The Voting Rights Act was signed on August 6, 1965, and within two years Black voter registration in Mississippi rose from roughly 7 percent to more than 50 percent. No other federal statute changed American elections that quickly. The reason was mechanical: instead of asking voters to sue after the fact, the Act blocked certain jurisdictions from changing any election rule until the federal government approved it first.
That machinery stopped in June 2013, when the Supreme Court decided Shelby County v. Holder. Nine states in full and parts of six others had been subject to federal preclearance the day before the ruling. The day after, none were. Everything the Court has done with the Voting Rights Act since then has been a consequence of that shift, and understanding the current law means understanding what survived, what did not, and what replaced it.
Key Takeaways
- Section 2 is still fully in force nationwide. It prohibits any voting practice that results in denial or abridgement of the right to vote on account of race, color, or membership in a language minority group.
- Shelby County struck the coverage formula, not preclearance itself. Section 5 remains on the books but has no jurisdictions to apply to unless Congress writes a new formula or a court orders bail-in.
- Thornburg v. Gingles still governs vote dilution claims. Plaintiffs must satisfy three preconditions before a court weighs the totality of circumstances.
- Vote denial claims follow a different path. Brnovich v. Democratic National Committee laid out guideposts that make challenges to rules like early voting cutbacks harder to win.
- Racial and partisan gerrymandering are treated very differently. Federal courts hear racial gerrymandering claims but ruled partisan gerrymandering claims nonjusticiable in Rucho v. Common Cause.
- Litigation now happens on a compressed election calendar. The Purcell principle discourages federal courts from changing rules as an election approaches.
What the Voting Rights Act Actually Does
The Act enforces the Fifteenth Amendment, ratified in 1870, which had gone largely unenforced for most of a century. Congress built it with two very different tools, and only one of them is operational today.
Section 2: the permanent nationwide rule
Section 2 applies in every state and has no expiration date. As originally written it tracked the language of the Fifteenth Amendment, and in City of Mobile v. Bolden the Court read it to require proof of discriminatory purpose. Congress responded in the 1982 amendments by adopting a results test: a practice violates Section 2 if, based on the totality of circumstances, members of a protected class have less opportunity than other voters to participate in the political process and to elect representatives of their choice. Proof of intent is not required.
Sections 4 and 5: the preclearance system
Section 5 required covered jurisdictions to obtain approval before changing anything touching voting, from a new photo identification law down to moving a single polling place. Approval came either from the Department of Justice or from a three judge panel in the District Court for the District of Columbia. Section 4(b) supplied the coverage formula that decided which places were covered, based on the use of literacy tests and low turnout figures in the elections of the 1960s and early 1970s.
Other provisions still matter and get less attention. Section 3(c) lets a court place a jurisdiction under preclearance after finding intentional discrimination. Section 203 requires bilingual election materials in jurisdictions with large language minority populations. Section 208 guarantees that a voter who needs help because of disability or literacy may choose the person who assists.
The Early Cases That Upheld the Act
South Carolina v. Katzenbach, decided in 1966, upheld the Act against a claim that Congress had exceeded its enforcement power. The Court described the statute as a legitimate response to an evil that had resisted ordinary case by case litigation for decades. Katzenbach v. Morgan, decided the same year, upheld the provision protecting Puerto Rican voters educated in Spanish language schools.
Allen v. State Board of Elections in 1969 read Section 5 broadly, holding that it reached not only registration rules but structural changes such as switching from district to at large elections. That reading made preclearance a tool against vote dilution and not just outright vote denial. City of Rome v. United States upheld the 1975 extension of the Act in 1980. For roughly four decades, the constitutional foundation looked settled.
Vote Dilution and the Gingles Framework
Thornburg v. Gingles, decided in 1986, remains the single most important Section 2 case. It set three preconditions a plaintiff must establish before a court considers anything else. First, the minority group must be sufficiently large and geographically compact to constitute a majority in a reasonably configured single member district. Second, the group must be politically cohesive. Third, the majority must vote sufficiently as a bloc usually to defeat the candidate preferred by the minority group.
Clearing those three preconditions does not win the case. The court then examines the totality of circumstances using factors drawn from the 1982 Senate report: the history of official discrimination, the extent of racially polarized voting, the use of practices that enhance discrimination such as majority vote requirements, whether minority candidates have been elected, socioeconomic disparities that hinder participation, and racial appeals in campaigns. Expert testimony on racially polarized voting and computer generated illustrative maps do most of the work in a modern case.
Shelby County v. Holder and the End of Preclearance
The warning came first. In Northwest Austin Municipal Utility District Number One v. Holder in 2009, the Court resolved the case on narrow statutory grounds while noting serious constitutional questions about whether the coverage formula still matched current conditions.
Four years later, Shelby County v. Holder answered those questions in a 5 to 4 decision written by Chief Justice Roberts. The Court held Section 4(b) unconstitutional because the coverage formula rested on decades old data and no longer reflected present day conditions, which offended the principle of equal sovereignty among the states. The Court did not strike down Section 5 and expressly left open the possibility of a new formula. But without a formula identifying covered jurisdictions, Section 5 has no operation. The dissent by Justice Ginsburg argued that discarding preclearance because it was working resembled throwing away an umbrella in a rainstorm because you are not getting wet.
The practical effect was immediate. Changes that would previously have required federal approval, including identification requirements, polling place consolidations, and redistricting plans, took effect right away. Challengers now have to file suit after the change, carry the burden of proof, and often seek emergency relief on a short calendar. That reversal of burden is the core structural change in modern election law.
Brnovich and Claims About Access to the Ballot
Vote denial claims target rules that make voting harder rather than maps that dilute voting strength. In Brnovich v. Democratic National Committee, decided in 2021, the Court upheld two Arizona policies: discarding ballots cast in the wrong precinct and limiting who may collect and deliver another voter ballot.
Justice Alito set out guideposts rather than a rigid test. Courts should consider the size of the burden imposed, the degree to which the rule departs from standard practice as it existed in 1982, the size of any racial disparity in its effect, the opportunities the state election system provides as a whole, and the strength of the state interests behind the rule. Because most voting rules impose burdens that are small in absolute terms, these guideposts have made vote denial claims considerably harder to win than vote dilution claims. Advocates who track voting protections closely have shifted much of their litigation to state constitutions as a result.
Allen v. Milligan and Section 2 Today
Many observers expected the Court to narrow Section 2 sharply in the redistricting context. In Allen v. Milligan, decided in 2023, it did not. By a 5 to 4 vote, with Chief Justice Roberts writing, the Court affirmed a lower court finding that the Alabama congressional map likely violated Section 2 and declined to rewrite the Gingles framework. Alabama had argued for a race neutral benchmark generated by computer simulations, and the Court rejected it.
Milligan confirmed that Section 2 still requires the creation of additional opportunity districts where the Gingles conditions are met. It also left the underlying tension unresolved. Drawing a district to comply with Section 2 requires attention to race, while drawing a district where race predominates without sufficient justification can violate the Equal Protection Clause. The Court has continued to take up Section 2 redistricting disputes, and the boundary between required and forbidden consideration of race remains the most actively litigated question in the field.
Racial Gerrymandering Versus Partisan Gerrymandering
The Shaw line of cases
Shaw v. Reno in 1993 recognized a claim under the Equal Protection Clause when a district is so bizarrely shaped that it can only be understood as an effort to separate voters by race. Miller v. Johnson refined the test two years later: the question is whether race was the predominant factor in drawing the lines, subordinating traditional criteria such as compactness, contiguity, and respect for political subdivisions. If race predominated, the map must survive strict scrutiny. Cooper v. Harris applied the framework to North Carolina districts in 2017.
Rucho and the partisan question
In Rucho v. Common Cause in 2019, the Court held that claims of excessive partisan gerrymandering present political questions beyond the reach of federal courts. The majority did not say such maps are lawful, only that no judicially manageable standard exists to police them. That pushed partisan map challenges into state courts applying state constitutions, where several have succeeded. Moore v. Harper, decided in 2023, confirmed that state courts retain authority to review federal election rules under their own constitutions, rejecting the strongest version of the independent state legislature theory.
Voter Identification, Purges, and Election Timing
Crawford v. Marion County Election Board upheld the Indiana photo identification requirement in 2008 against a facial challenge, finding the state interest in preventing fraud and maintaining confidence sufficient absent proof of a severe burden on identified voters. Most identification challenges since then have proceeded under Section 2 or state law rather than as broad facial attacks.
List maintenance is governed largely by the National Voter Registration Act of 1993, which restricts removing voters for failure to vote alone. In Husted v. A. Philip Randolph Institute, decided in 2018, the Court upheld an Ohio process that used failure to vote as a trigger for a confirmation notice, followed by removal only after further inaction. Timing matters too. Under the Purcell principle, traced to Purcell v. Gonzalez in 2006, federal courts should generally avoid changing election rules in the period close to an election, which often means a challenged rule stays in place for one more cycle even when a court has doubts about it.
Where Congress Stands
Congress reauthorized the Act in 1970, 1975, 1982, and 2006, the last time for 25 years and by lopsided margins in both chambers. Shelby County did not disturb that reauthorization; it invalidated the formula deciding who it applied to. Since 2013 lawmakers have repeatedly introduced bills that would create a new coverage formula, most prominently versions of the John Lewis Voting Rights Advancement Act. None has been enacted. Until one is, Section 5 remains dormant, and the only route back to preclearance for a specific jurisdiction is a court order under Section 3(c) after a finding of intentional discrimination.
Frequently Asked Questions
Did the Supreme Court strike down the Voting Rights Act?
No. Shelby County v. Holder invalidated only Section 4(b), the formula deciding which jurisdictions needed federal approval before changing election rules. Section 2, which applies nationwide and prohibits racially discriminatory voting practices, remains fully enforceable and is the basis for most voting rights litigation today.
What is preclearance and does it still exist?
Preclearance required certain jurisdictions to get federal sign off before any voting change took effect. The requirement still exists in the text of Section 5, but it currently applies to no jurisdiction because the coverage formula was struck down. A federal court can still order a specific jurisdiction into preclearance under Section 3(c) after finding intentional discrimination.
What is the Gingles test?
It is the three part threshold for a Section 2 vote dilution claim from Thornburg v. Gingles: a minority group large and compact enough to form a majority in a reasonably drawn district, political cohesion within that group, and majority bloc voting that usually defeats the candidate the minority group prefers. A court that finds all three then evaluates the totality of circumstances.
Can federal courts stop partisan gerrymandering?
Not on partisanship grounds. Rucho v. Common Cause held those claims nonjusticiable in federal court. Federal courts can still strike maps as racial gerrymanders or as Section 2 violations, and state courts can strike maps under state constitutional provisions, which several have done.
How do I report a problem voting?
Start with your county or state election office, which handles provisional ballots, registration disputes, and polling place issues directly. The Department of Justice Civil Rights Division accepts complaints about discriminatory practices, and nonpartisan election protection hotlines operate on election days. Keep a written record of the date, location, poll worker names, and what you were told.
The Bottom Line
The Voting Rights Act today is a strong nationwide antidiscrimination statute without its old advance approval system. Section 2 and the Gingles framework survived their most serious challenge in Allen v. Milligan, while Brnovich narrowed the path for claims about ballot access rules. The burden now falls on voters and advocacy groups to identify problems, sue quickly, and prove their case, which is precisely the model Congress found inadequate in 1965.
