Abstract

Excerpted From: W. Kerrel Murray, False Conflict: Colorblindness and Section 2 of the Voting Rights Act, 94 Fordham Law Review 1835 (April, 2026) (557 Footnotes) (Full Document)

Students for Fair Admissions v. President and Fellows of Harvard College’s (SFFA) conclusion that certain race-conscious admissions programs contravened the “'color-blind’ ... guarantees of the Equal Protection Clause” may not have ranked high on lists of judicial surprises. After all, a clear U.S. Supreme Court majority embraces colorblind constitutionalism. More eyebrows raised, however, at the treatment of section 2 of the Voting Rights Act of 1965 in Allen v. Milligan. Not only did the Court reaffirm section 2’s constitutionality, but it rebuffed a putatively ““race-neutral” limit on its scope.

That Milligan surprised is, itself, unsurprising. Even before SFFA, precedent running back to 1993’s Shaw v. Reno deployed colorblind principles to limit race’s use in districting. Yet section 2, as amended in 1982, at least entails color cognizance in requiring state avoidance of electoral rules that operate to “den[y] or abridg[e]” any citizen’s right to vote “on account of race or color.” What’s more, remedies for violations of that rule have long included districts drawn with attention to race. In taking colorblindness to a new, not-yet-pellucid frontier, SFFA only raised the stakes for section 2.

A confrontation looms. In a key Milligan concurrence, Justice Kavanaugh invoked a vital plank of SFFA’s colorblind reasoning: Race-based government action must have a discernible end point. Two terms later, at oral argument on another section 2 case, Louisiana v. Callais, he repeatedly raised this temporal point. The Court then set Callais for reargument in October Term 2025, prompting influential conservative thinker George Will to demand an SFFA equivalent for section 2. Invoking colorblindness critiques as old as section 2 itself, he averred that section 2 “endorses a degraded theory of representation” by “freezing certain racial constituencies into law.” The Wall Street Journal Editorial Board agreed. Invoking Justice Kavanaugh’s temporal remarks, it urged the Court to use Callais to not only “overturn [Thornburg v.] Gingles,” its landmark decision interpreting section 2, but to “rule definitively that states can’t consider race in map-making.” Because section 2 at least requires considering race to avoid race-based voting-rights abridgements, this is at bottom a call to hold it unconstitutional. And, indeed, the Callais reargument order asked the parties to expand upon an SFFA-based argument the appellees had previously made only in passing. Subsequently, Louisiana--which had been formally supporting section 2’s application because of some procedural quirks--switched sides, offering instead a vociferous attack on section 2’s constitutionality.

What comes next turns on a simple question: Was Milligan more than a temporary reprieve for section 2? The right answer, this Article explains, is yes, given what colorblindness means, what section 2 is, and what section 2 does.

At the threshold, understanding the supposed conflict between colorblindness and section 2 turns on what colorblindness demands. Yet that is not self-explanatory; indeed, the Court clearly is still figuring the concept out. This Article thus begins by distilling the best-fitting account of colorblindness circa 2026, focusing on the Court’s justifications and its paradigm cases. Its first contribution is thus augmenting and connecting to election law a growing body of work interrogating an ascendant (yet still-evolving) approach.

Next, the Article returns to section 2’s origins. Although scholarship often hurries past those origins, doing so risks underappreciating how Congress designed a statute surprisingly responsive to current challenges. The Article accordingly traces section 2’s development in legal and historical context to build a novel account of what Congress created. Broadly stated, section 2’s 1982 amendment provided that electoral devices, even those enacted without discriminatory purpose, may be illegal based on their “results.” Prompted by a plurality’s view in City of Mobile v. Bolden that the original section 2 reached only devices enacted with discriminatory purpose, the amendment’s text explicitly incorporated a line of pre-Bolden cases. It is often thought, however, that those cases offer scant substantive guidance and that Congress thus produced a cipher in 1982.

In arguing otherwise, this Article makes several contributions. Methodologically, stepping back from the seminal legislative history that often shapes section 2 analyses, it focuses on the “mischief” that prompted the amendment. Through that lens, this Article first draws out the ethos animating the pre-Bolden cases: A political system’s distortion by discrimination may result in genuinely neutral electoral devices treating voters disparately on account of race. Then, engaging in a novel examination of media coverage of the amendment, this Article integrates how contemporary public understanding of the problem the amendment addressed aligned with that pre-Bolden ethos.

This method generates the Article’s central insight: the colorblind section 2. In short, section 2’s history and context reveal it as a statute attacking present-day disparate treatment of individuals caused by past or present intentional discrimination. That design targets evils that colorblindness recognizes. And it avoids what colorblindness abhors. For example, it staves off loose equation of section 2 with disparate impact. Precisely because Bolden’s negation keyed on how intentional discrimination distorts elections, section 2’s design rejects race-based assumptions, avoids harming nonculpable individuals, and embraces a congenital end point. Contra critiques as old as section 2 itself, that design’s “core values” are at peace with colorblindness.

What I have said so far encapsulates how this Article roots its disparate-treatment account in section 2’s text and enactment context. But, because history marches on, this Article also shows how subsequent doctrine and empirical events have confirmed and implemented that design.

Take doctrine first. Doctrinally, some tell the interpretive story of section 2 since Gingles as one of sharp departure from congressional intent. But the disparate-treatment paradigm complicates that tale. Gingles and its progeny built a framework suffused with the core value of combatting obstacles that discrimination’s effects pose for present-day voters’ ability to aggregate votes on par with others. The idea that Gingles effects section 2’s “self-liquidation” is nearly as old as Gingles. What this Article adds is how Gingles--including its oft-calumniated first prong-- amplifies section 2’s colorblindness compatibility by implementing and concretizing an ethos built into section 2’s design.

Under Gingles, facts matter. Accordingly, this Article incorporates Americans’ recent voting behavior. Whatever the ultimate causes, the latest national elections reflect a pronounced trend of racial depolarization in elections. We do not, apparently, inhabit a world “freezing certain racial constituencies into law.” Those trends, and analogous desegregation trends, suggest that section 2’s aspirations are no fantasy: Section 2 poses no obstacles to the “waning of racism in American politics” and plausibly accelerates it. And this proof that the conditions for section 2’s activation do dissipate should offer additional confidence that, when the statute triggers, it has done so appropriately.

Building on the foregoing, this Article closes with two further contributions. First, dissolving the confrontation between section 2 and colorblindness resolves any perceived doctrinal tension between Milligan and SFFA. Second, the Article points toward answers to other longstanding section 2 problems. It offers a paradigm for defining the “undiluted” world in vote-dilution cases and shows why section 2 fits neatly with the requirement that legislation enforcing the Reconstruction Amendments be appropriate. It also shows this account’s utility for evaluating whether doctrinal innovations advance or undermine section 2’s design.

This Article proceeds in four parts. Part I distills the best-fitting version of colorblindness and introduces the earliest colorblind critiques of section 2. Part II lays the groundwork by describing what makes voting legally special. It then shows how section 2’s prehistory, enactment, and context generated a disparate-treatment statute that targets discriminatory effect to fully remedy intentional discrimination. Colorblindness can take such a statute on board. Part III connects what section 2 is to what section 2 does. Doctrine elegantly implements section 2’s original vision by tying its activation to past or present discrimination’s particularized electoral effects, and factual developments back the vision’s feasibility. In so doing, it confirms that section 2 can live peacefully with colorblindness. Part IV describes the Article’s other important implications for section 2’s constitutionality and doctrinal development.

[ . . . ]

Section 2 is too important to evade colorblind constitutionalism’s gaze. Fortunately, it need not. Once colorblindness’s core commitments are articulated, section 2’s core design understood, and the statute’s implementation appreciated, colorblindness can take the statute on board. Some legal conflicts are inevitable. This one, however, is simply false.

Associate Professor of Law and Milton Handler Fellow, Columbia Law School.