The Supreme Court has left limited alternatives for protecting minority voting rights

By Hansi Lo Wang

Minority voters are left with limited alternatives for combatting racial discrimination in redistricting, after the U.S. Supreme Court’s latest undermining of the federal Voting Rights Act.

Remaining options for protecting the collective power of racial-minority voters include state-level voting rights acts and map-drawing strategies, likely in Democratic-controlled states, yet they cannot fully replace the nationwide provisions under Section 2 of the Voting Rights Act that many legal experts say are now practically impossible to enforce.

This week, the high court decided to allow Alabama to use a congressional map that a lower court found intentionally discriminates against Black voters. That ruling has also heightened concerns about the future of racial-minority representation in government — particularly in Southern states where voting is polarized between a white, Republican-leaning majority and a Black, Democratic-leaning minority.

“Today the bulk of Black people live in the states of the old Confederacy. And that is exactly where you’re seeing the worst types of retrenchment,” says Wilfred Codrington III, professor of constitutional law at Yeshiva University’s Cardozo School of Law.

Still, some voting rights advocates are pushing forward with what they see as short-term solutions ahead of a longer-term project of rebuilding the federal Voting Rights Act or even the overall system for electing members of Congress.

State-level voting rights acts provide some of the protection offered by the federal law

State-level voting rights acts offer various anti-discrimination protections for racial-minority voters that go beyond the federal law, and in the month since the Supreme Court’s ruling in Louisiana v. Callais, supporters of these legal protections have reignited calls for more states to enact them.

Democratic lawmakers have recently advanced bills in states including Michigan and New Jersey. The Delaware John Lewis Voting Rights Act is set to be formally introduced Friday.

But unlike the federal Voting Rights Act, its state-level counterparts generally cover only state and local elections. And while around a dozen states have passed these kinds of laws, no state with a unified Republican or divided government has done so, making it unlikely that bills introduced in the Deep South will become law.

Some court watchers are now concerned that enacted state voting rights acts may ultimately be weakened or struck down.

“I’m nervous that the Supreme Court may sort of have those in its crosshairs as well,” says Codrington, the Cardozo law professor.

Just over a week after the court’s conservative supermajority issued its Callais decision, the conservative Public Interest Legal Foundation filed a federal lawsuit over Illinois’ voting rights act, arguing that the law is unconstitutional because it requires an improper use of race in state legislative redistricting.

More lawsuits against these state laws may be coming.

In a social media post on X in April, Jesus Osete, principal deputy assistant attorney general for the Justice Department’s Civil Rights Division, appeared to signal that the Trump administration is paying attention to this fallout.

Osete responded to Maryland Democratic Gov. Wes Moore’s post about signing state voting rights act protections into law the day before the Supreme Court’s decision. Moore said: “Even if Washington won’t protect your vote, I will.”

And Osete replied: “Who’s gonna tell him?”

The DOJ’s public affairs office did not respond to NPR’s request for comment about Osete’s post.

Democratic-controlled states could partisan gerrymander without sacrificing minority representation in Congress

With the ongoing congressional gerrymandering fight expected to continue for the 2028 election, some redistricting observers have raised the possibility that Democratic-controlled states may join Republican-controlled states in breaking up districts where minority voters have a realistic opportunity of electing their preferred candidate.

For Democratic map drawers, that could allow them to spread minority voters who tend to support Democrats into other districts and try to gain additional seats in the U.S. House of Representatives.

But Nick Stephanopoulos, an election law professor at Harvard Law School, says partisan gerrymandering by Democrats doesn’t have to come at the expense of racial-minority representation.

“This tradeoff should not be present in big blue states like Illinois, New York, California and so on,” says Stephanopoulos, who wrote an upcoming Columbia Law Review article on the topic. “It should generally be possible to design maps that are more skewed in a Democratic direction, but that at least maintain current levels of minority representation.”

While not the same as a legal protection, such moves could provide a type of safeguard for some minority voters.

Stephanopoulos says the key behind this redistricting strategy is for mapmakers to distribute Democratic voters “in ways that make more districts reasonably safe, but not overly safe” for Democratic candidates.

The example to follow, Stephanopoulos says, is California’s new congressional map, which Democrats drew to flip five Republican-held seats without eliminating any minority-opportunity districts. The Trump administration argued that the map is “tainted by an unconstitutional racial gerrymander,” but the Supreme Court ultimately allowed California to use it.

That redistricting strategy, however, would not address the court’s weakening of protections for minority voters in Republican-controlled Southern states.

“Only federal action would respond to the vacuum that’s left in the South,” Stephanopoulos says.

Voting rights advocates face longer-term projects

Any federal action is expected to take years, if not longer, given that bipartisan support in Congress for minority-voter protections has dissipated in recent decades.

The path to a shored-up federal Voting Rights Act would likely require Democrats to regain control of both Congress and the White House.

“We will not rest until the John R. Lewis Voting Rights Advancement Act becomes the law of the land and we end the era of voter suppression in America once and for all,” Democratic House Minority Leader Hakeem Jeffries of New York said in a statement released hours after the Supreme Court issued its Callais ruling.

The court’s conservative supermajority, however, may prove to be the ultimate hurdle for a strengthened federal law, according to Stephanopoulos, the Harvard law professor.

“That’s why indirect approaches like tackling partisan gerrymandering might be more sensible right now,” Stephanopoulos says.

During the Biden administration, the then-Democratic-controlled Congress was unable to pass national bans on partisan gerrymandering and mid-decade redistricting that were part of voting rights bills that couldn’t surpass Republican opposition in a closely divided Senate.

Still, Jeffries said in a MS NOW interview last month that passing voting rights protections and exploring “massive judicial reform, state by state and at the federal level” are among the Democrats’ priorities if they win back the U.S. House this November.

Some election reformers are also calling for structural changes in Congress — specifically how voters elect House members. Supporters of replacing the current single-member, winner-take-all districts with a proportional representation system say that the change could help ensure fairer representation of people of color and other minority voters. But such a major shift would require changing a federal law that currently bans it.

In the meantime, Codrington of Cardozo Law School says it’s still worthwhile for states and local communities to move ahead with any attempts for “some measure of fairness” in elections, whether they be new state laws or redistricting strategies.

“States are in this unique position to do some things,” Codrington says. “But we need a federal government to be involved and invested in this problem if we’re going to have any sort of wide promotion of democracy across the United States.”

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