparable to disparities nationwide. . . . But Congress found that this progress did not tell the whole story. It documented ‘continued registration and turnout disparities’ in both Virginia and South Carolina. . . . Also, although the number of African Americans holding elected office had increased significantly, they continued to face barriers to election for statewide positions. Congress found that not one African American had yet been elected to statewide office in Mississippi, Louisiana, or South Carolina.” Id. at 862 (citing H.R.Rep. No. 109–478, at 12-25 (2006)); see also Protecting Minority Voters: The Voting Rights Act at Work 1982-2005, Nat’l Comm’n on Voting Rights Act, at 38 (Feb. 2006) (“[O]ften it is only after [Black citizens] have been first appointed to a vacancy that they are able to win statewide office as incumbents.”).
The Supreme Court often professes, when called upon to judge the constitutionality of legislative acts, to afford “great weight to the decisions of Congress.”81Columbia Broad. Sys. Inc. v. Democratic Nat’l Comm., 412 U. S. 102, 102 (1973). Such deference has been particularly afforded where Congressional acts “are based in part on empirical determinations.”82Board of Educ. v. Mergens, 496 U.S. 226, 251 (1990). Rather than give “the deference due to ‘the duly enacted and carefully considered decision of a coequal and representative branch of our Government,’”83Id. (quoting Walters v. National Assn. of Radiation Survivors, 473 U.S. 305 (1985)). Roberts dismissed Congress’s findings in 2006 with a curt rhetorical handwave. Indeed, the majority in Shelby County hardly mentioned the 15,000-page report Congress compiled to justify reauthorizing the VRA, choosing instead to deride the report’s findings because they showed that Black voter registration and turnout had improved since 1965.84“Regardless of how to look at the record, however, no one can fairly say that it shows anything approaching the ‘pervasive,’ ‘flagrant,’ ‘widespread,’ and ‘rampant’ discrimination that faced Congress in 1965, and that clearly distinguished the covered jurisdictions from the rest of the Nation at that time.” Shelby Cnty. Ala. v. Holder, 570 U.S. at 554 (2013) (quoting Katzenbach, 383 U.S., at 308, 315, 331, 86 S. Ct. 803, 15 L. Ed. 2d 769). The majority elected to ignore the fact that Congress—despite noting improvement in Black voter registration and turnout had improved since 1965—determined by statistical, empirical means that the primary evil of voter suppression had not yet been fully extinguished and therefore the VRA should remain in place.85Shelby Cnty., Ala., 570 U.S. at 565-66 (Ginsburg, J., dissenting). The majority claimed that it is not ignoring the Congressional report, but rather recognizing that the report played no role in shaping the coverage formula in Section 4(b).86Id. The majority made a facile argument; because the coverage formula in Section 4(b) was not completely overhauled based on the new data from the Congressional report, it is outdated and does not reflect current conditions to justify an exercise of the Fifteenth Amendment.87Id. at 553. Yet again, the majority ignored the fact that Congress’s findings ultimately concluded that invidious race discrimination apropos of voting rights persisted throughout covered localities.88See id. at 571 (Ginsburg, J., dissenting) (citing H.R. Rep. No. 109–478, at 21) (“All told, between 1982 and 2006, DOJ objections blocked over 700 voting changes based on a determination that the changes were discriminatory. Congress found that the majority of DOJ objections included findings of discriminatory intent, and that the changes blocked by preclearance were ‘calculated decisions to keep minority voters from fully participating in the political process.’”). Indeed, during oral arguments before the Supreme Court, Justice Antonin Scalia opined that Congress’s renewal of the VRA was, in fact, not due to this plethora of empirical evidence, but rather because Congress limply sought to perpetuate “racial entitlements.”89See Sean Lengell, Scalia ‘racial’ Comment on Voting Rights Draws Fire, Wash. Times (Feb. 23, 2013), https://www.washingtontimes.com/news/2013/feb/28/scalia-racial-comment-draws-fire/. Whether driven by zealous determination to overturn the VRA—or perhaps by an insidious naivete that racism is dead—the Shelby County majority believed that Section 4(b) was a relic of 1965, and thus in 2013, did not survive scrutiny under the Fifteenth Amendment.90“Congress . . . must identify those jurisdictions to be singled out [under Sections 4(b) and 5] on a basis that makes sense in light of current conditions.” Shelby Cnty., Ala., 570 U.Sat 553. While the Court did not issue a ruling on the constitutionality of Section 5, without a coverage formula under Section 4(b), Section 5 is now defunct.91Id. at 569 n.1 (Ginsburg, J., dissenting).
After 2013, formerly covered states, counties, and townships were no longer required to seek federal preclearance before enacting new voting procedures. Surely then, if racial voter suppression is simply yesterday’s problem as the majority suggests, the dismantling of Sections 4(b) and 5 would have little to no effect on voter registration and turnout. Shockingly, weakening a law designed to inhibit racial discrimination that has plagued the United States for centuries did not have a negligible effect on voting.92See infra notes 94-95 and accompanying text. Almost immediately after the Shelby County decision, formerly covered localities enacted new voting procedures that disproportionately impact racial minorities.93See, e.g., U.S. Comm’n on Civil Rights, An Assessment of Minority Voting Rights Access in the United States, 10-11 (2018) (“[A]ccess to the ballot for minority voters has been impacted in the time period covered by this report (from the 2006 VRA Reauthorization to [2018)]. . . . [by] (i) strict voter ID laws, (ii) greater restrictions on voter registration procedures, (iii) cuts to early voting, and (iv) voter access to polling places, language access, and access for persons with disabilities.”). Many formerly covered localities purged hundreds of thousands of voters in the years after the Supreme Court’s decision.94Catalina Felder & Michael G. Miller, Voter Purges After Shelby: Part of Special Symposium on Election Sciences, 48 American Pol. Rsch. 687-88 (June 2020). As a result, the gulf between voter turnout amongst White and Black voters has widened since the decision in Shelby County.95“The racial turnout gap — or the difference in the turnout rate between white and nonwhite voters — is a key way of measuring participation equality. We find that the gap has consistently grown since 2012 and is growing most quickly in parts of the country that were previously covered under Section 5 of the 1965 Voting Rights Act, which was suspended by the Supreme Court in its 2013 decision in Shelby County v. Holder.” Kevin Morris & Croyn Grange, Growing Racial Disparities in Voter Turnout, 2008–2022, Brennan Cntr. for Justice (Mar. 2, 2024).
In 1966, the Supreme Court said of the VRA that its “constitutional propriety . . . must be judged with reference to the historical experience which it reflects.”96South Carolina v. Katzenbach, 383 U.S. 301, 308 (1966). In 2013, the Supreme Court came to the opposite conclusion: the historical experience reflected in the VRA is inconsequential, for racial discrimination is no more.97See Shelby Cnty., Ala., 570 U.S. at 532.
B. Weakening Section 2
In Brnovich v. Democratic Nat’l Comm., eight years after Shelby County, the Supreme Court had the opportunity to review another provision of the VRA: Section 2.98Madeline Carlisle & Sanya Mansoor,The Supreme Court Will Hear a Case that Could Weaken What’s Left of the Voting Rights Act, Time (Mar. 1, 2021), https://time.com/5943138/supreme-court-voting-rights-arizona/. Ahead of the 2016 General Election, Arizona (formerly covered by Sections 4(b) and 5) enacted two new voting laws, one of which (“H.B. 2023”) “make[s] it a crime for any person other than a postal worker, an elections official, or a voter’s caregiver, family member, or household member to knowingly collect an early ballot—either before or after it has been completed”; the second Arizona law (“out-of-precinct policy” or “OOP”) empowers state officials to discard ballots cast in the wrong district.99Brnovich v. Democratic Nat’l Comm., 594 U.S. 647, 662 (2021). The Governor of Arizona at that time claimed that these laws are necessary to combat voter fraud.100Nina Totenberg, The Supreme Court Deals a New Blow to Voting Rights, Upholding Arizona Restrictions (last updated July 1, 2021), https://archive.ph/20210707042252/https://www.npr.org/2021/07/01/998758022/the-supreme-court-upheld-upholds-arizona-measures-that-restrict-voting#selection-863.0-863.83. However, voter fraud is an extreme rarity—essentially a nihility—in American elections.101See id.; see also Debunking the Voter Fraud Myth, Brennan Cntr. for Justice (Jan. 17, 2017); see also Brnovich, 594 U.S. at 727 (Kagan, J., dissenting) (quoting Democratic Nat’l Comm. v. Reagan, 329 F. Supp. 3d 824, 852 (D. Ariz. 2018)) (“[T]here has never been a case of voter fraud associated with ballot collection charged in Arizona.”). Indeed, taking a proverbial peek behind the curtain reveals a far more insidious motivation. The Arizona laws have disproportionately made voting more difficult for non-White voters, particularly Native Americans.102Brnovich, 594 U.S at 718 (Kagan, J., dissenting). Arizona has one of the highest populations of Native Americans in the country.103Arizona alone has just under 10% of the country’s total population of Native Americans. See U.S. Census Bureau, Arizona (2020). When voting in national or state elections, Native Americans typically need to travel longer distances than other racial groups to vote.104Brnovich, 594 U.S. at 719 (Kagan, J., dissenting). Part of this is due to the fact that Native American tribal reservations often lack traditional addresses from which to mail individual ballots.105Matt Vasilogambros, For Some Native Americans, No Home Address Might Mean No Voting, Pew Charitable Trusts (Oct. 4, 2019); see also Beth Greenfield, A Young Navajo Woman Inspires Her Community to Head to Polls on Horseback: ‘Our ancestors fought for this right’, Yahoo! (Nov. 2, 2020). Thus, prior to H.B. 2023’s enactment, Native American voters—more so than White voters—relied on neighbors and members of their communities to turn in ballots.106Brnovich, 594 U.S. at 725 (Kagan, J., dissenting) (citing Reagan, 329 F. Supp. 3d at 870). The out-of-precinct policy, which discards incorrectly submitted ballots, similarly burdens Native American voters; polling places used in the Navajo and Apache Nations’ tribal and county elections did not always correlate with those used for Arizona state and national elections.107Interview with Bruce L. Adelson, Adjunct Professor of Law Univ. of Pittsburgh School of Law and Former DOJ Voting Section Senior Trial Attorney (Nov. 16, 2024). This often resulted in Native American voters going to the wrong polling place for state and national elections and having their ballots discarded.108Id. The OOP in particular affected other racial minorities as well, resulting in a statistically significant discriminatory impact whereby non-White voters’ ballots were discarded at a far higher rate than those of White voters.109Brnovich., 594 U.S. at 721 (Kagan, J., dissenting) (internal citations omitted) (“[b]allots cast by minorities are more likely to be discarded. In 2016, Hispanics, African Americans, and Native Americans were about twice as likely—or said another way, 100% more likely—to have their ballots discarded than whites. And it is possible to break that down a bit. Sixty percent of the voting in Arizona is from Maricopa County. There, Hispanics were 110% more likely, African Americans 86% more likely, and Native Americans 73% more likely to have their ballots tossed. Pima County, the next largest county, provides another 15% of the statewide vote. There, Hispanics were 148% more likely, African Americans 80% more likely, and Native Americans 74% more likely to lose their votes. The record does not contain statewide figures for 2012. But in Maricopa and Pima Counties, the percentages were about the same as in 2016. Assessing those disparities, the plaintiffs’ expert found, and the District Court accepted, that the discriminatory impact of the out-of-precinct policy was statistically significant—meaning, again, that it was highly unlikely to occur by chance”).
The Democratic National Committee (“DNC”) sought to enjoin Arizona from enforcing these laws.110Democratic Nat’l Comm. v. Hobbs, 948 F.3d 989, 1048 (9th Cir. 2020) (O’Scannlain, J., dissenting). The laws stayed in place during the 2016 election, after which the district court ruled against the DNC.111Id. However, the Ninth Circuit Court reversed this decision.112Id. at 1046. Applying the results test established by the 1982 amendment to Section 2, the Court found that both Arizona laws violated Section 2.113Id. First, both laws resulted in disproportionately higher numbers of discarded ballots amongst non-White voters.114Id. at 1032-33. Compared to White voters in the 2016 election, Native, Hispanic, and African-American voters were far more likely than White voters to vote out-of-precinct and more likely to lack mail and transportation services (thus making them more dependent on community members to collect and turn in ballots).115Id. at1045-46. Second, looking to the test created by the Senate Factors and Gingles, the Court held that the enactment of H.B. 2023 and the OOP were indicative of “social and historical conditions’ that have or currently produce ‘an inequality in the opportunities enjoyed by [minority] and White voters to elect’” candidates of choice.116Id. at 1032. (quoting Gingles, 478 U.S. at 47; 52 U.S.C. § 10301(b)). The Court cited Arizona’s long history of voter discrimination prior to achieving statehood, as well as Arizona’s current unresponsiveness to the state’s minority population.117Id. at 1017, (“Arizona’s history of discrimination dates back to 1848, when it first became an American political entity as a United States territory.”). The Court alternatively applied the stricter intent test, finding that H.B. 2023 was enacted with an animus of invidious discrimination.118Id. at 1040–41. The Court cited the propensity in the Arizona legislature of the belief in demonstrably false claims voter fraud, as well as a video circulated by Arizona Republicans depicting a non-White man apparently dropping off ballots at a polling place.119Hobbs, 948 F.3d at 1040 (citingReagan, 329 F. Supp. 3d at 870–71). Indeed, the district court found that the Arizona state legislature knew what the effect of H.B. 2023 would be on Arizona’s minority population.120Id. at 1041 (citing Reagan, 329 F. Supp. 3d at 870). The Court believed that in absence of widespread misconceptions about voter fraud and the “racially tinged” video, H.B. 2023 would not have passed.121Hobbs, 948 F.3d at 1039. Both the district court and Ninth Circuit Court found present a partisan and racial impetus for H.B. 2023 and the OOP; such concerns were vindicated by remarks made by the attorney for the Arizona Republican Party, Michael Carvin, during oral arguments before the Supreme Court.122Abigail Weinberg, A GOP Lawyer Says the Quiet Part Out Loud in SCOTUS Voting Rights Case, Mother Jones (Mar. 2, 2021) https://www.motherjones.com/mojo-wire/2021/03/gop-lawyer-says-the-quiet-part-out-loud-in-scotus-voting-rights-case/. Carvin told the Supreme Court of the United States that providing racial minorities with easier access to the polling place “puts [the Republican Party] at a competitive disadvantage relative to Democrats.”123Id.
It should be no surprise that the Supreme Court reversed the Ninth Circuit’s decision and held that neither H.B. 2023 nor the OOP violated Section 2.124Brnovich, 594 U.S. at 647. In a 6-3 decision, the majority opinion (authored by Justice Samuel Alito and joined by Roberts), elected to ignore the district and circuit court’s findings that certain minority groups were burdened by H.B. 2023 and the OOP. The Court suggests that “[h]aving to identify one’s own polling place and then travel there to vote does not exceed the ‘usual burdens of voting’” and that Arizona voters can simply mail-in their ballot or drop it off at a post office.125Id. at 650–51. In this instance, the Court failed to consider for whom it is most burdensome to vote. The Court’s suggestion that every Arizonan has easy access to mail-in voting is naïve at best and willingly ignorant at worst. As aforementioned, it is, in fact,burdensome for many non-White, rural (i.e. Native American) voters who lack traditional addresses and who disproportionately must go to different polling places for different elections.126See sources cited supra notes 103-105. The Court held that the Ninth Circuit erred in applying a two-part results test looking to the disparate impact and whether that impact had a connection to social and historical conditions giving rise to discrimination.127Brnovich, 594 U.S. at 655. The Ninth Circuit did not invent this test; such a test was employed by other circuits in Section 2 cases as well.128See Dale E. Ho,Building an Umbrella in a Rainstorm: The New Vote Denial Litigation Since Shelby County,127Yale L.J.F. 802–09 (2018) Moreover, the Court declined to reapply the Gingles test and Senate Factors, holding that the Ninth Circuit erred in doing so because H.B. 2023 and the OOP are mere “time, place, or manner voting rule[s]” and only “vote-dilution” cases beget such review.129Brnovich, 594 U.S. at 672–73. Instead, the Court concocted five “guideposts”130Id. at 666–72. to assist in examining whether, “based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of [a racial minority]” under Section 2(b).13152 U.S.C. § 10301. Perhaps these “guideposts” first appeared to Justice Alito in a dream, for they had never been considered in any VRA case prior to Brnovich.132Leading Cases, Voting Rights Act of 1965 — Section Two — Disparate Impact — Brnovich v. Democratic National Committee, 135 Harv. L. Rev. 481, 485 (2021).According to the Court, in determining whether elections are equally open under Section 2(b), courts should consider:
(1) the size of the burden on voters beyond mere inconveniences; (2) the law’s departure from “standard practice when [Section 2] was amended in 1982”; (3) the size of the disparity; (4) the means of voting other than the one burdened by the challenged policy; and (5) the state’s interest in promulgating the electoral practice.133Id.
The Court noted that Arizona had a particularly strong interest in ensuring its elections would proceed without voter fraud, yet never once acknowledged that the widespread voter fraud that the Arizona legislature considered simply does not occur.134See generally Brnovich, 594 U.S. at 716 (Kagan, J., dissenting) (“But those interests [including preventing voter fraud] are also easy to assert groundlessly or pretextually in voting discrimination cases. Congress knew that when it passed Section 2. . . . In that regard, the past offers a lesson to the present. Throughout American history, election officials have asserted anti-fraud interests in using voter suppression laws.”).
The Supreme Court’s decision in Brnovich is chilling for a number of reasons. The Court chose to throw out well-established tests to judge Section 2 claims, supplanting them with five arbitrary factors that the Court appears to have come up with on the spot.135See sources citedsupra notes 125–31. The Court expressed increasing skepticism—if not hostility—toward the utility of disparate impact in VRA claims, and ignored social, economic, and historical conditions that have made it more difficult for non-White Arizonans to vote.136See Brnovich, 594 U.S. at 673–77. Going forward, it will be harder for VRA plaintiffs to successfully demonstrate a violation of Section 2. Perhaps even more concerning is the concurring opinion authored by Justice Neil Gorsuch and joined by Justice Clarence Thomas. The concurrence is a mere eighty-seven words and opines very little on what was written in either the majority or the dissent.137See id. at 690 (Gorsuch, J., concurring). Instead, Gorsuch and Thomas chose to opine on a tangential matter: whether Section 2 provides for a private cause of action.138Id. This was not at issue in Brnovich;courts, evidently including the Supreme Court itself, have always assumed that Section 2 implicitly allows private citizens to bring VRA claims.139See supra note 25, at 2. Gorsuch and Thomas’s concurrence is naught but a thinly veiled invitation for future litigation to challenge this assumption. They would not have to wait long before someone took them up on their offer.
C. The Future of Section 2
The assumption that Section 2 gives private plaintiffs the right to sue for alleged VRA violations goes back to City of Mobile.140See generally City of Mobile, Ala. v. Bolden, 446 U.S. 55 (1980). The Court proceeded in that case under the assumption that “for present purposes . . . there exists a private right of action to enforce this statutory provision.”141Id. at 60. The assumption that Section 2 allows private plaintiffs to sue has always given the VRA teeth.142“The vast majority of Voting Rights Act claims are brought by private citizens and civil rights groups, who foot the bill for time-consuming litigation to protect voting rights. The Department of Justice, with limited staff and resources, typically brings just a small fraction of the cases fought nationally. . . . ‘If this ruling were allowed to stand, it would decimate the Voting Rights Act,’ Rick Hasen, an election law expert at the UCLA School of Law, said.” Jane C. Timm, Federal Court Threatens to Deal a Death Blow to the Voting Rights Act,NBC News, https://www.nbcnews.com/politics/politics-news/federal-court-guts-voting-rights-act-denying-citizens-groups-right-sue-rcna126023 (last updated Nov. 20, 2023). Indeed, between 1982 and 2024, the overwhelming majority (96.4%) of VRA cases with published opinions brought under Section 2 were brought by private plaintiffs.143See Section 2 Cases Database, Michigan Law Voting Rights Initiative (Aug 8, 2024, 6:20pm) https://perma.cc/SCQ3-SP72. If the Supreme Court were to suddenly reverse this decades-old precedent, it would drastically weaken the strength of the VRA. Without a private cause of action to enforce Section 2, enforcement thereof would be left to the whims of the United States Attorney General.144Ellen D. Katz, Curbing Private Enforcement of the Voting Rights Act: Thoughts on Recent Developments, Mich L. Rev., Oct. 2024, at 26. It seems that Justices Gorsuch and Thomas believe that the “present purposes” that existed when City of Mobile was decided in 1980 are no longer salient.
With Justices Gorsuch and Thomas all but begging for someone to challenge the assumption that Section 2 provides for a private cause of action, federal courts have since split on this issue.145See supra note 23. The circuit courts are split as to whether this long-held assumption is still valid.146Id. The Fifth, Sixth, and Eleventh Circuits have all held that Section 2 does afford a private cause of action.147See id.; see also Robinson v. Ardoin, 86 F.4th 574 (5th Cir. 2023) (“One section of the [VRA] provides that proceedings to enforce voting guarantees in any state or political subdivision can be brought by the Attorney General or by an ‘aggrieved person.’ We conclude that the Plaintiffs here are aggrieved persons . . . and that there is a right for these Plaintiffs to bring these claims”) (quoting 52 U.S.C. § 10302);see generally Mixon v. Ohio, 193 F.3d 389 (6th Cir. 1999) (holding without analysis that Section 2 provides a private cause of action); Ala. State Conference of N.A. for Advancement of Colored People v. Alabama, 949 F.3d 647 (11th Cir. 2020) (Although the case was later dismissed as moot, the Eleventh Circuit concluded “[t]he VRA, as amended, clearly expresses an intent to allow private parties to sue the States. The language of § 2 and § 3, read together, imposes direct liability on States for discrimination in voting and explicitly provides remedies to private parties to address violations under the statute.”). As of 2024, the Eighth Circuit is the first and only circuit court to have broken away from this consensus.148Supra note 23, at 2. In 2021, the Arkansas State Conference of the NAACP and the Arkansas Public Policy Panel sought a preliminary injunction against Arkansas’ state legislative redistricting plan, alleging that the new legislative districts diluted149This is what the Supreme Court in Brnovich referred to as a vote dilution claim, where a plaintiff alleges that a state has inhibited the ability of a racial minority to elect candidates of choice. Id. This is opposed to a vote denial or “time, place, or manner” claim, where—as in Brnovich—a claim challenging specific state or local election procedures is brought. Id. the voting power of African-American voters.150Arkansas State Conf. NAACP v. Arkansas Bd. of Apportionment, 586 F. Supp. 3d 893, 898 (E.D. Ark. 2022), aff’d, 86 F.4th 1204 (8th Cir. 2023). The District Court for the Eastern District of Arkansas believed that the plaintiffs presented a strong case on the merits, and even acknowledged that Arkansas’s redistricting plan likely violated Section 2.151Id. at 897. However, the district court declined to proceed to a consideration of the case on its merits, deciding instead to become the first federal court in the country to rule that Section 2 does not allow private plaintiffs to sue.152Arkansas State Conf. NAACP, 586 F. Supp. 3d at 906 n.73. The district court looked to the Supreme Court case Alexander v. Sandoval, which established a two-part test to determine whether, absent express congressional intent, a federal statute provides a federal litigant with a private cause of action.153Id. at 906–07. Congress must (1) use “rights-creating language” in the statute; and (2) establish a private remedy.154Id. at 907. Looking to the first prong of the Sandoval test, the district court found that Section 2 is “compliantly silent” as to any “rights-creating language.”155Id. at 908. The court looked instead to Section 12 of the VRA, which expressly allows for the Attorney General to estop an alleged violation of the VRA.156Id. at 908-09;52 U.S.C. § 10308(d). Section 12’s vesting of legal imprimatur in the Attorney General was also the basis of the court’s decision that Congress did not establish a private remedy in Section 2.157 “[T]he Court concludes that the text and structure of the Voting Rights Act does not ‘manifest[ ] an intent “to create . . . a private remedy”’ for § 2 violations.” Id. at 911 (quoting Gonzaga Univ. v. Doe, 536 U.S. 273, 284 (2002)).
On appeal, the Eighth Circuit reached the same conclusion.158Ark. State Conf. NAACP v. Ark. Bd. of Apportionment, 86 F.4th 1204, 1218 (8th Cir. 2023). Applying Sandoval again, the circuit court agreed with the district court that the language of Section 2 is simply too nebulous to divine any rights-creating language therefrom.159Id. at 1209. The Eighth Circuit also expounded on the district court’s analysis under the second prong of Sandoval.160Id. at 1210. The court described an “elemental canon” that it believed applied to the relationship between sections 2 and 12.161Id. (citing Karahalios v. Nat’l Fed’n of Fed. Emps., Loc. 1263, 489 U.S. 527, 533 (1989)). Since Section 12 empowers the Attorney General to enforce Section 2, the circuit court held that courts should be reluctant to find Section 2 implies an additional private remedy when Section 12 already exists.162Id. at 1217. To support its position, the Eighth Circuit made an interesting claim that “[e]veryone agrees that § 2 itself contains no private enforcement mechanism.”163Id. at 1210. Ironically, the court was silent as to who or what it believes “everyone” to be.
Such a bold claim—compounded by both courts’ Sandoval analyses—creates a narrative that we know little of whether Congress intended to provide a private cause of action under Section 2. To the contrary, the legislative history of the VRA reveals Congress’s intent is far from obscure. It is no accident that federal courts have operated under the assumption established in City of Mobile for decades. During the process of drafting the 1982 amendments to the VRA, both the House of Representatives and the Senate confirmed the Supreme Court’s assumption in City of Mobile was a correct reading of the text.164Katz, supra note 140, at 31. The House Judiciary Committee wrote “[i]t is intended that citizens have a private cause of action to enforce their rights under Section 2” (emphasis added).165H.R. Rep. No. 97-227, at 32 (1981). The aforementioned Senate report on the amendments, which provided the Senate Factors and has since become axiomatic for interpreting the VRA after 1982,166Thornburg, 478 U.S. at 43 n.7. stated that “the existence of the private right of action under Section 2, as has been clearly intended by Congress since 1965.”167S. Rep. No. 97-417, at 30 (1982).
Curiously, the Eighth Circuit does not seem to consider members of the Senate or the House to be included in its definition of “everyone,” when the court acknowledged and quickly dismissed the significance of these statements.168Ark. State Conf. NAACP, 86 F.4th at 1213–14. The court ultimately held that, despite clear and explicit intent on the part of those who drafted the 1982 amendments to the VRA, the lack of any explicit mention in the text itself was the dispositive death knell of the sixty-year assumption.169Id. at 1214. (“If the 1965 Congress ‘clearly intended’ to create a private right of action, then why not say so in the statute? If not then, why not later, when Congress amended § 2?”). Courts generally give weight to the legislative history when determining Congressional intent,170“In determining congressional intent the greatest weight is almost always accorded to the plain meaning of a statute. Legislative histories to laws are used to help clarify the meaning of a statute, especially when that meaning is in doubt. Although there is considerable variation, generally, in a legislative history of a U.S. public law, the greatest weight is usually accorded to the joint explanatory statement in a bill’s conference report (when there is one) followed by the explanations and summaries in committee reports.” Richard J. McKinney & Ellen A. Sweet, Federal Legislative History Research: A Practitioner’s Guide to Compiling the Documents and Sifting for Legislative Intent, Law Librarians’ Soc’y of Washington, D.C., https://www.llsdc.org/federal-legislative-history-guide (last updated Sept. 2019) (emphasis removed). but the Eighth Circuit’s vagaries demanded that just this once, a statute’s legislative history is patently unreliable.171See Ark. State Conf. NAACP, 86 F.4th at 1213 (“There are many reasons to doubt legislative history as an interpretive tool.”). A recent decision by the United States District Court for the Southern District of Mississippi put it quite succinctly: “[i]f a court now holds, after almost [sixty] years, that cases filed by private individuals were never properly brought, it should be the Supreme Court, which has the controlling word on so momentous a change.”172Miss. State Conf. NAACP v. State Bd. of Election Commissioners, No. 3:22-CV-734-DPJ-HSO-LHS, 2024 WL 3275965, at 412 (S.D. Miss. July 2, 2024). Instead, the Eighth Circuit and the district court bestowed upon themselves the role of harbingers of a change that has cataclysmic implications for the strength of the VRA.
While this ruling is currently limited to the Eighth Circuit, that is little comfort. In seven states, any challenge to Section 2 must now be brought by the DOJ.173See generally Turtle Mountain Band of Chippewa Indians, 137 F.4th at 721. This makes it substantially more difficult for VRA challenges to be brought, as “[t]he achievement of the [VRA’s] laudable goal [would] be severely hampered, . . . if each citizen were to depend solely on litigation instigated at the discretion of the Attorney General” and the limited resources of the DOJ.174Statement of Interest of the United States, at 8, Ark. State Conf. NAACP v. Ark. Bd. of Apportionment, 586 F. Supp. 3d 893 (E.D. Ark. 2022), aff’d, 86 F.4th 1204 (8th Cir. 2023) (quoting Allen v. State Bd. of Elections, 393 U.S. 544, 556 (1969)). If the plaintiffs in Arkansas State Conf. NAACP were to appeal, it is highly likely that the Supreme Court would take the case.175See Sup. Ct. R. 10(a)–(c). Consider the attitudes of several of the current justices toward the VRA: Justice Alito’s Brnovich opinion upset previously settled factors for considering Section 2 violations; Justices Gorsuch and Thomas were practically frothing at the mouth in their Brnovich concurrence for an opportunity to challenge Section 2’s assumed private right of action; and most importantly, Justice Roberts has shown hostility to the VRA since he was a young lawyer at DOJ. That’s one justice short of a majority. While the Arkansas NAACP decided not to appeal the Eighth Circuit’s decision,176Courtney Cohn, Arkansas NAACP Will Not Appeal Decision that Gutted Voting Rights Act in Seven States, Democracy Docket (July 1, 2024), https://www.democracydocket.com/analysis/arkansas-naacp-will-not-appeal-decision-that-gutted-voting-rights-act-in-seven-states/. if this case had made it to the Supreme Court, there is little question that the circuit split created by Arkansas State Conf. NAACP would have been resolvedin the Eighth Circuit’s favor.
In Arkansas State Conf. NAACP, the plaintiffs attempted to amend their complaint alleging violations under 42 U.S.C. § 1983, which the Eighth Circuit denied.177Ark. State Conf. NAACP, 86 F.4th 1204 at 1212-13, 1218. However, the Eighth Circuit declined to issue a ruling as to whether 42 U.S.C. § 1983 allowed private plaintiffs to seek enforcement of the VRA or the Fifteenth Amendment.178Id. § 1983 imposes liability on “[e]very person who, under color of [law] . . . subjects, or causes to be subjected, any . . . person . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws.”17942 U.S.C. § 1983. For a brief few years after Arkansas State Conf. NAACP, § 1983 provided a loophole to the Eighth Circuit’s ruling; private plaintiffs could theoretically have used § 1983 to seek enforcement of their rights under Section 2 of the VRA without having to rely on the vagaries of the Attorney General and the DOJ.180Recent Case, Arkansas State Conference NAACP v. Arkansas Board of Apportionment, 137 Harv. L. Rev. 2424, 2431 (2024). Indeed, in Turtle Mountain Band of Chippewa Indians v. Howe, the U.S. District Court for the District of North Dakota (located in the Eighth Circuit) found that Section 2 of the VRA is enforceable under § 1983.181Turtle Mountain Band of Chippewa Indians v. Jaeger, No. 3:22-CV-22, 2022 WL 2528256, at *6 (D.N.D. July 7, 2022), rev’d, 137 F.4th 710 (8th Cir. 2025). Unfortunately, it was not to last. In 2025, the Eighth Circuit reversed the district court’s ruling and held that § 1983 cannot be used as a mechanism to enforce Section 2 of the Voting Rights Act.182Turtle Mountain Band of Chippewa Indians, 137 F.4th at 721;see also Rick Hasen, Breaking: Eighth Circuit, on 2-1 Vote, Holds Private Plaintiffs Cannot Enforce Section 2 of the Voting Rights Act through a Section 1983 Action, a Ruling Which if Applied Nationally Would Devastate Voting Rights Act Enforcement in the United States, Election Law Blog (May 14, 2025), https://electionlawblog.org/?p=149897. If the Eighth Circuit’s disposition in these cases proves anything, it is that voting rights advocates must continue to fight for the promise of the VRA.183Recent Case, supra note 181.
V. Conclusion
What was once the goddamndest, toughest voting rights law in our nation’s history has become a shadow of its former self. The dismantling of Sections 4(b) and 5—the former found unconstitutional and the latter now defunct—has invariably led to renewed efforts to suppress non-White voters in formerly covered jurisdictions.184Kevin Morris, Peter Miller, & Coryn Grange, Racial Turnout Gap Grew in Jurisdictions Previously Covered by the Voting Rights Act, Brennan Cntr. for Justice (Aug. 20, 2021), https://www.brennancenter.org/our-work/research-reports/racial-turnout-gap-grew-jurisdictions-previously-covered-voting-rights. The Supreme Court’s spontaneous creation of five new factors to judge Section 2 claims, as well as its indifference toward evidence of disparate impact, hampers the ability of Section 2 plaintiffs to protect their rights.185Maureen Edobor, The Supreme Court Is Writing a Slow-Motion Eulogy for One of America’s Greatest Achievements, Slate (July 16, 2025) https://slate.com/news-and-politics/2025/07/supreme-court-mlk-voting-rights-act-anniversary.html (“The Voting Rights Act was always meant to be a living safeguard, its strength rooted in community enforcement. Section 2 has allowed private citizens—not just the government—to sue when states draw district lines or enact voting laws that dilute minority voting power. It is this private right of action that has given the act its sharpest teeth. Over the past 12 years, however, the Supreme Court has systematically dulled those teeth. In Shelby County v. Holder, the court struck down the formula that determined which states had to preclear voting changes with the federal government, effectively paralyzing Section 5. In Brnovich v. Democratic National Committee, the court made it far harder to prove racial discrimination in voting under Section 2, introducing vague ‘guideposts’ that encourage restrictive laws to flourish.”). Now, there is increasing doubt as to whether Section 2 plaintiffs can even exist.186Ark. State Conf. NAACP, 86 F.4th at 1217–18. Developments in VRA jurisprudence since 2013 are neither accidents nor isolated incidents; the Roberts Court in no uncertain terms evinces a desire to weaken the VRA’s effectiveness.
What, then, is the future of the VRA? With the re-election of Donald Trump in the 2024 General Election, the VRA’s future seems dimmer still. As of the writing of this note, Justices Alito and Thomas are seventy-four and seventy-six years old, respectively.187Charlie Savage et al., Should Alito and Thomas be Pushed to Retire? Conservatives are Divided, N.Y. Times (Nov. 9, 2024), https://www.nytimes.com/2024/11/09/us/politics/alito-thomas-retire-debate.html. Although far from a foregone conclusion, it nonetheless remains in the realm of possibility that one or both will retire from the Supreme Court while Trump is in office.188See id.; but see Jess Bravin, Justice Samuel Alito Plans to Remain on Supreme Court, WSJ (Nov. 12, 2024), https://www.wsj.com/us-news/law/justice-samuel-alito-plans-to-remain-on-supreme-court-f14aac9e?mod=hp_lead_pos5 (“Justice Samuel Alito has no plans to step down from the Supreme Court, people close to the justice said, tamping down speculation among legal activists that the 74-year-old jurist was readying to retire so that President-elect Donald Trump could fill his seat with a younger conservative.”). If Justices Alito and Thomas both remain on the court, the result is predictable; they are both known quantities. If one or both retire, the result is marginally less predictable. Trump’s appointees have proven averse to a robust VRA.189See, e.g., Brnovich, 594 U.S. at 690 (Gorsuch, J., concurring); see also Zach Montellaro, Josh Gerstein, & Andrew Howard, Conservative Justices Seem Poised to Weaken Voting Rights Act, Politico (Oct. 15, 2025), https://www.politico.com/news/2025/10/15/supreme-court-voting-rights-act-argument-00609187(“Justice Brett Kavanaugh, whose vote will likely be pivotal in [deciding Louisiana v. Callais], repeatedly suggested that race-based remedies under the Voting Rights Act should be permitted only ‘for a limited period of time.’”).. If Trump has the opportunity to appoint one or more justices to the Court, this trend will likely continue.190See generally Stephen Choi & Mitu Gulati, How Different are the Trump Judges?, Vand. L. Rev. (Sept. 21, 2024), (“Unlike other recent presidents, Trump was open about how ‘his’ judges could be depended on to rule in particular ways on key issues he was courting (e.g., guns, religion, and abortion). Other factors, such as age and personal loyalty to Trump, seemed important criteria as well.”).
Ultimately, the promise of the VRA is broken. The VRA is currently at its lowest ebb, weaker now than ever.191“[T]he [Supreme] Court’s actions in Shelby turned the hands of time backward on voting rights.” Daniels, supra note 22, at 48; see Michael J. Klarman, From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality 41, 55, 72, 86 (2004) (stating that the VRA was at its strongest when there existed a “federal takeover of the voting apparatus”); see Ruth Marcus, Step by Step, Conservative Judges are Gutting the Voting Rights Act, Wash. Post (Nov. 28, 2023) https://www.washingtonpost.com/opinions/2023/11/28/voting-rights-act-private-lawsuits/; Adelson, supra note 108. Shelby County and Brnovich enfeeble the VRA nationwide, and while Arkansas State Conf. NAACP and Turtle Mountain Band are binding only in those states in the Eighth Circuit; their legal conclusions could, in the future, become binding nationwide as well. But it would be folly for any voting rights advocate to give in to despair. One hundred years ago, the mere existence of the VRA would be unthinkable.192See Tonya Mossley, The Voting Rights Act is Being Attacked From ‘every possible angle,’ Journalist Says, NPR (Nov. 30, 2023), https://www.npr.org/2023/11/30/1216054095/the-voting-rights-act-is-being-attacked-from-every-possible-angle-journalist-say (“And what the Voting Rights Act did that was absolutely revolutionary was, instead of litigation, it abolished these kind of literacy tests overnight in places like Alabama and Louisiana and Mississippi, so that when you went to vote in Alabama, you no longer had to name all 67 county judges to get on the voting rolls, something that the 67 county judges themselves would not have been able to do if they were ever actually asked that question.”). History is not a straight line forward; for every step forward, there are those who would drag us backward. At the end of the day, the arc of history bends toward justice. A promise broken may yet be a promise renewed.
* Michael D. Adelson is the Articles Editor for Widener Law Review. He is a 3L student at Widener University Delaware Law School, where he expects to receive his J.D. degree in May 2026.
