Dem
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GOP
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Much like fire seasons that are now year-round thanks to climate change, the Supreme Court no longer confines itself to an October to June regular session. Through the use of the shadow docket and the reopening of cases to decimate what had been well-settled areas of the law, the Roberts Court is open for business year-round, at least for those operating at Donald Trump's behest.
With respect to Louisiana v. Calais, the case involving Section 2 of the Voting Rights Act that the Court has asked the parties to re-argue, there are more reasons to be alarmed than we addressed last week. As we approach the 60th anniversary of the VRA, Politico wonders if it will reach 61. It's a reasonable question. The law has already been significantly watered down, with the Roberts Court in 2013 striking down Section 5, which required pre-clearance for any changes to voting laws from those states with a history of discrimination. In Ruth Bader Ginsburg's famous dissent, she was astonished that the law's success was causing its demise: "It's like throwing away your umbrella in a rainstorm because you're not getting wet." Interestingly, the preclearance requirement was reauthorized in 2006 with a 98-0 vote in the Senate and signed in a Rose Garden ceremony by George W. Bush. Since that 2013 ruling in Shelby v. Holder, we've seen the states that had been covered by Section 5 enact all manner of laws to suppress minority votes: voter ID laws, reduced polling places, fewer early voting days, and laws prohibiting groups from giving water to those waiting in the now-long lines to vote.
In the Louisiana case, the events that led us here are a little convoluted, but are important to understand. In 2022, Louisiana's state legislature drew a map that contained only one majority-Black district. They were sued on the grounds that minority votes were being unlawfully diluted in violation of Section 2. The district court agreed, so in 2024, another map was drawn that contained 2 majority-minority districts. This time a group of white voters (describing themselves as "non-African American") sued and claimed that this map was unlawfully created based on race in violation of the Fourteenth Amendment's Equal Protection Clause. A 3-judge federal district court agreed and invalidated the 2024 map; Louisiana appealed to the Supreme Court and argued that it can satisfy both the VRA and the Fourteenth Amendment, which allows race-based government action if there is a compelling reason.
Now, the Supreme Court has asked for briefing on a question no one asked to be answered: whether Louisiana's intentional creation of a second majority-Black district violates either the Fourteenth Amendment's Equal Protection Clause or the Fifteenth Amendment, which bars both the federal government and states from denying or abridging the right to vote "on account of race, color, or previous condition of servitude." Even though the question doesn't mention Section 2 of the VRA, if the answer is "yes" to either of these two questions, then it means that Section 2 itself violates the Fourteenth and/or Fifteenth Amendments and is unconstitutional. This is part of Chief Justice Roberts' quest to find that any government action based on race violates the Constitution because, according to him, that document requires race neutrality, even if those actions are taken to rectify discrimination. Any remedial actions or laws to address past discriminatory acts are themselves racially discriminatory, which could implicate other civil rights laws. As Rick Hasen notes, "A kind of race neutral reading of the Constitution would potentially read out Congress's power to enact race conscious remedies to protect minority voters." So, as (V) noted last week, so long as a state can credibly claim that their maps are partisan gerrymanders, if they also happen to discriminate against minorities, well, the Roberts Court will likely say you're out of luck.
Even if Section 2 manages to survive, the Court could still weaken it by finding that there's no private right of action. Section 2 is largely enforced in response to lawsuits by private civil rights groups like the ACLU. But now, the Eighth Circuit has held that Section 2 does not authorize a private right of action and only the federal government can enforce it. The Supreme Court has stayed that ruling pending an appeal, but this could be a way for the Court to get rid of Section 2 without outright killing it. Given that Trump's Department has absolutely no interest in enforcing Section 2, such a ruling "would essentially be rendering Section 2 a dead letter." (L)