Blind to Color, Blind to Contradiction: The Erosion of the Voting Rights Act

By Allan Kaplan '27

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The Voting Rights Act of 1965 (“VRA”) stands among the most consequential civil rights statutes in American history. (1) The Fifteenth Amendment promises the right to vote to all Americans regardless of skin color, but poll taxes, intimidation, literacy tests, and more made this right unattainable for many Black people across the country. (2) After decades of systematic racial discrimination in the electoral process, mounting public pressure through non-violent protests and sustained civil rights advocacy led to the Voting Rights Act being passed through the Senate with 80% of the vote. (3) Prohibiting through Section 2 any “voting qualification or prerequisite to voting, or standard, practice, or procedure” that would “deny or abridge the right… to vote” because of “race or color,” the VRA stood as a durable safeguard against racial discrimination in voting. (4) Despite this seemingly clear legislation, the scope and practical effectiveness of this provision have come under increasing judicial restriction and scrutiny.

Section 2 of the Voting Rights Act of 1965 occupies a paradoxical position in contemporary election law. In practice, modern United States Supreme Court decisions have produced a body of doctrine that substantially narrows the statute's protections, while the justices making these decisions claim to simply be “updat[ing]” the requirements for its application. (5) Lawmakers have been left with conflicting constitutional obligations on whether they may face liability for including racial opportunity districts or if they may face liability for omitting them. The resulting inconsistency in constitutional doctrine has fostered a framework of litigious delay and uncertainty where gamesmanship and bad-faith argumentation have become a consistent way for lawmakers to achieve their political goals in redistricting. 

The Narrowing Definition of Racial Discrimination

Following its creation in 1965, the VRA received multiple congressional amendments that generally strengthened and reinforced the electoral guardrails the act established. The most important of these for the purposes of Section 2 enforcement occurred in 1982, following City of Mobile v. Bolden (1980). (6) In this case, the Supreme Court interpreted Section 2 as requiring plaintiffs to demonstrate that electoral practices were enacted or maintained with discriminatory intent. The decision effectively limited Section 2 claims by requiring proof of purposeful discrimination, limiting Section 2’s ability to counteract facially neutral policies that produced discriminatory effects.

Congress rejected this narrow interpretation, and amended Section 2 in 1982 to not exclusively require discriminatory intent, allowing discriminatory effect to also count as a violation through a multitude of avenues, such as “historical discrimination,” “use of at-large elections,” and others. (7) The Supreme Court subsequently developed this framework in Thornburg v. Gingles (1986), establishing the foundational test for Section 2 vote dilution claims. (8) Under Thornburg, plaintiffs must generally demonstrate that a minority group is sufficiently large and geographically compact to constitute a majority in a potential district, that the minority electorate is politically cohesive, and that the majority electorate votes sufficiently as a bloc to usually defeat minority-preferred candidates. (9) Once these conditions are established, courts evaluate the broader circumstances surrounding the challenged electoral practice.

This framework allowed plaintiffs to challenge discriminatory electoral structures without requiring direct evidence of discriminatory intent. While Congress expanded Section 2 to allow courts to consider the effects of racial discrimination in voting, the Supreme Court simultaneously developed a competing constitutional doctrine limiting the consideration of race in electoral design. This tension became apparent in 1993 in Shaw v. Reno (1993), where the Court held that redistricting plans may violate the Equal Protection Clause, requiring equal protection of laws for all, when race becomes the predominant factor motivating district boundaries, even when those districts are designed to increase minority representation. (10) Shaw represented a significant shift in the Court's understanding of racial discrimination, placing states in an increasingly difficult position. 

Another important factor in the evolution of the Court’s threshold for racial discrimination is Section 5 of the VRA. (11) This Section originally established a “preclearance” protocol for states with a history of racial discrimination, requiring these states to get approval for electoral changes through either the Department of Justice or the courts. In 2013, the Supreme Court decided Shelby County v. Holder (2013), removing this preclearance requirement. (12) This was due to Congress not establishing clear and consistent rules for the preclearance formula, as well as increased Black voter turnout in the majority of states under the preclearance rules. The court argued that Congress’ formula relied on outdated data. However, following this repeal, the gap between White and Black voter turnout has increased year-after-year, with the greatest differences being felt in states that formerly had a preclearance requirement. (13)

The decision effectively shifted voting rights enforcement from a preventative federal oversight system to a litigation-based model relying primarily on Section 2 challenges. This shift placed greater importance on Section 2 as the primary federal mechanism for addressing racial discrimination in voting. Through this lens, voting rights activism has become even more of a necessity for the Black community, while simultaneously, the rules for this activism have become increasingly difficult to parse. With new doctrinal tension later established by Allen v. Milligan (2026) and Louisiana v. Callais (2026), the application of Section 2 has become even more uncertain. (14)

The Emergence of Doctrinal Uncertainty

Few cases demonstrate the internally inconsistent and confusing electoral jurisprudence of the modern Supreme Court more than Allen v. Milligan. At first, the case appeared to reinforce the protections of Section 2. In 2021, a district court found that Alabama’s redistricting plan violated Black Alabamians’ ability to elect representatives of their choice by packing them into only one majority Black district out of seven districts. The district court found that Alabama had to create a new “opportunity district.” These are districts where a minority group is large and cohesive enough to realistically elect a candidate of their choice, even if they are not a numerical majority. (15)

An important note here is that Alabama’s Black population constitutes at least 25.9% of the population. (16) Because Black Alabamians constituted more than one quarter of the state's population, the plaintiffs argued that Alabama's map artificially diluted their voting strength by concentrating Black voters into a single district while dispersing remaining Black voters across districts where they could not effectively participate in elections. Influenced by the Purcell Principle, the Supreme Court stayed the district court’s injunction, allowing Alabama to use its discriminatory map. (17) Alabama lawmakers had successfully argued that a few months was too short a time to remake electoral slates.

The Purcell Principle was named in 2006, following Purcell v. Gonzalez, where the court established an ambiguous boundary that cautioned courts against altering election procedures close to an election, generally defaulting to maintaining current rules rather than changing them prior to an election to prevent chaos. (18) In 2023, Alabama created a new map that was once again struck down by a district court due to its lack of a Black opportunity district. This time, the Supreme Court affirmed the district court’s decision. Ultimately, Alabama was required to use a map created by the district court, which included an additional opportunity district. (19)

After what seemed on the surface like a win for the VRA, the case remained dormant. However, the assumed electoral clarity provided by the case was short-lived. In 2026, the Supreme Court decided Louisiana v. Callais. This case originally follows a similar history to Allen v. Milligan. A 2022 redistricting in Louisiana was challenged on the basis of racial discrimination, similarly requiring the creation of a new opportunity district. In this case, Louisiana complied and created one with a new map. This new map was also challenged, however, on the basis of racial gerrymandering, as plaintiffs argued there was no constitutional backing for the consideration of race in the creation of opportunity districts. The Supreme Court agreed with this challenge, arguing that the VRA did not “provide a compelling reason for” the use of race in creating redistricting maps. (20)

With this decision, the Supreme Court created tension within the framework it had established in Allen just a few years prior, with the court now producing conflicting doctrinal commands. This tension has produced an increasingly unstable legal environment for states and courts alike. A legislature that declines to create additional minority opportunity districts may face liability under Section 2, while a legislature that does create such districts may face constitutional challenges alleging that race improperly predominated in the redistricting process. 

Following the decision in Callais, Allen was once again brought to the Supreme Court. This time, Alabama wanted to use its original 2023 redistricting map. However, some districts had already started voting, giving vote registrars just a few days to change a massive amount of electoral data. (21) Rather than provide a clear boundary between permissible and impermissible electoral decision-making, modern voting rights jurisprudence has created competing legal obligations that encourage prolonged litigation and strategic uncertainty. Alabama’s gamesmanship paid off, and they were allowed to use the 2023 redistricting map despite having substantially less time than the amount they had claimed to need in 2022. (22)

The result is not the formal elimination of Section 2, but a gradual narrowing of its practical effectiveness through doctrinal ambiguity and procedural obstacles. This process also severely complicates the work of voting rights organizations. Section 2 plaintiffs must demonstrate that race-based electoral disadvantage exists, yet constitutional doctrine increasingly limits the extent to which race may be considered in designing remedies. This creates a paradox in which the very evidence necessary to establish a Section 2 violation may also become the basis for challenging the remedy itself.

The Impacts of Uncertain Protections

The modern threat to Section 2 is not its formal repeal, but its transformation into a remedy increasingly difficult to invoke and increasingly uncertain to apply. Through decisions limiting preclearance, narrowing understandings of racial discrimination, and creating tension between Section 2 remedies and Equal Protection principles, the Supreme Court has shifted voting rights enforcement from a preventative framework to a reactive and uncertain one.

Congress should clarify the relationship between Section 2 and constitutional limits on racial classifications by establishing clearer standards for evaluating remedial districts. Alongside this, the courts should preserve the Thornburg framework and apply the Purcell Principle in both directions, protecting voters from partisan gamesmanship and allowing vote registrars the time they need to conduct an accurate and orderly election. For voters affected by these disputes, however, doctrinal uncertainty is not merely an academic concern. Electoral maps determine whether communities can meaningfully participate in representative government, and delayed remedies may allow disputed systems to remain in place for entire election cycles, such as Alabama in 2022.

Section 2 survives today not because its meaning is settled, but because the struggle over its meaning remains unresolved. The future of voting rights will depend on whether courts interpret the statute as a tool for remedying racial inequality or merely as a prohibition against explicit racial classifications. 

Endnotes

1. Voting Rights Act of 1965, S.1564, 89th Cong (1965).

2. U.S. Const. amend. XV, § 1.

3. Garrett, R. Sam. “The Voting Rights Act: Historical Development and Policy Background.” Library of Congress, 2026. https://www.congress.gov/crs-product/R47520.

4. Voting Rights Act of 1965, S.1564, 89th Cong § 2 (1965).

5. Allen v. Milligan, 608 U. S. ___ , 1 (2026) (per curiam).

6. City of Mobile v. Bolden, 446 U. S. 55.

7. Voting Rights Act Amendments of 1982 S. 1992, 97th Cong (1982).

8. Thornburg v. Gingles, 478 U. S. 30 (1986).

9. Thornburg v. Gingles, 478 U. S. 30, 46 (1986) (opinion of the court).

10. Shaw v. Reno, 509 U.S. 630 (1993); U.S. Const. amend. XIV, § 1.

11. Voting Rights Act of 1965, S.1564, 89th Cong § 5 (1965).

12. Shelby County v. Holder, 570 U.S. 529 (2013).

13. Morris, Kevin & Coryn Grange. “Growing Racial Disparities in Voter Turnout, 2008-2022.” Brennan Center for Justice, 2024. https://www.brennancenter.org/our-work/research-reports/growing-racial-disparities-voter-turnout-2008-2022.

14. Allen v. Milligan, 608 U. S. ___  (2026); Louisiana v. Callais, 608 U.S. ___ (2026).

15. National Conference of State Legislatures. “Understanding Redistricting: Terms you Should Know,” 2025. https://www.ncsl.org/redistricting-and-census/understanding-redistricting-terms-you-should-know.

16. The United States Census Bureau. “QuickFacts Alabama, Population Estimates, July 1, 2025,” 2025.  https://www.census.gov/quickfacts/fact/table/AL/PST045225.

17. Dodsworth, Harry B. “The Positive and Negative Purcell Principle.” Utah Law Review, 2022. https://doi.org/ 10.26054/0d-9nqp-9t93.

18. Purcell v. Gonzalez, 549 U.S. 1 (2006).

19. Allen v. Milligan, 608 U. S. ___ , 1 (2026) (dissenting opinion).

20. Allen v. Milligan, 608 U. S. ___  (2026).

21. Chandler, Kim, et al. “Alabama Lawmakers Pass Plan for New US House Primary if Courts Allow Different Districts.” The Associated Press, 2026. apnews.com/article/alabama-redistricting-map-congress-voting-rights-trump-81f6a232ea75a9d62efe3e40f14f8488.

22. Ibid.