The prohibition of racial discrimination in voting and the right to have absentee ballots counted are in grave peril.
By Marjorie Cohn ,
PublishedApril 8, 2026

Demonstrators participate in the Moral March on Manchin and McConnell, a rally held by the Poor Peoples Campaign calling on them to eliminate the legislative filibuster and pass the "For The People" voting rights bill, outside the Supreme Court in Washington, D.C., on June 23, 2021.Caroline Brehman / CQ-Roll Call, Inc via Getty Images
The Supreme Court appears poised to deal a severe blow to the fundamental right to vote in two cases this term. Louisiana v. Callais threatens the right to vote free from racial discrimination and Watson v. Republican National Committee will test the right to have your absentee ballots counted.
On August 1, 2025, when the Supreme Court asked the parties in Callais to brief the issue of whether Section 2 of the Voting Rights Act (VRA) violates the 14th or 15th Amendment to the Constitution, alarm bells rang throughout the country.
By posing that question, the high court signaled its openness to striking down the remaining core of the VRA, which Congress enacted in 1965 to prevent racial discrimination in voting. Section 2 forbids the use of congressional maps that dilute the voting power of marginalized communities.
The Supreme Court appears poised to deal a severe blow to the fundamental right to vote in two cases this term. Louisiana v. Callais threatens the right to vote free from racial discrimination and Watson v. Republican National Committee will test the right to have your absentee ballots counted.
On August 1, 2025, when the Supreme Court asked the parties in Callais to brief the issue of whether Section 2 of the Voting Rights Act (VRA) violates the 14th or 15th Amendment to the Constitution, alarm bells rang throughout the country.
By posing that question, the high court signaled its openness to striking down the remaining core of the VRA, which Congress enacted in 1965 to prevent racial discrimination in voting. Section 2 forbids the use of congressional maps that dilute the voting power of marginalized communities.
Section 2 was included in the VRA in order to enforce the 15th Amendment, which prohibits the government from denying or abridging the right to vote “on account of race, color, or previous condition of servitude.”
In Callais, a group of self-described “non-African American” voters claimed that the “intentional creation of a majority Black district” violated the Equal Protection Clause of the 14th Amendment.

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During the oral argument on October 15, 2025, a majority of the Supreme Court appeared ready to side with the “non-African American” voters.
Moreover, at its March 23 argument in Watson, the court seemed inclined to overturn a Mississippi law that allows mail-in ballots to be counted if they are postmarked by, and received within five business days of, Election Day. Mail voting in Mississippi is limited to a few types of voters, including those with disabilities, the elderly, and people living away from home.
The Trump administration would like to prohibit mail-in ballots that aren’t received by Election Day. If the court holds that ballots must be received by Election Day, untold numbers of voters could be disenfranchised.
The “Crown Jewel of the Civil Rights Era” Is Gravely Imperiled
The Voting Rights Act — known as the “crown jewel of the civil rights era” — is in danger of being rendered null in Louisiana v. Callais.
Section 2 of the VRA prohibits any voting qualification or prerequisite to voting, or procedure or practice that “results in a denial or abridgment of the right of any citizen of the United States to vote on account of race.” That occurs when voters of color “have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.”
Since the Supreme Court struck down Section 5 of the VRA in 2013, Section 2 remains the only effective VRA remedy left to challenge racial discrimination in voting. Chief Justice John Roberts wrote the opinion in Shelby County v. Holder gutting Section 5, which had required federal preclearance before changes to election rules could go into effect in jurisdictions with a history of discriminatory voting practices.
But Roberts provided assurances in Shelby that Section 2 would still be available to protect voting rights. Now, the court is poised to obliterate Section 2 as well.
Congress amended Section 2 of the VRA in 1982 to provide that evidence of discriminatory intent is not necessary to prove racial discrimination; even policies that appear neutral can have a discriminatory effect (legally referred to as disparate impact) on a particular group.
The 14th Amendment’s Equal Protection Clause forbids the government from treating people differently on account of race. In the 1990s, the Supreme Court held that the government cannot use race as a predominant factor when it draws election districts unless it satisfies strict scrutiny by proving it is necessary to achieve a compelling governmental interest.
In Callais, a coalition of civil rights groups and Black voters wanted to reinstate a map that the state legislature had adopted in 2024. The map established a second majority-Black congressional district and was drawn in response to a 2022 U.S. district court ruling that a map drawn in 2020 likely violated Section 2 of the VRA.
The 2020 map included only one majority-Black district out of the state’s six congressional districts. The coalition argued that the 2020 map diluted the votes of Black residents, who comprise about one-third of Louisiana’s population.
The Fifth Circuit Court of Appeals affirmed the district court ruling that the 2020 map likely violated Section 2, and the appellate court ordered Louisiana to adopt a new map by January 15, 2024. The Louisiana Legislature then drew a map with a second majority-Black district.
In response, the “non-African American” voters challenged the 2024 map, claiming it was unconstitutional because it separated voters based primarily on race.
The Supreme Court didn’t decide the case after hearing oral arguments last term. Instead, it ordered a second round of arguments, which took place on October 15, 2025. At that proceeding, a majority of the court exhibited a willingness to eviscerate Section 2.
They may well determine that Section 2 of the VRA and the Equal Protection Clause are “in tension,” as Clarence Thomas suggested in his dissent to the ruling that held the case over to this term.
If the court adopts Thomas’s position, it would amount to a finding that disparate-impact liability under the VRA’s Section 2 is unconstitutional. That could make it harder to prove liability for violations of federal housing and employment discrimination laws, Berkeley Law School Dean Erwin Chemerinsky warned on SCOTUSblog: “Ending disparate-impact liability would be an enormous change in the law and a devastating blow to civil rights in the United States. That is why Louisiana v. Callais is potentially so important.”
Absentee Ballots Cast by Election Day Should Be Counted
The other major voting rights case on the Supreme Court’s docket presents a challenge to a Mississippi law governing the timing of mail-in ballots. In addition to Mississippi, at least 18 states and territories have laws that allow the counting of mail-in ballots postmarked by Election Day but received later. Twenty-nine states allow overseas and military ballots to be tallied if received after Election Day.
In Watson, the Republican Party of Mississippi and the Republican National Committee are challenging the Mississippi law. They argue that the state law conflicts with an 1845 federal law that established the Tuesday after the first Monday in November as “Election Day.”
A three-judge panel of the Fifth Circuit Court of Appeals agreed with the challengers that all ballots must be received by Election Day. The full appellate court affirmed that decision and the state of Mississippi appealed to the Supreme Court.
In its brief asking the high court to review the case, Mississippi officials argued that the appeals court ruling, “if left to stand — will have destabilizing nationwide ramifications” and it “would require scrapping election laws in most states.”
The Supreme Court agreed to hear the case. At oral argument, the right-wing supermajority of the court appeared to agree with the challenge to the Mississippi law. If the law is struck down, it could impact the upcoming midterm elections.
Donald Trump has long opposed mail-in voting, falsely claiming that it results in fraud and contributed to the outcome of the 2020 presidential election.
“Mail-in voting means mail-in cheating,” Trump declared during a recent appearance in Memphis, Tennessee. “I call it mail-in cheating, and we got to do something about it all.” When asked about his vote by mail in a special election in Florida, he said: “I’m president” and “I had a lot of different things” to do. Meanwhile, Trump is trying to prevent Americans from casting absentee ballots.
The high court will issue rulings in Louisiana v. Callais and Watson v. RNC by the end of June or early July. As we await their decisions, the right to vote is on the line.
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Marjorie Cohn
Marjorie Cohn is professor emerita at Thomas Jefferson School of Law, dean of the People’s Academy of International Law and past president of the National Lawyers Guild. She sits on the national advisory boards of Veterans For Peace and Assange Defense, and is a member of the bureau of the International Association of Democratic Lawyers and the U.S. representative to the continental advisory council of the Association of American Jurists. Her books include Drones and Targeted Killing: Legal, Moral, and Geopolitical Issues.










