The Supreme Court is currently considering Louisiana v. Callais, a case that could further weaken the Voting Rights Act of 1965 and undermine democratic representation in the South ahead of this year’s midterm elections. Facing South recently spoke with Eileen O’Connor, senior counsel and manager of the Elections Program at the Brennan Center for Justice, about the case, its implications for voting rights, and other looming threats to democracy. Before joining the Brennan Center, O’Connor spent eight years as a trial attorney in the Voting Section of the Civil Rights Division of the U.S. Department of Justice. Prior to that, she served as senior counsel at the Lawyers’ Committee for Civil Rights Under Law, where she worked for five years on voting rights and fair housing issues. The interview has been condensed and edited for clarity. You can watch the full video of the interview on the Institute's YouTube channel.

Over the past 15 years, we’ve seen a steady erosion of the Voting Rights Act. Can you give us a sense of how these changes have shaped voting rights protections nationwide?

Most folks probably know that the Voting Rights Act was passed in 1965 and is considered sort of the crown jewel of the civil rights movement. It had a lot of different parts and was reauthorized maybe five times in the years after. The first piece I think is most important to talk about is Section 5, the preclearance provision. That’s really what most people consider the genius of the Voting Rights Act, because in the ’50s and ’60s, when efforts were underway to finally bring the franchise to mostly Black Americans in the South, it was kind of like playing whack-a-mole. Every time a problem was fixed, the jurisdictions would just come up with new ways to disenfranchise folks. Section 5 addressed that by freezing things in place in jurisdictions with a history of discrimination in voting.

That covered most of the Deep South and eventually also Arizona, Alaska, and some other areas of the country. It was so powerful because jurisdictions were not allowed to make any changes to their voting practices, procedures, or maps without getting them precleared. Jurisdictions had to prove that the changes they wanted to make were not discriminatory and wouldn’t put voters of color in a worse-off position than they were in. That was incredibly effective, it worked wonders. Then, in 2013, the Supreme Court struck it down [in the Shelby v. Holder decision]. That provision of the Act is essentially no longer functioning, which was a huge loss in terms of protections for voters of color. Immediately after that decision, North Carolina and Texas enacted statewide laws within a day that were then challenged in court as discriminatory. These were laws that had been waiting to pass until the states no longer had the burden of proving that they wouldn’t harm voters of color. Another important part of the Act is Section 2. Section 5, the preclearance provision, only covered certain parts of the country. Section 2, by contrast, applies nationwide. Its requirement is simple: Minority voters need to have an equal opportunity to participate in the political process. Essentially, it means no discrimination in voting anywhere in the country. Unfortunately, that part has been weakened and is currently hanging in the balance.

You can think of Section 2 cases as two types. One type challenges maps — methods of election, whether it’s a districted map or an at-large map. The other type challenges voting procedures — how people register and cast a ballot. The second type, challenging the way people register and vote, has been almost impossible to pursue since a 2021 Supreme Court case set a standard for proving these claims that is extremely difficult to meet. I don’t believe there have been any successful cases brought under that part of the Act since 2021. So that avenue is already weakened. One reason we’re talking about this today is that there’s another case in front of the Supreme Court right now:........

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