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Lawyers in the office of Texas’ attorney general smell blood in the water.
They’re hunting the Voting Rights Act, and specifically Section 2, which was significantly weakened by the Supreme Court last year, and has been the prey of choice for conservatives around the country since.
The VRA has been in the high Court’s sites for awhile. It gutted the Act in 2013, when it ruled unconstitutional the law’s formula for “preclearance” in Section 5 — the process of putting a state or locality under federal supervision if they repeatedly violate minorities’ rights. But Section 2 survived largely intact until last year, when Justice Samuel Alito, writing for the majority in Brnovich v. Democratic National Committee, took an initial swipe at it, inventing “guideposts” for the law that favored states seeking to impose voter restrictions.
Weakened and vulnerable, Section 2 (and the limits of its authority) is now on the menu as part of ongoing lawsuits over redistricting.
In a series of court filings flagged by the Texas Tribune and the Center for Public Integrity, attorneys for Texas have argued both that Section 2 does apply to redistricting cases, and that only the Department of Justice — not individual voters or groups like the ACLU — should be able to sue under the legal authority.
Though the Supreme Court isn’t set to weigh in on the matter in the immediate future, the arguments would significantly weaken Section 2, which prohibits discrimination on the basis of race, color, and language minority groups.
Note From Gorsuch Sets Off Feeding Frenzy
The latest effort to carve away at Section began in October, when attorneys for the state of Texas flagged a one-paragraph note from Justice Neil Gorsuch in Brnovich v. DNC.
Gorsuch had written in his note that “Our cases have assumed — without deciding — that the Voting Rights Act of 1965 furnishes an implied cause of action under §2.”
That was an invitation: The justice was saying, in essence, that the court has always assumed that private parties have the right to bring lawsuits under the section, but that this actually hasn’t been established in Supreme Court precedent. Lower courts, Gorsuch said, had treated this as an “open question” — one that Republican attorneys are now trying to answer in their own favor.
Citing Gorsuch’s line, Texas attorneys argued that “Section 2 contains no indication that Congress intended to create a private right for nonvoters” — meaning groups like the plaintiffs in one redistricting suit, including Mi Familia Vota and LULAC Texas.
The following month, Texas lawyers said that Section 2 did not create a private cause of action, and that even if it did, it would apply to voters, not organizations like LULAC and Mi Familia Vota. (DOJ lawyers countered that no private plaintiff had ever been denied the ability to bring a Section 2 claim, either.)
The three-judge panel on the case declined to take the bait. “Absent contrary direction from a higher court, we decline to break new ground on this particular issue,” District Judge David C. Guaderrama wrote for the panel on Dec. 3. (Democrats’ federal voting rights legislation, it should be noted, would have addressed this by explicitly laying out a private right of action to enforce Section 2.)
A few weeks later, the state tried another tactic: “All of the United States’ claims should fail because Section 2 ‘does not apply to redistricting,’” Texas attorneys said, quoting Clarence Thomas before adding: “Although this argument is currently foreclosed by precedent, Defendants preserve it for appeal.”
But the DOJ fired back in January: “Section 2’s application to redistricting is all the clearer here, since Congress left in place this long-accepted reading of Section 2 when it last amended the Voting Rights Act in 2006.”
Conservative Seize the Moment
The jabs from Texas mirror nationwide prodding at Section 2. And the Supreme Court has awarded the challenges: In February, the Court paused a district court’s ruling that would have required Alabama to redraw maps that the lower court ruled had discriminated against Black voters. Alabama, the district court found, had violated Section 2. The Supreme Court stepped in, allowing the map’s use in 2022 congressional races.
“Accepting Alabama’s contentions would rewrite decades of this Court’s precedent about Section 2 of the VRA,” Justice Elana Kagan wrote in a dissent.
The attacks don’t stop with that section, though: Florida Secretary of State Laurel Lee, for example, asserted in November that Section 208 of the VRA — which covers voters who need assistance due to blindness, disability, or inability to read or write — has “no remedial scheme whatsoever.”
It’s not clear where this ends, but attorneys for the state of Texas and beyond are clearly eager to find a way to give the Supreme Court further bites at the VRA apple.