Power, democracy, and clarity
What does the end of the Voting Rights Act mean?
I like this graph.
I’ve used it in articles, classes and presentations to the public. It shows how registration rates between Black and White voters varied in Louisiana since Reconstruction. In a single image, it tells the story of political power and discrimination. Black voters had power, briefly, then it was taken from them. A series of policies that were more or less explicit in their discriminatory purpose worked as intended, disenfranchising Black voters, and some poor White voters along the way.
This ended with the Voting Right Act of 1965, which removed the ability of governments to put in place facially neutral but clearly discriminatory practices, and in doing so ratcheted up Black registration in Louisiana until it matched White voters. This effect was immediate and enduring across the South.
The VRA increased Black political representation…
…which in turn increased Black economic power by opening up previously barred avenues, like public employment.
The reason I like these graphs is that they are clarifying. They cut through the noise. Not much ambiguity about them. They tell you the story of Reconstruction, Redemption, Jim Crow, and the Civil Rights era. There might have been political squabbles of the day, most obviously an extraordinary realignment of the two major political parties on racial issues. But the big picture is clear: different eras allowed the use of power either toward equality and honoring the constitution, or toward inequality and discrimination.
Being able to step back and see what is happening is easier in retrospect, of course, But we should be able to see what is in front of us now. The Louisiana v. Callais decision from the Supreme Court decision effectively guts what was left of the VRA. So lets be clear about what is happening.
What did the Supreme Court do to our democracy?
What has been the impact of the Roberts Court on democracy? Wealthy people have more political power than everyone else. Partisan actors have more power to reduce voter choice. Black people and other minority groups are offered fewer protections and less visible political representation.
If this seems like hyperbole, lets review the key decisions.
With Citizens United in 2010, the Roberts Court killed any meaningful effort to regulate the flow of money in politics.
The Roberts Court refused to take on gerrymandering when Justice Kennedy was on the court, and then in 2019 said that partisan gerrymandering might be “contrary to democratic principles” but there was nothing they could do about it.
With the Shelby County decision in 2013, it eliminated the pre-clearance section of the VRA, which meant that districts with a record of discriminating against Blacks would no longer need to get permission from the DOJ for their changes. With the 2021 Brnovich case, they further limited the conditions under which laws that made it harder to vote could be considered as discriminatory.
Now with Callais, SCOTUS gave state the green light to redistrict majority Black districts out of existence. The Court insisted it is not overturning the Voting Rights Act, but it made the bar for demonstrating such actions are illegal so high as to be impossible.
What happens next?
Immediately after the Callais decision, multiple Southern states moved to change their voting maps to eliminate remaining majority Black districts. People have already started to vote in Louisiana primaries, but the Governor declared a state of emergency to stop the process in order to redraw maps.
Florida’s existing redistricting efforts got a boost. Tennessee, Alabama and Mississippi officials have pushed their own plans. In all, eight Southern states could redistrict over a dozen seats by eliminating Black-majority districts.
Some of this appears a little too on-the-nose, as when the state leader by the name of Shad White calls for eliminating the only majority Black district in Mississippi.
Tennessee moved first, carving up Memphis to ensure the city could not meaningfully choose its representative in Congress. This led to an extraordinary image of Justin Pearson, a Democratic member of the Tennessee legislature, being denied entry by the Sargent-at-Arms for a legislative meeting that is redrawing the Congressional district he is running in. The picture could be from 1956, or 1886, but it is from 2026.
This response to Callais was entirely predictable. After Shelby, several states changed their laws, leading to almost 100 more restrictive election laws being adopted. Voter roll purges became more common. Black eligible voters became significantly less likely to vote because of Shelby. The racial turnout gap between White and Black voters grew almost twice as quickly in parts of the country that were previously governed by the VRA.
The Shelby decision was based on the premise that race no longer mattered to electoral laws. That premise was proven wrong, but the court moved ahead this week to continue to ignore race. They also blessed the state that kicked of the redistricting wave. Despite a detailed lower court ruling showing that the Texas map was racially gerrymandered, the Supreme Court gave it the go-ahead.
Democratic states like Virginia and California responded to Texas with their own redistricting plans. The pattern seems clear: our country will be made up of institutions that are designed to not accurately represent voter preferences. Parts of the country defined as red and blue will look even more so, ignoring the sizable number of voters who are not represented by the dominant parties. There will be fewer Black faces in Congress, especially from the parts of the United States that once enslaved Black people.
Looking for clarity
Political scientists like to talk about polarization and commentators talk about culture wars because that’s the coin of the realm in their respective fields. But those are not really an explanation for the evolution of the Supreme Court, and I think that’s probably reflective that they are generally overused explanations for shifts in power in America.
Here, I’m drawing a bit here from a point made by the political scientist Jake Grumbach.
The graph I showed you at the top of this piece came from the American Political Science Review. Over the last decade, US domestic political scientists found themselves turning to their comparative colleagues or American history to find useful concepts to explain what is going on. (I am as guilty as anyone in this regard). We took democracy for granted, and struggled to explain what was happening right in front of us.
I think there is an equivalent problem in the commentariat. We are living in an era of unprecedented concentration of wealth and power, an era of extraordinary democratic backsliding. When I read blogs on Substack or op-ed pages, this is featured, but not with the sense of frequency and alarm one might expect. People have set up entire new media operations on the premise that now, now is the perfect time to punch left. (The left has plenty of problems, but attacking your democracy is not one of them). Or now is the time to argue that wokeness is the reason for the backlash we are seeing. People should write what they want, but at some point these perspectives are simply failing to engage in real criticism of power or defend American democracy.
Legacy media that have been captured by the emerging billionaire class are not going to challenge these broader trends. The Washington Post said that concerns about the Texas gerrymander was exaggerated, but the response from Virginia, which unlike Texas was at least approved by the public, was a “power grab by Democrats.”
Polarization or culture war explanations don’t explain what has happened to the Supreme Court in recent decades. The banal explanation is that very wealthy groups organized a project to capture the institution through a series of investments into college campuses and the legal profession, such as with the creation of the Federalist Society. They closely vetted SCOTUS candidates, and invested heavily in political spending that was further enabled by the Court. These groups opposed the VRA and elevated those who embraced an anti-democratic view of America. John Roberts made his opposition to the VRA clear as a lawyer with the Reagan administration. Alito might be a culture war crank, but that is not why he and the other five Republicans signed on to a project of weakening American democracy.
What are the solutions?
Step back and look for clarity: it sure looks like Judges nominated by the Republican Party are willing to overturn laws when it helps the Republican Party protect and extend its power. If you take this point seriously, what are the solutions? Vote harder is not a great recommendation if the Court is making voting processes less representative.
The VRA was crowning achievement of the Civil Rights movement, the product of a civil war, constitutional amendments, and intense political and social battles. Its intent was clear. And it was swept away, bit by bit, by a court whose majority was nominated by a President who lost the popular vote and which is historically unpopular.
Justice Kagan’s opinion on the case explained that the Voting Rights Act:
was born of the literal blood of Union soldiers and civil rights marchers. It ushered in awe-inspiring change, bringing this Nation closer to fulfilling the ideals of democracy and racial equality. And it has been repeatedly, and overwhelmingly, reauthorized by the people’s representatives in Congress. Only they have the right to say it is no longer needed—not the Members of this Court. I dissent, then, from this latest chapter in the majority’s now-completed demolition of the Voting Rights Act.
The VRA was eliminated not because it was no longer necessary, but because it had succeeded in challenging power structures. A court that will do this will eliminate other programs designed to make America more democratic and more fair.
The political scientist Jon Ladd responded to the decision by suggesting we should adjust our expectation that any pro-democracy agendas would be deemed constitutional. If Democrats were able to pass the John Lewis Voting Rights Act, or a national gerrymandering ban, would the Supreme Court allow such policies? Would the Court find a way to block proportional representation? Would they allow the extension of statehood to DC or Puerto Rico?
One of the great cautionary tales of American politics is that Roosevelt’s effort at court packing, which is seen as a dangerous overreach. But today, the conditions are different. “The Supreme Court itself has shown itself to be the enemy of democracy” according to legal scholar Rick Hasen.
Under these conditions, court reform becomes a logical solution. (For a contrary view Steve Vladeck argues that Congress can still make the Supreme Court accountable). It would require more Democrats and more of the general public to buy into the notion that defending democracy requires radical action.
But when the opponents of democracy are radical, the defense has to be clear-eyed. We look at countries like Brazil and South Korea, where leaders have been imprisoned for anti-democratic actions, or Hungary, where there is a purge of Orbanists from government. They recognize the urgency of their moment. Do we?
I was at a conference in Bucharest in Romania last week, a setting which reminds you about the fragility of democracy. On a discussion of democratic backsliding, I proposed the following test:1
Remember when you read a book or watched a movie about the 1930s, and you asked yourself “what would I have done under these conditions?” The answer is: whatever you are doing now.
This was not my framing, though I could not remember where I heard it and asked readers for help so I could give credit. Kudos to Joseph Morris for providing the original quote, which comes from Matthew Miller, a former DOJ spokesman, all the way back in 2017: “If you've ever wondered what you would have done in 1930s Germany or during the civil rights movement, congratulations: you're doing it now.”
It may be time for multi-member districts, which would neuter most gerrymandering efforts and improve opportunities for proportional representation.
As always - thoughtful, clear, and highly useful. Nicely done. And now we have to continue (or begin) the hard work.