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The beleaguered Voting Rights Act is on the ropes again — and it may soon suffer a crippling strike.
The Supreme Court seems on the verge of making it much harder to use the landmark civil rights measure to force states to draw districts where minority candidates stand a strong chance of winning. And a key provision that lets private groups sue under the 60-year-old law could be the next to fall.
That would be a huge blow to civil rights lawyers like Mississippi’s Carroll Rhodes, who’s spent his career leveraging the Voting Rights Act to increase the political power of Black people and other minorities.
“It becomes almost an impossible hill to climb,” Rhodes told POLITICO Magazine.
Over the past decade or so, the VRA has been battered by a series of hits from the increasingly conservative high court. In 2013, the justices knocked out a key pillar of the law by eliminating “pre-clearance” requirements for advance approval of voting changes, including redistricting, in most or all of nine states and a smattering of localities.
In recent months, petitions have stacked up at the Supreme Court that could lead to the justices wiping out the long-assumed right of private groups and individuals to bring lawsuits under the law. And, earlier this month, the high court blocked a lower court’s Voting Rights Act ruling and gave Texas a green light to redraw its congressional map at President Donald Trump’s request in order to give Republicans up to five additional House seats.
Despite those challenges, litigators like Rhodes have had significant success harnessing the VRA. A lawsuit he pressed forced redistricting and a special election in Mississippi last month led to Black Democrats picking up two additional seats in the state’s House. The incremental gain broke a longstanding GOP supermajority in a state that is nearly 40 percent Black — the highest percentage in the nation. Those sorts of advances for minority representation could come to a halt if the Supreme Court rules against the law.
I reached Rhodes at his law office in the small town of Hazelhurst, Miss. and asked him to take stock of the bruises the VRA has sustained, the threats it faces at the moment and how he’s managed to use the law to advance minority power in his home state.
This interview has been edited for length and clarity.
The Voting Rights Act has taken a lot of major hits from the Supreme Court in the past couple decades. Many lawyers now see it as teetering on the brink of irrelevance or impotence. What are the stakes in the pending case, Louisiana v. Callais, and whether states doing redistricting can sometimes make use of race to comply with the VRA?
Some people are concerned that the Voting Rights Act might be on its way out, but I'm an eternal optimist. Given that the Voting Rights Act was passed by Congress pursuant to the 15th Amendment, and the 15th Amendment guarantees the right to vote on an equal basis, not on account of race, to everyone — I think in the Callais case that they're going to resolve that issue in favor of [the law] being upheld.
You’ve had considerable success in Mississippi with the Voting Rights Act and the state legislature there. Does that confound perceptions that the VRA is at death’s door?
We have been successful. A lot of civil rights organizations and civil rights opponents have been successful in using the Voting Rights Act to increase the number of Black elected officials.
In Mississippi, for the most part, whites do not vote for Black candidates in contested elections, and that's why the Voting Rights Act has been so successful in creating Black majority districts.
When you have a minority population that's large enough, concentrated enough, and they're in these election districts where they cannot elect candidates of their choice — because the majority population always votes against their candidates of choice — you have to redraw the districts in such a way so you give this large, geographically insular minority group the ability to elect the representative of their choice. And Mississippi's demographics have made it easier for us to be successful here.
Has there been a concrete impact to this?
There was a time where we had 45 or 50 Black people elected from Black majority districts in the Mississippi Legislature. And there were Black chairmen of different committees, even the powerful committees. But what has happened over the years, more and more white Democrats have left the Democratic Party and gone toward the Republican Party, so now you have a [GOP] supermajority in the Senate. We broke that in this last election.
When you break the supermajority in the Senate, money bills, especially taxing and spending, budget, a lot of times it takes a supermajority to get those bills passed. If there is no supermajority, then that means that the Republican leadership within the Senate will have to negotiate with most of the Black people elected as Democrats.
Have those legislators been able to use this effective veto to actually get some spending concessions in terms of, “You're going to spend in this part of the state or on these types of programs?”
We won't know yet because the special election just took place, and the legislature comes back in January. So, we will see if this cohesive group of Black Democrats can get some concessions.
In 2013, Chief Justice John Roberts wrote the Shelby County decision, which ended the requirement that many states, including Mississippi, most places across the South and a few in the North, had to submit any voting changes — including redistricting — to the Justice Department to get approved. The maps that Mississippi adopted in 2022, which you successfully challenged in court, were they put in place initially because of the Shelby County decision?
They were able to do it directly because of Shelby County, yes. And John Roberts got it wrong. I agree with Justice Ginsburg who said at the time, it’s like standing up under the umbrella and it's not raining and saying, “Oh, it's not raining, so you can let the umbrella down.” That's what that Roberts decision did: took the umbrella down. And rain is falling everywhere.
Under the process essentially abandoned after Shelby County, the maps had to be submitted to Washington, and that took place under presidents both Republican and Democrat. The maps that you challenged, do you think President Obama's Justice Department would have approved them? What about President George W. Bush’s Justice Department or President Donald Trump’s Justice Department?
The Trump Justice Department would have approved them, but no other president. And I'm going to go back to Obama, Biden, Clinton, I'd even go back to Ronald Reagan. The strange thing is that Ronald Reagan initially was opposed to the Voting Rights Act extension in 1982 but wound up signing it and cited it as the crown jewel of American democracy. And so the Trump Justice Department probably is the only one, because the Trump Justice Department had flipped what the purpose of the Voting Rights Act was — to protect minority voters — to say it's to protect white voters.
Roberts has been on the court now for 22 years. The first decade and a half or so, he was viewed uniformly as hostile to voting rights enforcement. That was seen as one of his animating issues. But there have been a few decisions in recent years where the court has not been as aggressive toward the Voting Rights Act as some expected. It seems like Roberts went along with this current Callais case being punted for a year, which basically left those districts in place through the current election cycle. Is there something going on with Roberts? Do you think he has shifted or moderated at all?
My personal take is that he really is really an incrementalist. He's not for upending longstanding precedent and what the country has become accustomed to. He believes in incremental changes and I think the Shelby County decision came about because he genuinely thought that so much advancement had been made in this area that it was no longer necessary for those protections. And I think after Shelby County, he's seen that those protections are still needed. His views might be moderating somewhat. He might see the damage that Shelby County decision has caused.
You've had this span of four or five decades to look at how these things have developed. How has technology changed this process of redistricting? Has it made it easier for those trying to dilute the power of minority voters to do that, and have people on your side of the fight been able to harness that technology in any similar fashion to fight back against those efforts?
When I first started out in this area, the map drawers used maps and pencils and even had notepads to add before the calculators came. Then calculators and then the programs and social science has developed over the years, too. Statistical analysis has become more and more sophisticated, and the technology has become more and more sophisticated.
My take is that whoever writes the algorithm, whoever writes the code, the code can be written in such a way that it could lead to more discrimination and make it harder to undo.
We do have folks on our side who are using technology, but technology was used in the Texas case to draw districts in such a way that discriminated against Black and Latino voters in Texas.
You were a teenager when a lot of these landmark civil rights laws were passed in the ‘60s. Do you personally have memories of what the Jim Crow South was like? Did any of your relatives experience some of these more bizarre tests that were used for decades before that to exclude Black people from voting, like, ‘How many bubbles are in a bar of soap?’ or ‘How many jelly beans are in the jar?’
Oh, yes. I was born in ‘51. I grew up in a segregated neighborhood, went to an all-Black high school, segregated high school, segregated elementary school. I remember going to the dentist. And the dentist office had two entrances, one for white, one for “colored,” and going through the white side, they had air conditioning. They had magazines. The “colored” side did not.
We had field trips to the courthouse, where the courthouse had white and “colored” water fountains. And we had to sit in the balcony. I remember a third grade field trip to the courthouse and we watched a trial where a white lawyer was defending a Black man accused of some crime. And he was saying, “This was a good Nigra” — N-I-G-R-A.
And so I grew up through it and I also remember my parents when the Voting Rights Act was first passed, and they did have federal registrars around, but all of the neighbors, my parents and everybody not only did they go and register to vote, they voted in every election, no matter what.
There were people telling us stories. Tim Winston owned a funeral home here and he was one of the few Black people who was able to register prior to the Voting Rights Act being passed, and he told stories of how they were turning away Black folks by asking them ridiculous questions. So, yeah, I remember, personally, stories of how hard it was before the Voting Rights Act was passed and after it was passed.
If the Voting Rights Act Section Two were to be knocked out and it wasn't a tool you could use anymore, what would be the strategy after that? Would that mean there's no option for civil rights groups? What is the world going to look like if the VRA is not available for private groups to litigate?
It almost becomes an impossible hill to climb. You have to go back to the 15th Amendment and prove intentional discrimination, which is difficult, or the 14th Amendment and prove intentional discrimination, which is difficult. All a legislative body has to do is say, “We didn't draw the district based on race. We drew them based on partisanship, and they're entitled to the presumption that there was a good faith effort to do that, and it's hard.” We had overwhelming evidence in Texas that partisanship was not the real reason. If that cannot overcome a presumption that the legislator was acting in good faith, going forward, it's going to be impossible to prove a racial gerrymandering claim.
The Supreme Court ruled in 2019 that the federal Constitution puts no limits on partisan gerrymandering, even as the justices continue to aggressively police use of race in redistricting. Is that line meaningful?
Race and party, in Mississippi, there’s no distinction. It’s a fiction.
English (US)