Last week, Eric Holder announced that the Department of Justice would sue Texas over its new voting ID law and redistricting plan. Vowing that the U.S. wouldn’t allow the recent Supreme Court decision gutting Sections 4 and 5 of the Voting Rights Act to invite states to suppress minority voting rights, Holder promised that the Obama administration would sue under a different provision of the Voting Rights Act—Section 2—which the Court didn’t address in the case. As Molly Redden has reported, the lawsuits face an uphill battle because courts have interpreted Section 2 of the voting rights act to ban only voting practices that are intentionally discriminatory and have established a high burden of proof for intentional discrimination. There is, however, another, deeper reason that the Section 2 suits are unlikely to succeed: several of the conservative justices on the Supreme Court have expressed deep skepticism about the constitutionality of Section 2 of the Voting Rights Act itself.
When Congress amended Section 2 in 1982 to ban voting practices that had the effect, rather than intent, of suppressing minority votes, the Supreme Court came close to suggesting that the 1982 amendments were themselves unconstitutional.
In other words, Justice Anthony Kennedy was being idealistic, at best when he suggested at oral arguments that Section 2 might be a plausible alternative to Section 4 in preventing practices like voter ID laws that have the effect of suppressing minority participation.
The fact is that the Supreme Court’s approach to Voting Rights has been like a game of Whac-A-Mole: every time Congress tries to ban voting rights discrimination under one provision of the Voting Rights Act, the Court smacks it down, forcing Congress to try other approaches that are smacked down in turn.
That’s why Justice Ruth Bader Ginsburg was right to tell the New York Times last weekend that “if it’s measured in terms of readiness to overturn legislation, this is one of the most activist courts in history.”
To understand the activism of the Court’s approach to Voting Rights, a brief history of Section 2 of the Act may be helpful. Section 2 says that “No voting qualification or prerequisite to voting, or … procedure shall be imposed … to deny or abridge the right of any citizen of the United States to vote on account of race or color.”
In the 1973 White v. Regester case, the Supreme Court interpreted Section 2 to ban voting practices that had the effect of suppressing minority voting, even if they weren’t intended to do so. But in 1980, as the Court grew more conservative, it reversed itself and held that only intentional voting discrimination was illegal under Section 2. In 1982, by bipartisan majorities, Congress repudiated the Court’s narrow view of voting discrimination and amended Section 2 to make clear that voting practices that had discriminatory effects were illegal, even without clear evidence of discriminatory intent.