Scalia’s Goal Of Unwinding Voter Protections Is Becoming A Reality

In a Supreme Court term already bursting with election cases, from two partisan gerrymandering disputes to a fight about the permissibility of Ohio’s voter purges to a lawsuit challenging bans on political clothing in Minnesota polling places, it’s easy to overlook yet another significant voting appeal the Court will hear later this month. In Abbott v. Perez, the Court will examine whether the state of Texas violated the Voting Rights Act and the United States Constitution when it drew congressional and state legislative district lines in ways that hurt Latino and African-American voters. The protracted and difficult litigation involves redistricting plans from way back in 2011 and shows how much was lost when the Supreme Court killed another key provision of the Voting Rights Act in its 2013 Shelby County v. Holder case.

Abbott v. Perez could well preview what’s likely to come in the next few years. All three branches of government have pulled back on protecting voting rights, and the effects of that move are becoming clear. We may soon fulfill the late Justice Antonin Scalia’s vision of an emasculated Voting Rights Act and much weaker protections for minority voters by the federal courts.

In the pre-Shelby days, the Voting Rights Act offered two main tools to protect minority Voting Rights. Under Section 5, states which had a history of racial discrimination in voting had to get “preclearance” (or pre-approval) from the U.S. Department of Justice or a federal court in Washington, D.C. before making any changes in voting rules and procedures. States had to show the DOJ or the court that any changes would not worsen the condition of minority voters. Under Section 2, the U.S. government or private plaintiffs could bring suit anywhere in the U.S. arguing that a redistricting plan (or other voting rule, like a state voter id law) deprived minority voters of the same opportunity as white voters to participate in the political process and to elect representatives of their choice. Section 2 litigation can be successful, but the burden is on the plaintiff to prove a violation, the standard is tough to meet, the cases are expensive to bring, and they usually take a long time to litigate.

The Roberts Court’s record on reading and enforcing the Voting Rights Act has been a disappointing one, which is no surprise given that Chief Justice John Roberts himself was an opponent of a strong Voting Rights Act when he worked in the Reagan Administration to weaken minority voter protections in Section 2. The worst thing the Roberts Court has done came in the 2013 Shelby County case, where the Court created a new constitutional theory that states are entitled to “equal sovereignty” and held that Congress violated it by subjecting only some states to Section 5 preclearance based upon old racial discrimination data.

Even before Roberts became chief justice, the Court already had a relatively weak record enforcing Section 2. It has held that the Act cannot be used to challenge the power of minority-preferred representatives within legislative bodies, cannot be used to challenge the number of members of a legislative body so as to assure some minority representation, and it does not give minority voters the right to require the state to draw “influence” districts when the group of minority voters is not large and compact enough to make up a majority in a district. And that’s all aside from non-Voting Rights Act cases cutting back on voting rights such as a 2008 case rejecting challenges to the constitutionality of discriminatory voter identification laws.

The Texas case that the Court will hear this term shows just how hard it is to protect minority voting rights. Texas’ 2011 redistricting plans originally could not be put in place because a federal court had not precleared it under Section 5. A separate lawsuit sought to block parts of the plans under Section 2, and the same federal court issued an interim remedy, which led to Texas passing a similar discriminatory plan in 2013 claiming the re-enactment solved Voting Rights Act problems. The Section 5 lawsuit went away when the Supreme Court decided Shelby County, but the Section 2 lawsuit has dragged on, and the three judges hearing that case issued hundreds of pages of detailed opinions trying to figure out exactly when and how Texas violated the Act.

It has been 7 years, and the cases are only now getting to the Supreme Court, with the potential for a final remedy to be in place for just a single election before the 2020 round of redistricting arrives, and, with it, could well start this all over again.

Since the case started, it is hard to find friends for the Voting Rights Act in any of the three branches of government. The Department of Justice, which came in on the side of minority voters in the Texas litigation, has switched sides now that the Trump Administration has taken over. That means U.S. Solicitor General Noel Francisco will be arguing in favor of Texas’s position in the case at the Supreme Court.

Congress, meanwhile, has not acted to fix the formula for deciding which states need to get Section 5 preclearance, even though the Court in Shelby County invited Congress to try.

And the Supreme Court is poised to make things worse. With rumors circulating that perennial swing Justice Anthony Kennedy could retire as soon as this term, the Court is likely to lurch to the right. As I argue in my new book, The Justice of Contradictions: Antonin Scalia and the Politics of Disruption, the late conservative Justice Antonin Scalia took an even narrower view of Voting Rights than the Court as a whole, and now, after his death, Justice Scalia’s influence is only growing. If President Trump gets another appointment to the Supreme Court to replace Justice Kennedy, expect the next Justice (like new Justice Neil Gorsuch) to emulate Justice Scalia’s approach and weaken voting rights even further.

Justice Scalia openly expressed disdain for the Act, expressing the view at the Shelby County oral argument that Congress renewed the Act in 2006 by overwhelming majorities because of “a phenomenon that is called perpetuation of racial entitlement.” He believed that Section 2 could well be an unconstitutional racial preference, and argued that, regardless, Section 2 should be read not to apply to redistricting matters at all.

The bottom line is that the Court’s mixed record on enforcing the Voting Rights Act could soon get worse if Trump gets another Court appointment. Minority voters, already at a disadvantage in many parts of the country because of enduring racism and the unwillingness of white voters to support minority candidates for office, could soon have tougher political battles ahead. And the scariest part is that, thanks in part to Justice Scalia’s influence, the courts may soon no longer be there as a backstop.

Richard L. Hasen is a professor of law and political science at UC Irvine. He blogs at Election Law Blog. His newest book, The Justice of Contradictions: Antonin Scalia and the Politics of Disruption, was published in 2018 by Yale University Press.