Leaving the Umbrella in a Rainstorm: The Supreme Court's Failure to Protect Voting Rights

https://www.americanbar.org/groups/crsj/resources/human-rights/2026-march/supreme-courts-failure-protect-voting-rights/


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.

*snip*