is the Voting Rights Act really dead? Marc Elias

Is the Voting Rights Act really dead?

https://www.nytimes.com/2025/08/10/us/supreme-court-voting-redistricting.html?smid=nytcore-android-share

Supreme Court cutting down Voting Rights Act + NY Times

https://www.nytimes.com/2025/08/10/us/supreme-court-voting-redistricting.html?smid=nytcore-android-share

LDEF: The Voting Rights Act Turns 60 - Where do we go from here>?

The Voting Rights Act of 1965 was the most significant statutory change in the relationship between the federal and state governments in the area of voting since the Reconstruction period following the Civil War; and it was immediately challenged in the courts. Between 1965 and 1969, the Supreme Court issued several key decisions upholding the constitutionality of Section 5 and affirming the broad range of voting practices for which preclearance was required. [See South Carolina v. Katzenbach, 383 U.S. 301, 327-28 (1966) and Allen v. State Board of Elections, 393 U.S. 544 (1969)]  In 2013, the Court struck down a key provision of the act involving federal oversight of voting rules in nine states.

Noone has done more to vindicate the right to vote in the last 100 years than the NAACP LEGAL DEFENSE FUND. * Now called the  LDEF they continue to provide essential leadership...while Republicans seek to knock Black voters out with five new white-dominated Texas districts.  And John Roberts - the Chief Justice - is no ally.  He was the author of the disastrous 2013 Shelby County v. Holder decision.  But Roberts has sometimes done the right thing, as Michael Dorf explains HERE:

In Allen v. Milligan, Chief Justice Roberts again delivered the opinion of the Court, but this time he rejected a challenge to the VRA. Joined by the Court’s three Democratic appointees and (in nearly all of the opinion) Justice Brett Kavanaugh, the Chief Justice reaffirmed a key 37-year-old precedent—Thornburg v. Gingles—that allows VRA plaintiffs to sue to block legislative redistricting maps that have the effect of diluting minority voting strength. 

* See Kevin Boyle's  2004 National Book Award winning Arc of Justice ,  A Saga of Race, Civil Rights, and Murder in the Jazz Age

LDEF: The Voting Rights Act Turns 60 - Where do we go from here>?

"There is no denying, however, that the conditions that originally justified these measures no longer characterize voting in the covered jurisdictions." - John J. Roberts for the majority

SIXTY YEARS AND COUNTING: While most consider July 4 the start of American democracy, the United States’ “true” birthday happened not in 1776, but nearly 200 years later, in 1965. With the passage of the Voting Rights Act (VRA), our multiracial and multiethnic democracy finally had a birth certificate to represent the founding of a nation that allowed all of its citizens — through their votes — a fair shot at shaping its evolution.

Sixty years ago today, on August 6, President Lyndon B. Johnson signed the VRA into law, enshrining protections for voters across the country who were historically denied access to the ballot box. The VRA was one of the most significant achievements of the civil rights movement, ending Jim Crow-era tactics that were employed to stop Black voters from exercising their fundamental right. The legislation was visionary and game-changing: It established “preclearance” requirements that stopped voting discrimination before it occurred and provided voters across the country with essential tools to fight discriminatory election rules and practices.

Happy birthday voting rights act - get ready to die - Harry Litman

 

At 20 years of age I was only tangentially aware of the civil rights movement.  That is, I knew it was a big deal and admired Martin Luther King.  But I'd grown up oin all-white suburban Long Island, NY - and my first experience with Black people as peers was with classmates at Brooklyn Prep.  But those were Jesuit High School boys...academically strong, studying four years of Latin, three of classical Greek and two of either French or German.

So when the Voting Rights Act of 1965 was signed by Lyndon Johnson it just seemed logical, a step past the obviously ignorant southern segregationists.  After all - we all remembered Alabama 's "segregation now, segregation forever" Governor George Wallace standing defiantly to obstruct the admission of Black students to the University of Alabama.

But today's  rationalizations - voiced usually in "race neutral" rhtoric - employ less transparent rationales.  But Donald Trump they declare all race-consciousness to be unlawful.  Justice Roberts may be a savior in the view of Cornell Law Prof Michael Dorf in a pieced posted today.

The Supreme Court has now listed for reargument Louisana v. Calais.

It is a chellenge to the court-ordered creation of a second Black majoirty Congressional District in Louisiana.  

ORDER IN PENDING CASES24-109 ) LOUISIANA V. CALLAIS, PHILLIP, ET AL. ) 24-110 ) ROBINSON, PRESS, ET AL. V. CALLAIS, PHILLIP, ET AL. 

The parties are directed to file supplemental briefs addressing the following question raised [in] the Brief for Appellees: Whether the State’s intentional creation of a second majority-minority congressional district violates the Fourteenth or Fifteenth Amendments to the U. S. Constitution. Supplemental briefs for appellants are due on or before Wednesday, August 27, 2025. Supplemental brief for appellees is due on or before Wednesday, September 17, 2025. Reply briefs are due on or before 2 p.m., Friday, October 3, 2025  

The Department of Justice website exxplains that "In 1982, Congress extended certain provisions of the Act such as Section 5 that were set to expire, and added protections for voters who required assistance in voting. At the same time, it examined the history of litigation under Section 2 since 1965 and concluded that Section 2 should be amended to provide that a plaintiff could establish a violation of the section if the evidence established that, in the context of the "totality of the circumstance of the local electoral process," the standard, practice, or procedure being challenged had the result of denying a racial or language minority an equal opportunity to participate in the political process."

The road that voting rights advocates face is rough.  The cases have been listed for reargument.  A deicsion from which Clarence Thomas dissented  as causing unnecessary delay in reaching a decision.  Thomas's attiude is plain.  dissenting from the order listing the cases for reargument he wrote:

 [T]hese cases highlight the intractable conflict between this Court’s interpretation of §2 of the Voting Rights Act of 1965 (VRA), 52 U. S. C. §10301, and the Equal Protection Clause of the Fourteenth Amendment to the Constitution. The Constitution is supreme over statutes, Marbury v. Madison, 1 Cranch 137, 178 (1803), and no intervening developments will change that.  I thus see no reason to avoid deciding these cases now. In doing so, I would make clear that where  this Court’s interpretation of §2 breaches the Constitution’s equal protection guarantee, the Constitution controls

Today the Republican dominated Texas legislature is engaged in a redistricting effort to create five new Republican-majority seats .  Faced with certain defeat Texas Democrat legislators walked out to deny the Republicans a quorum.

There is a legislative response to this threat.  It is the  John Lewis Voting Rights Advancement Act of 2025 which would restore the preclearance regime, modernize the coverage formula, and otherwise update federal protection of voting rights. (It also would bolster Section 2, but it’s not clear that part of the bill could stand if the Court holds that Section 2 violates the Equal Protection Clause.) Put simply, it would reinvigorate and modernize the VRA.

But the John Lewis Act is likely a dead letter.  

Jamelle Bouie: The Death of the 4th American Republic _ NY Tmes

 The Selma Marches of 1965 - VIDEO

VIDEO

The New Colossus - By Emma Lazarus

Not like the brazen giant of Greek fame,
With conquering limbs astride from land to land;
Here at our sea-washed, sunset gates shall stand
A mighty woman with a torch, whose flame
Is the imprisoned lightning, and her name
Mother of Exiles. From her beacon-hand
Glows world-wide welcome; her mild eyes command
The air-bridged harbor that twin cities frame.
“Keep, ancient lands, your storied pomp!” cries she
With silent lips. “Give me your tired, your poor,
Your huddled masses yearning to breathe free,
The wretched refuse of your teeming shore.
Send these, the homeless, tempest-tost to me,

I lift my lamp beside the golden door!” 

The Selma to Montgomery marches for voting rights - 1965  National Archive

Louisiana v. Callais - Cornell Supreme Court Bulletin

Is Bouie's headline hyperbole? Chief Justice John Roberts has a reputation as a moderate.  It began with his testimony when nominated that his job was to call `balls and strikes'.  That attractive but specious metaphor is base on the notion that the difference between `strike and ball' is defined definitively and is objectively determinable.  But his history on voting rights - particularly2013's  Holder v. Shelby County demonstrates a hostility to steps necessary to make the Voting Rights Act (1965) and the  Fifteenth Amendment promise a reality. - GWC

By Jamelle Bouie

Last Friday, the Supreme Court all but announced how it would rule on the future of the Voting Rights Act of 1965.

The case in question, Louisiana v. Callais, which was heard for the first time in March, is a dispute over the drawing of the state’s six congressional districts. Nearly one-third of Louisianans are Black, but in 2022 state lawmakers drew just one district where those Black voters had a reasonable chance of electing a representative of their choice.

In Louisiana, as is true in much of the Deep South, voting is highly polarized by race. Black people tend to vote for Democrats, white people for Republicans. It’s in this environment that Black voters, a distinct and coherent minority, are shut out of political power unless they constitute a majority — or close to a majority — of a congressional district.

Several individuals as well as groups representing those voters sued under Section 2 of the Voting Rights Act — which ensures fair representation — arguing that the law required the state to draw two congressional districts in which Black voters had the opportunity to elect their preferred candidate.

*** It’s this case that the Supreme Court has decided in essence to hear again, and it is for this case that the court wants the parties to address “whether the state’s intentional creation of a second majority-minority congressional district violates the 14th or 15th Amendments to the U.S. Constitution.”

Under the current Supreme Court’s vision of a rigidly colorblind Constitution — indifferent to either racial inequality or the mechanisms of color caste — the answer is very likely to be yes. There is also the matter of Chief Justice John Roberts, who has led the court’s effort to curb, limit and undermine the Voting Rights Act. 

KEEP READING

Dorf on Law; Skrimeti - transgender discrimination and 14th Amendment

https://www.dorfonlaw.org/2025/08/practicing-law-institute-scotus-roundup.html

Supreme Court roundup

https://www.nytimes.com/2025/08/06/opinion/supreme-court-voting-rights-act.html

Bouie: Death of the Republic

https://www.nytimes.com/2025/08/06/opinion/supreme-court-voting-rights-act.html

U.S. Extracts Change at Harvard with phony charges of anti-semitism

28 Law & Contemproary Problems 431 (1963)

 

There is a long tradition - known as academic freedom - which allows universities to be self-governing - within limits.  Those limits are posed most broadly by the federal civil rights laws such as the Civil Rights Act of 1964, Title VII, barring race or national origin discrimination, and Title IX of the 1972  Act barring discrimination based on gender.

The Civil Rights Act transformed American education, removing legal `de jure' race discrimination, and then barring gender discrimination.  Defenders of the status quo lamented Constitutionally mandated federal intervention.  But no one has ever seen intervention of the sort the U.S. Department of Education has attempted to take effective control of Harvard University.

Vermeule: Cardinal Newman - Doctor of Anti-liberalism

Adrian Vermeule, the Harvard law Prof, a conservative but with Cass Sunstein a celebrant of the administrative state is hostile to liberalism. Its individualism is seen as celebration of irresponsibility.  Here is his latest.  I wonder what he would say about RFK, Jr.?

https://open.substack.com/pub/thenewdigest/p/the-doctor-of-anti-liberalism?utm_source=share&utm_medium=android&r=zv1g

Down goes Brown - Dorf on Law

We used to believe in academic freedom, deploring the Soviet's and the Chinese CP.

Goodbye to all that. Are Professors in MAGA hats next on campus?

https://www.dorfonlaw.org/2025/07/down-goes-brown.html

Vladeck- Bondi's ridiculous ethics complaint against Judge Boasberg

We await the decision of the Judicial Conference of the United States on whether to discipline Chief D.C. District Judge James Boasberg for his efforts to preserve the independence and integrity of judicial decison-making in courts of the United States.  The Attorney General has filed a disciplinary complaint.

Georgetown Law Professor Steve Vladeck dissects the charges HERE.

Senators cave, OK Bove for 3rd Circuit

We NJ lawyers are in the 3rd Circuit so we take a maga judge like Emil Bove personally.

As a member of the NJ Law Journal Editorial Board I joined colleagues trying to stop him. No luck.   Adam Schiff states the case.

https://www.law360.com/articles/2370513/attachments/0

Justice Department attack on Judge Boasberg

https://www.jackhopkinsnow.com/p/trumps-new-executive-order-is-a-blueprint?img=https://substack-post-media.s3.amazonaws.com/public/images/69cf5ef4-ed7f-499a-a5d5-e3a164612933_960x1301.heic&open=false&open=false

Lawrence Lessig: The Supreme Court - Eyes Wide Shut

Lawrence Lessig: The Supreme Court - Eyes Wide Shut

On April 8, 1952, President Harry S. Truman issued an executive order directing his secretary of commerce to take possession of most of the nation’s steel mills. The United States was at war. The United Steelworkers of America threatened a strike. Truman wanted to secure steel production to support the war. Fifty-five days later, in Youngstown Steel v. Sawyer, the Supreme Court declared the president’s order illegal and blocked the secretary from acting upon it. The power to seize property to stop a labor strike was Congress’ to give, not the president’s to take. “The Founders of this Nation,” as the court wrote, “entrusted the lawmaking power to the Congress alone.” The president is to execute Congress’ law, not craft his own law instead.

Fifty-five days. 

Most think that the hard question in constitutional law is to determine what the Constitution means. In fact, the hardest question is whether and when the courts must stand up to governmental actors who are resisting the Constitution. Judges have long understood that courts can’t right every wrong. The challenge is always to defend the Constitution while preserving the role of an independent court.

***

Trump Executive Order is Blueprint for Tyranny

https://www.jackhopkinsnow.com/p/trumps-new-executive-order-is-a-blueprint?img=https://substack-post-media.s3.amazonaws.com/public/images/69cf5ef4-ed7f-499a-a5d5-e3a164612933_960x1301.heic&open=false&open=false

Ideologues complaining about ideology : Steven Millies

https://open.substack.com/pub/millies/p/ideologues-complaining-about-ideology?utm_source=share&utm_medium=android&r=zv1g

Gizmodo: CBS parent Paramount agrees to censor in antitrust clearance deal

 Welcome to the Cabaret!  - video  Joel Grey and Liza Minnelli

FCC to Appoint a Babysitter to Make Sure CBS Isn’t Anti-Trump

FCC commissioner Brendan Carr says CBS will have a "bias monitor."

By Matt Novak Published July 25, 2025 |  GIZMODO

  

The Federal Communications Commission finally approved an $8 billion merger between Paramount and Skydance on Thursday after several changes at CBS that were widely seen as efforts to placate President Donald Trump. Part of the deal will apparently require an ombudsman to check the media company’s supposed political biases. And FCC commissioner Brendan Carr has been doing the rounds to brag about how he’s getting people on TV to be nicer to the MAGA movement.

“They made commitments to address bias and restore fact-based reporting. I think that’s so important,” Carr told Newsmax’s Greg Kelly on his show Thursday night. “I mean, look, the American public simply do not trust these legacy media broadcasters. And so, if they stick with that commitment, you know, we’re sort of trust-but-verify mode, that’ll be a big win.”

Carr went on to explain that CBS had committed to “ending invidious forms of DEI,” a pretext Trump has used to purge the federal government of anyone who isn’t white and male in leadership positions. Kelly said that he had heard the media company was going to do something “different” with 60 Minutes, claiming that a shift to “fact-based” reporting would be a “cultural shock” to CBS.

“One of the things they’re going to have to do is put in an ombudsman in place for two years,” Carr said. “So basically a bias monitor that will report directly to the president. So that’s something that’s significant that we’re going to see happening as well.”

While Carr said “the president” rather than “the president of Paramount,” it’s not clear what he meant. Skydance wrote a letter to the FCC saying the ombudsman would answer to the president of Paramount, but it’s entirely possible that Carr understands their agreement differently. Gizmodo reached out to CBS and the FCC for comment but haven’t heard back.

Gazans are dying of starvation - NY Times

Gazans are dying of starvation - NY Times

 

 

Birthright citizenship under attack: Corey Bretschneider, John Fugelsang, and

 

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Judge J. Michael Luttig - America's Free Press

 J. Michael Luttig is a retired, Republican, judge of the United States Court of Appeals.

America's Free Press - by Judge J. Michael Luttig (Ret.)

July 22. 2025

Never before in the Nation’s almost 250 year history has America’s present and future depended more on the free press than it does today.

Thus is the Greek tragedy of our times that when the Nation needed the free press more than ever, so many among the free press have chosen to offer unto the President of the United States who has declared them “the enemy of the people” a sacrifice of their precious constitutional right to freedom of the press. A burnt offering to the very person for whom the free press was given its freedom by the Constitution of the United States.

With every offering of sacrifice to the President, these confirm in the minds of millions upon millions of Americans that the free press is indeed the enemy of the people, as the President has declared them to be.

The tragic irony is that these upon whom this precious right has been conferred have surrendered their right to the President in attempt to secure power from him that they know their submission will secure for them, when the only power they have and would ever have is secured to them not by the President, but by the Constitution of the United States.

Having surrendered themselves to the President to secure the power that comes from his blessing, they have now and forever forfeited the only actual power they possessed and would ever have possessed, which is secured to them by the Constitution of the United States. Hereafter, the only “power” they will possess is not power at all. It is subservient “power.” And that is as ephemeral as the morning dew.

These who have surrendered their right of the free press have proven their Allegiance to the President, but they have betrayed their allegiance to America.

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Cass Sunstein on ambition

https://x.com/seize_podcast/status/1947087741553918447?t=jksABHLodXL7cLmy_nyXyw&s=09