On Monday, five years to the day that the Supreme Court decided Shelby County v. Holder, a case in which the court struck down a key provision of the Voting Rights Act with assurances that other parts of the act would still protect minority voters, the court proved those assurances false in Abbott v. Perez. In Abbott, the Roberts court on a 5–4 vote eschewed the judicial minimalism it has used to avoid other contentious issues—such as partisan gerrymandering and the clash between anti-discrimination laws and religious liberties—to contort rules limiting its own jurisdiction so that it could give states like Texas freer rein for repression of minority voting rights. The signals from Justice Neil Gorsuch, who signed onto a Clarence Thomas concurrence, show that things will only get worse going forward, especially if Justice Anthony Kennedy retires in the near future.
In the time before the Supreme Court’s 2013 opinion in Shelby County, states like Texas with a history of racial discrimination in voting had to get federal approval—or “pre-clearance”—before making changes in their voting rules. To get pre-clearance, the state had to show that changes would not make minority voters worse off.
In an aggressively bold opinion, the Supreme Court in Shelby County struck down this pre-clearance rule as an impermissible exercise of congressional power that infringed on the so-called equal sovereignty of states like Texas. Chief Justice John Roberts, who had opposed strong protection of minority voting rights at least since he worked with the Reagan administration against expanding the Voting Rights Act in 1982, tried to sell Shelby as a minimal ruling, given that there were other parts of the Voting Rights Act to protect minority voters. Section 2, for example, lets minority plaintiffs sue when they are denied the opportunity others have to participate in the political process and elect representatives of their choice. Section 3 says that a state that engages in intentional racial discrimination in voting can be put back under federal pre-clearance for up to another 10 years.
Abbott tested both of these propositions. The complex case involved efforts of Texas to draw district lines for Congress and for state legislative seats after the 2010 Census. A federal court in D.C. blocked Texas’s plan under the pre-clearance provisions, because Texas’s plan was intentionally discriminatory. A separate federal court in Texas imposed some interim maps in 2011, as cases proceeded in two courts. After the Shelby County decision, the D.C. case went away, but plaintiffs argued in the Texas federal district court case that Texas violated Section 2 of the Voting Rights Act in its plans and that it did so intentionally, meaning the state could be put back under federal supervision under Section 3 of the act. As litigation continued, Texas adopted new maps in 2013 that mostly mirrored the interim maps the Texas court had imposed in 2011. After many years of wrangling, the district court in Texas found that the 2013 maps also showed Texas’s discriminatory intent and that some of the districts also violated Section 2 of the act. It gave Texas a chance to put new maps into place that cured the problems, and if the state did not, the court threatened to issue an injunction with new maps.
Now, ordinarily at this point in the litigation, the Supreme Court would not get involved. The court only reviews orders like injunctions, and the lower court had not issued an injunction yet. But the court did intervene. On a 5–4 basis, it had put further proceedings in Texas on hold, and on Monday the court decided the case on the merits.
The decision is audacious in many ways. To begin with, the court decided to review the lower-court order even though there was no injunction in place, finding an exception to the usual rule because the lower court was “effectively enjoining” the use of the old Texas maps. This is not judicial minimalism or proceeding slowly. Justice Sonia Sotomayor’s dissent spends many pages explaining how the court contorted its usual rules limiting its jurisdiction to review of actual lower-court orders to reach this result.
When the court in Abbott got to the merits, it was similarly aggressive. The lower court found that Texas had engaged in intentional racial discrimination in passing the 2013 plan, which not only doomed the drawing of some lines but also set the stage for putting Texas back under federal supervision via Section 3. Ordinarily, the Supreme Court reviews such a factual finding under a very deferential “clear error” standard. Justice Alito avoided this standard by saying, unconvincingly, that the lower court had mistakenly put the burden of proof on Texas to show a lack of discrimination.* Even if that were right, as Justice Sotomayor argues in dissent, the proper thing to do would have been to send it back to the lower court to reconsider under the proper burden of proof. Instead, the court found there was no evidence that Texas engaged in intentional racial discrimination in passing the 2013 plan, saying it was simply adopting the 2011 interim plan of the district court. This ignored all of the evidence, described by Justice Sotomayor in detail in her dissent, that the 2013 plan continued much of the discrimination against minority voters from its original 2011 redistricting scheme.
In perhaps the most important part of Justice Samuel Alito’s majority opinion, the court emphasized that courts must “presume” the “good faith” of the legislatures in determining whether a state was engaged in racial discrimination. Further, because race and party overlap so much in places like Texas, what looks like racial motivation may be partisan motivation.
The upshot of this analysis is that it is going to be well near impossible for plaintiffs to prove that states have engaged in intentional racial discrimination so as to put those states back under federal supervision for voting under Section 3. With this thumb on the scale in favor of states, and the ability to say they were just being partisan and not engaged in race discrimination, they will have a freer rein to engage in discriminatory action. That’s happening not only in Texas, but in states like North Carolina (also subject to federal oversight before Shelby), which the Fourth Circuit found had targeted black Americans “with almost surgical precision” in passing an earlier strict set of voting rules and that is back at it again, trying to reimpose voter ID and pass a host of other discriminatory measures.
Abbott gets even worse. As professor Richard Pildes noted at the time of oral argument, the court spent so much time on the question whether the case was properly before it that it spent little time on difficult issues under Section 2 of the Voting Rights Act. And sure enough, in a pretty brief but significant part of the majority opinion, the court in Abbott seems to make it harder for plaintiffs to win cases under Section 2 as well, though it will take some time to sort out all the implications.
So much for the promise of Shelby County.
And, as Slate writer Mark Joseph Stern noted, things may well get worse. On Monday, Gorsuch endorsed Thomas’ long-held nutty view that plaintiffs cannot ever bring Section 2 cases to challenge redistricting. If that view becomes a majority view on the court, it would give states like Texas virtually free rein in drawing discriminatory voting districts. If Justice Anthony Kennedy retires and gets replaced by another justice like Gorsuch, that would make at least three justices believing that view. That would leave Roberts and Alito, no friends of voting rights, all that would be left standing in the way of the full death of the Voting Rights Act. When Roberts is the swing justice on the court on voting rights, things will get much worse.
Justice Sotomayor concluded her long dissent today by noting that the Constitution’s Equal Protection Clause and the Voting Rights Act promise a right to all citizens, regardless of race, of equal opportunity to participate in the political process. “The Court today does great damage to that right of equal opportunity,” she wrote. “Not because it denies the existence of that right, but because it refuses its enforcement.”
And this is the M.O. of the Roberts Court. It may continue to pay lip service to protection for voting rights, but with every decision it shows how hollow a right is without a remedy.
Correction, June 25, 2018: This article originally misstated that Justice Alito said the lower court had mistakenly put the burden of proof on Texas to show discrimination. He said that the lower court had mistakenly put the burden of proof on Texas to show a lack of discrimination.