This article first appeared in Human Rights, Volume 51, Number 3, March 2026: “The Fragility of Democracy.” By the American Bar Association
When the U.S. Supreme Court first addressed the constitutionality of the newly enacted Voting Rights Act of 1965 in South Carolina v. Katzenbach, few doubted the outcome. Given the overwhelming bipartisan support for the statute in Congress, along with the unprecedented public outcry following the attacks on nonviolent voting rights marchers in Selma, Alabama, Chief Justice Earl Warren and his colleagues on the Court recognized that the moment required a definitive statement that the Voting Rights Act was consistent with the Constitution’s guarantee of the franchise to all citizens. The resulting opinion reviewed the long history of government inaction and the extended pattern of state resistance to the enforcement of the 14th and 15th Amendments, all of which made the act necessary. And the Court declared that Congress’s power to enforce these amendments was ample authority to take appropriate action. In short, the Warren Court reinforced a national consensus to ensure the right to vote for all citizens.
Now, the public commitment to equal voting rights and the Court’s resolve to support the cause have seen changes. The broad national consensus that once supported the act and its aims in 1965 has given way to a far more partisan frame, and, quite disturbingly, that contestation has even found its way into the federal judiciary. Today, the Supreme Court and federal courts across the country are presented with direct attacks on the Voting Rights Act (once likened to a “super statute” that resets norms and creates a new cultural order). Indeed, some on the federal bench now openly question the law’s very constitutionality. Settled precedents for securing the right to vote, especially those supporting communities that have faced denial of those rights, are now facing more judicial doubt than they ever have since 1965.
Here, I review the federal judiciary’s recent record in key voting cases to illustrate this troubling shift. Two decades into the John Roberts era, the court’s indifference to (and at times, hostility toward) the project of guaranteeing an equal vote for all Americans has become a central theme in this Court’s philosophy. This change implicates not only the composition of government itself but the rights of many Americans seeking fair representation and responsive policymaking. As these communities become a majority of the country’s population, the Court’s decisions in this area will determine whether it will enhance the workings of our democratic system or contribute to its dysfunction.
Some of this Court’s noteworthy voting rights cases showcase this pattern of opposition to settled understandings in the law. Most notably, the Court effectively dismantled Section 5 of the Voting Rights Act in Shelby County v. Holder (2013). Reviving past legal attacks on the statute over the last five decades that had fizzled, this challenge out of Alabama (the same state that sparked the initial passage of the law in 1965) contended that the requirement for select states with patterns of discrimination to submit proposed changes in law for federal review for possible discriminatory effects was unconstitutional. The Court found that the legislative formula used to identify the states subject to review was no longer justified because the conditions in 1965 (which informed the original formula) had changed.
But this analysis ignores two critical factors. First, the law does not rely solely on evidence from 1965; the preclearance provision had been renewed multiple times since its adoption based on more updated evidence of progress (and the lack thereof). Congress had last reaffirmed the law as recently as 2006 with overwhelming bipartisan majorities. Second, the legislative hearings supporting the 2006 enactment cited more recent instances when preclearance objections had blocked new discriminatory laws in the covered jurisdictions. For its part, Congress had little doubt that the work of the statute was effective but not yet finished.
Justice Ruth Bader Ginsburg’s dissenting opinion in Shelby County emphasized that improved evidence of voter participation among people of color compared to white voters showed the law was serving its purpose, not that it was obsolete. She pithily analogized the majority’s thinking to “throwing out your umbrella in a rainstorm because you’re not getting wet.” And she predicted that undoing the preclearance provision would make things worse for voters of color, which has been stunningly accurate.
Research from the Brennan Center for Justice by Kevin Morris and Coryn Grange, “Growing Racial Disparities in Voting, 2008–2022” (March 2, 2024), amply demonstrates that since 2013, the very trend that the Shelby County majority cited to argue things had changed—the shrinking gap in turnout between white and Black voters—has now reversed. And the growing racial turnout gap is most pronounced in the very jurisdictions once covered by the preclearance process.
Shelby County is likely the most publicized example of the Court’s growing hostility to the cause of protecting voting rights, but it is by no means the only one. Even more recent decisions make clear that the judiciary has not only shown openness to further attacks on voting rights enforcement but has at times also invited such novel attacks from the bar. Three categories of cases illustrate the point.
Partisanship and Voting
The first example of the judiciary’s retrenchment on matters related to voting rights is its abdication of any formal role to regulate partisan gerrymandering. After decades of suggesting that the excesses of gerrymandering interfere with the normal course of representation in democratic systems, Associate Justice Anthony Kennedy joined a majority in 2019 to declare that partisan gerrymandering was nonjusticiable. In 2019, in Rucho v. Common Cause, the Court left in place one of the country’s most extreme partisan gerrymanders. Specifically, the Court concluded that there were no administrable standards for federal courts to use to address these claims. And the crucial vote on this case was delivered by Justice Kennedy, who had for years indicated his belief to the contrary. Only days after this judgment was announced, incidentally, Justice Kennedy announced his retirement from the Court.
The conclusion that there were no discernible standards for limiting gerrymandering was quite at odds with the record in this case. The North Carolina scheme was promoted by republican sponsors who openly declared their purpose was to undermine democratic incumbents to the maximum possible extent; one sponsor stated on the record that he would have drawn even more republican seats for his party if it were at all possible. And there was little doubt that the plan achieved this aim in effect; computer simulations of thousands of possible district configurations of the state showed that the adopted map was an extreme outlier and that the Republicans would regularly control a majority of available seats even when a majority of voters statewide voted for Democrats. As scores of amici pointed out to the Supreme Court in briefs, any number of judicial rules might be developed to block this plan, but the Court declined to intervene.
It is child’s play to draw the causal line between the Court’s 2019 decision declaring partisan gerrymandering nonjusticiable and the resulting frenzy of partisan-driven redistricting that has since flooded the country. Even after an already partisan-driven map-drawing process just after the 2020 Census, almost a dozen states created even more blatantly partisan maps in 2025 at the behest of the Trump White House. More than halfway into the decade, legislative fights and legal challenges over redistricting (including in state courts) are playing an outsized role in the conversation about the outcome of the midterm elections in 2026. And in the meantime, voters wait with uncertainty about where they will vote and who will represent them.
More fundamentally, the Court’s unwillingness to address the impact of gerrymandering at all has dealt a major blow to competitive elections—a core feature of any healthy democracy. A recent Brennan Center study by Peter Miller and Arlyss Herzig, “The Turnout Effects of Redistricting Institutions,” demonstrates that gerrymandered states tend to have fewer contested elections, more lopsided majorities in the few cases where challengers do emerge, and ultimately lower voter turnout. When politicians choose voters rather than the other way around, voters typically do not walk away with better choices.
Legislative Privilege and Voting
In addition to the Court’s shift on the project of curbing the excesses of partisanship in redistricting, the attacks on voting rights are also evident in recent decisions that extend the concept of legislative privilege to state legislators. By shielding the statements and work of state legislators from public review, the Court has sharply limited (if not entirely eliminated) the ability of plaintiffs and watchdog groups to verify whether the asserted reasons behind a new law are legitimate or raise legal problems.
The Speech and Debate Clause in the U.S. Constitution grants members of Congress the right to immunity from prosecution and investigation for matters related to their actions and words as lawmakers. While the text’s application to federal officers is clear, it does not speak to what protections (if any) exist for lawmakers at the state level. Instead, the judiciary has developed this protection through the common law, relying on originalist arguments to find that the basis for the protection of Congress is closely analogous to the concerns about state legislators.
But while the initial cases developing this idea framed the protection as a qualified one, more recent cases have broadened the application of this immunity, denying plaintiffs’ discovery into state legislators’ statements behind the scenes and even access to information by unelected third parties who speak to members. For example, in La Union del Pueblo v. Bettencourt, 93 F.4th 310 (5th Cir. 2024), the Fifth Circuit ruled that communications between Texas legislators and third parties were shielded from disclosure even when those documents were sought from and in the possession of a local political party.
Why does this matter in the voting context? Most voting rights cases involve challenges to state legislation. From challenges to redistricting maps to ballot verification rules, plaintiffs usually have a burden to produce evidence about what legislatures said or did in shaping the policy in question. And the public record, especially after Shelby County, is quite thin. Discovery is usually the route to develop this kind of information, but that channel is essentially unavailable if state legislators could assert the privilege to shield whatever they may have said or done outside the public record itself.
The issue has become even more salient as the Court has crafted new procedural hurdles that minimize evidence that plaintiffs find that implicate state intentions. In 2024, in Alexander v. South Carolina NAACP, the Court reversed a finding by a District Court that the state legislature had used race impermissibly to make a district less competitive by targeting Black voters. The Court took great pains to undermine evidence credited by the District Court that the state had used available information about Black voters. While this type of evidence has been critical in lawsuits alleging racial gerrymandering (where race overtakes all other considerations in drawing maps, in violation of the 14th Amendment), the Supreme Court found that this information was not as relevant here because it did not undermine a good-faith presumption of fair dealing to which the legislature was entitled. So, coupled with the privilege itself, plaintiffs have an even steeper hill to climb to gather evidence that might help them prove their cases.
The Ability to Sue and Voting
The most surprising category of voting rights attacks involves the very ability of private actors to enter the courthouse door. Plaintiffs have successfully brought vote-dilution cases in federal court only to encounter questions about whether they even can bring these claims. This procedural move has been the most shocking attack to undermine the operation of voting rights enforcement. Not only is it drastically ahistorical, but it also carries the potential to fundamentally undermine the existing civil rights bar from enforcing the right to vote.
In Turtle Mountain Band of Chippewa Indians v. Howe, U.S. Cert No. 25–253, voters from a Native American community succeeded in District Court on their claim that the State of North Dakota had designed a state legislative district map that violated Section 2 of the Voting Rights Act by diluting their voting strength. On appeal, the focus of the case was not on the merits of this claim but on whether the voters could sue. Under the hostile reading raised by the court sua sponte, a Voting Rights Act claim is only available to be brought by federal government actors. A divided Eighth Circuit affirmed this view en banc, and it is currently presented on cert to the U.S. Supreme Court for consideration.
Few, if any, of the 1965 members of Congress who considered the Voting Rights Act believed that the Department of Justice (DOJ) alone was authorized to bring claims under the new legislation. After all, among the key problems in previous efforts to enforce voting rights was that DOJ resources could not address the multiple instances where Black citizens in the South faced violations of their civil rights. The preclearance system was designed to shift the advantages of time and inertia against the states’ cat-and-mouse strategy to evade federal court mandates. The private civil rights bar extolled the need for legislation, and it has since been the most prolific in bringing these claims. Since 1965, the Justice Department has initiated fewer than 25 percent of the filed lawsuits under Section 2 of the act. And this approach aligns with the general principle in American law of an individual rights holder controlling their own claim. In all these ways, this brazen argument is out of step with both the history and the practice of the Voting Rights Act.
While the private plaintiffs in Turtle Mountain have attempted to protect their claim by relying on Section 1983 as an alternative cause of action, they await cert review by the U.S. Supreme Court. If the Court determines these plaintiffs have no legal basis to bring this claim, the outcome will cause chaos throughout the country. For one thing, nationalizing that approach would almost certainly invite thousands of jurisdictions to revisit rulings and settlements won by private plaintiffs under the law over the last six decades. And even assuming away the hostile posture of the current DOJ to the Voting Rights Act, leaving all voting rights cases solely to an overworked federal agency would create perverse incentives for those who would prefer to dilute minority voting power. In other words, upholding the Eighth Circuit would effectively close the courthouse door on voters to remedy race discrimination in elections.
In seasons where the right to vote and elections themselves have faced grave threats, our system of government has depended on a judicial system that views the law as a means to protect the right of people to participate on an equal basis in the operation of their government. As these sections describe, the judiciary faces grave choices that will have a tremendous impact on how representative our country is of those who are governed. This Court can speak with clarity in a way that confirms our enduring commitment to the right to vote for all Americans, or it can (intentionally or not) contribute to an unraveling that is not just dangerous but ultimately destructive to the democratic experiment.
Kareem Crayton is a lawyer and political scientist who serves as the vice president of the Brennan Center for Justice in Washington, D.C. An established scholar on the intersection of law, politics, and race, he has served on law and political science faculties across the country and authored more than two dozen publications exploring the connections between race and politics in representative institutions.
