“Suppression of Minority Voting Rights Is About to Get Way Worse; The Supreme Court has put its thumb on the scales in favor of discriminatory states.”

I have written this piece for Slate. It begins:

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 perhaps the most important part of Justice Samuel Alito’s majority opinion, the court emphasized that courts must “presume” the “good faith” of the legislatures in determining whether a state was engaged in racial discrimination. Further, because race and party overlap so much in places like Texas, what looks like racial motivation may be partisan motivation.

The upshot of this analysis is that it is going to be well near impossible for plaintiffs to prove that states have engaged in intentional racial discrimination so as to put those states back under federal supervision for voting under Section 3. With this thumb on the scale in favor of states, and the ability to say they were just being partisan and not engaged in race discrimination, they will have a freer rein to engage in discriminatory action. That’s happening not only in Texas, but in states like North Carolina (also subject to federal oversight before Shelby), which the Fourth Circuit found had targeted black Americans “with almost surgical precision” in passing an earlier strict set of voting rules and that is back at it again, trying to reimpose voter ID and pass a host of other discriminatory measures.

 

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