One of the Supreme Court’s rare victories for liberals this past term is now under threat, with Republicans preparing to use the court’s decision overturning affirmative action in college education to argue for a total gutting of the Voting Rights Act.
Last month, Chief Justice John Roberts issued an opinion affirming court precedents that allowed the limited use of race in redistricting cases brought under the 1965 law, a decision that is likely to increase the number of Black congressmen from the South and could net Democrats a handful of additional House seats.
Another opinion from Roberts, issued just two weeks later, ruled that the use of race in higher education admissions policies was unconstitutional. Now, these two decisions are coming together in a sweeping effort to dismantle the Voting Rights Act.
Robinson v. Ardoin, a case out of Louisiana, largely mirrors Allen v. Milligan, the Alabama case in which the court upheld the use of race in redistricting lawsuits. In both, federal district court judges found that GOP-dominated state legislatures improperly split up Black communities or packed them into one district in a manner that diluted their ability to choose their own representatives.
In Allen v. Milligan, the court ruled in a 5-4 vote that Alabama had violated the Voting Rights Act when it split a coherent Black community up into white-majority districts and failed to draw a second Black-majority district. Though Robinson v. Ardoin had similarly been appealed up to the Supreme Court, it was put on hold while the Alabama case was considered.
When the Supreme Court declined to adopt Alabama’s arguments to overturn precedents allowing the limited consideration of race in redistricting cases brought under Section 2 of the Voting Rights Act, it sent Robinson v. Ardoin back to a district court in the Fifth Circuit with instructions to follow the high court’s decision.
In Allen v. Milligan, the court did not rule on the underlying constitutionality of Section 2 of the Voting Rights Act. Now, Louisiana Republicans want to use Robinson v. Ardoin to do just that. Their argument hinges on the court’s rejection of affirmative action in higher education.
The court’s decision in Students for Fair Admissions v. President and Fellows of Harvard College “has considerably altered the landscape of cases, such as this one, that involve state action requiring racial classifications,” Louisiana Republicans argued in a court brief filed last week. The brief asks the district court to lift an injunction requiring the state to draw a new congressional district map with a second Black-majority district.
The brief notes that the high court, in its decision in Students for Fair Admissions, stated that policies based on race — rooted in a desire to right the wrongs of historical racism — must have an end date. The majority in Students for Fair Admissions, pointing to the court’s 2003 ruling in Grutter v. Bollinger that upheld affirmative action, had said that “race-based admissions programs eventually had to end.”
Beyond affirmative action, the Louisiana brief points to Roberts’ 2013 opinion in Shelby County v. Holder, a decision that gutted sections 4 and 5 of the Voting Rights Act. Those sections required certain states with a history of racial discrimination to obtain “preclearance” with courts or the Justice Department for election laws and district maps.
“We have seen similarly once-permissible racial classifications be held unconstitutional when the facts justifying their existence were no more—specifically in the Voting Rights Act (‘VRA’) context,” the brief states.
The brief goes on to quote Roberts’ opinion in Shelby County: “Our country has changed, and while any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions.”
For these reasons, Louisiana Republicans argued, “the district court should be permitted to address, in the first instance, whether the facts on the ground here similarly warrant a rejection of Section 2 of the VRA, as applied, because it is no longer necessary.”
This is a direct challenge to the continued constitutionality of Section 2, the most widely used part of the law to fight racial discrimination in elections. Section 2 forbids the enactment of voting laws, policies and district maps that result in the “denial or abridgement of the right of any citizen of the United States to vote on account of race or color.” This ban on racial (and language-based) discrimination in elections can be triggered by discriminatory purpose or discriminatory impact.
Though the Supreme Court upheld precedents allowing racial discrimination challenges to congressional district maps under Section 2 in Allen v. Milligan, it notably did not address whether those precedents can continue to stand or, like affirmative action, must have an end date. That’s because the Alabama Republicans who brought the challenge did not ask the court to do so.
The question now is, after upholding its Section 2 precedents in Allen, would the court so quickly turn around and dismantle Section 2 in Robinson v. Ardoin?
Four conservative justices — Clarence Thomas, Samuel Alito, Neil Gorsuch and Amy Coney Barrett — were ready to gut Section 2 in Allen v. Milligan. To do so in Robinson, they would need an additional vote from either Roberts, who previously ended Section 5’s preclearance provision on a time-based argument, or Brett Kavanaugh, who noted that the court did not rule on the question in Allen.
“Alabama did not raise that temporal argument in this Court, and I therefore would not consider it at this time,” Kavanaugh wrote in a concurrence for that case.
In his majority opinion for Allen, Roberts outlined a firm defense of Congress’ intent in passing a law allowing plaintiffs to bring cases alleging racial discrimination in redistricting under Section 2 and the court’s precedents interpreting that law. So, Robinson v. Ardoin may ultimately come down to how Kavanaugh views the so-called temporal argument.