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.