What Democrats Can Do to Restore Voting Rights Post-Callais

The Intelligencer

By Ed Kilgore 

political columnist for Intelligencer since 2015

In the wake of the U.S. Supreme Court’s landmark decision in Louisiana v. Callais, much attention has been paid to its impact on the midterms and the partisan gerrymandering surge we can expect in the last two years of the Trump administration. The decision clearly green-lights map-rigging by demolishing the legal obstacles posed by the Voting Rights Act of 1965. Thus it’s a huge gift to the Republicans who control the former Confederate states, where the VRA previously protected minority (and thus Democratic) voting interests to a considerable degree. The decision probably won’t be enough to let the GOP hang on to control of the U.S. House in November, but it could make the post-election landscape in Congress a lot friendlier to Republicans.

So in the long term, is there anything Democrats can do to mitigate the damage from Callais, aside from attempting retaliatory gerrymanders of their own in blue states? What’s possible at the national level if Democrats flip control of Congress in the next four years and win back the presidency in 2028? Would a Democratic trifecta in Washington in 2029 make it possible to undo Callais by enacting new voting-rights legislation?

If this question sounds familiar, it’s probably because unsuccessful efforts to shore up voting rights were a big deal when Democrats last had trifecta control of the federal government in 2021 (before losing the House in 2022). The House passed two major voting-rights measures that were then filibustered to death in the Senate. This happened because two Senate Democrats, Joe Manchin and Kyrsten Sinema, blocked a bid to carve out an exception for voting rights from the rules allowing filibusters. Manchin and Sinema are no longer in the Senate (though John Fetterman, who holds similar views opposing Democratic partisanship, is in the Senate at least until 2029). Might a renewed Senate majority finally zap the filibuster, either partially (via a “carve-out”) or totally, and restore voting rights to the robust protections they enjoyed before Supreme Court conservatives began unraveling them?

The answer is “it depends.” For one thing, implementation of Callais by the lower courts (under the supervision of the Supreme Court) will take a while, and there are some unanswered questions about the leeway it offers states — not to mention a future Congress — to protect or eviscerate minority voting interests. But more basically, the ability to counteract the Court’s demolition work by federal legislation will turn on what form it assumes.

Samuel Alito’s majority opinion in Callais did not explicitly eliminate the VRA or any of its sections. But it did hold that the previous implementation of the VRA by lower courts and the states was unconstitutional under the 14th and 15th Amendments. The John Lewis Voting Rights Advancement Act, one of the two major measures Democrats pushed in 2021, aimed to repair and restore the enforcement regime authorized by the VRA after 2013 and 2021 Supreme Court decisions gutted it as a matter of statutory interpretation. But because the Court has now decreed that any race-conscious remedies for discriminatory redistricting decisions are themselves unconstitutional (except for the extremely rare cases where racial motives underlying partisan gerrymanders are open and explicit), it’s unlikely that any VRA repair job would pass judicial muster. So bringing back the John Lewis Voting Rights Advancement Act might be entirely futile even if it can overcome a certain GOP filibuster.

The other big 2021 voting-rights measure, the For the People Act, could be another matter. Most of this legislation focused on setting national race-neutral-but-voter-friendly standards for holding elections, allowing automatic voter registration, creating uniform early-voting opportunities, and banning suspect “purges” of voter rolls, among other protections. But it also attacked partisan gerrymandering by either party, requiring independent redistricting commissions in the states and banning maps that gave any party an “undue advantage” in the likely results. Because these provisions indirectly address racially discriminatory redistricting practices without race-conscious remedies, they might survive challenges based on Callais.

One common argument against the For the People Act Republicans raised in 2021 is that it would impose national rules on the states, usurping their traditional role in election administration. It will be hard for the GOP to revive that argument given its near-universal support for this year’s Trump-driven effort to impose national rules on states via the SAVE America Act, aimed at addressing the phantom menace of noncitizen voting while discouraging voting by mail and other convenience measures.

For Democrats to fully restore the pre-Callais Voting Rights Act, they’d need to reshape the Supreme Court, as conservatives did during the George W. Bush and Donald Trump administrations. Until that can happen, the best way to reverse Callais’s baleful effects is by promoting voting rights generally at both the federal and state levels and by paying close attention in their own redistricting measures to the minority interests Republicans will be racing to extinguish.