Here’s a transcript of a bit of my Slate Amicus podcast conversation with Dahlia Lithwick:

Can you just explain to us what happens if Section 2 of the Voting Rights Act is no longer the mechanism by which voters can remedy racially discriminatory voting practices?

It would be an earthquake in American politics, like nothing we’ve seen before, because Section 2 applies nationwide, it applies to congressional districts, it applies to city council races, it applies to state legislative districts. Any place where legislative lines are drawn and white people and minority voters prefer different candidates—and that’s not just in the South, that’s in parts of California, that’s in places all over the country—Section 2 would no longer require race-conscious districting, and it would mean that our legislative bodies will be less diverse. They will be whiter. Now some of the people who’ve been elected before as incumbents, they’d still be able to get elected, but you’re going to see a bunch of redistricting in places where you could draw more Republican seats and squeeze out seats. Think about some of the most prominent Black members of Congress, the most prominent Latino members of state legislatures; some of these people would no longer be able to get elected. It would be huge. So I can’t even tell you what an effect Section 2 has had in assuring fair minority representation in this country, and it would be gone.

The mask is truly off.

As noted yesterday, Louisiana essentially flipped sides in the Lousiana v. Callais case. In an earlier brief, Louisiana argued that its congressional districts were not a racial gerrymander because politics, rather than race, predominated in drawing district lines. Now that the Supreme Court has disturbingly ordered reargument and put up to debate whether compliance with Section 2 could ever constitutionally justify making race the predominant factor in redistricting, Louisiana has done an about face, and is arguing in essence that Section 2 is unconstitutional in demanding race conscious redistricting, and it exceeds Congress’s power to act (citing Shelby County, where the Court held preclearance now exceeded Congress’s power and assured us, don’t worry, there’s always Section 2).

So it has fallen to the NAACP LDF, the ACLU and other leading voting rights organizations to file a brief (the brief for the “Robinson Appellants”) that takes to the main defense of the constitutionality of the VRA, setting up totally different dynamics at one of the highest stakes oral arguments in the new millennium.

It’s a compelling brief, and one of its earliest arguments is that the Court should not even reach the issues in this case because the question was not briefed below and there is no factual record in the lower courts:

First, because they did not raise this claim before the district court, Appellees presented no facts below casting doubt on the constitutional propriety of the Legislature’s reliance on the Robinson courts’ findings. There is simply no factual or other record basis in this case for this Court to address the asapplied argument that Appellees now urge. Cf. Milligan, 599 U.S. at 45 (Kavanaugh, J., concurring) (declining to consider this “temporal argument” where the state failed to raise it). In contrast, the decisions in Robinson of two unanimous Fifth Circuit panels and the district court were all faithful to this Court’s precedent. All found, based on an extensive record, that current conditions in Louisiana had denied Black voters the opportunity to elect the candidates of their choice. All agreed that the Robinson Appellants had offered reasonable plans that both did not allow race to predominate and better respected traditional redistricting criteria than the 2022 plan. Nothing in Appellees’ brief offers any evidence that might undermine the detailed findings and considered analysis of the Robinson courts.

The masterfully done brief continues:

Second, Appellees’ as-applied attack on §2 fails because the notion that the sun has set on the need for race-conscious remedial redistricting for identified instances of racial vote dilution is contrary to both the fact of ongoing discrimination in Louisiana and the text and purpose of §2 as it was amended in 1982 and has been consistently interpreted by this Court ever since. Congress enacted §2 pursuant to the specific textual authorizations in the Fourteenth and Fifteenth Amendments, U.S. Const. amend. XIV § 5; U.S. Const. amend. XV § 2. Section 2 focuses on discriminatory results, not subjective intent. Banning state actions with a discriminatory result without requiring a finding of subjective discriminatory motive is “an appropriate method of promoting the purposes of the Fifteenth Amendment.” Milligan, 599 U.S. at 41 (citation omitted). And Congress wisely did not choose to enact a “freewheeling disparate-impact regime.” Brnovich v. Democratic Nat’l Comm., 594 U.S. 647, 674 (2021). Rather, §2’s “exacting requirements” serve to “limit judicial intervention to those instances of intensive racial politics where the excessive role of race in the electoral process denies minority voters equal opportunity to participate.” Milligan, 599 U.S. at 30 (cleaned up). Congress thus properly acted at the heart of its textually conferred constitutional powers when enacting §2. See id. at 41.

Section 2’s limited scope ensures that a state’s interest in remedying a violation is sufficiently
compelling to withstand constitutional scrutiny. The “prevention and remedying of racial discrimination and its effects is a national policy of ‘highest priority.’” United States v. Paradise, 480 U.S. 149, 168 (1987) (citation omitted). A state thus has a compelling interest in remedying discrimination if: first, the discrimination it seeks to remedy is “identif[ied] . . . with some specificity,” and second, the state has “a strong basis in evidence” to conclude that its remedial action is necessary to redress that discrimination. Shaw v. Hunt, 517 U.S. 899, 909-910 (1996) (citation omitted) (“Shaw II ”). Strict compliance with the Gingles standard ensures that §2 compliance remains a compelling interest, especially when used to remedy a violation pursuant to court order. Thornburg v. Gingles, 478 U.S. 30 (1986).

Third, Appellees’ as-applied attack fails because it rests on the faulty assumption that §2 contemplates overly broad race-based remedies. This fundamentally misunderstands the statute and the standards under which it operates. Congress and this Court have constrained race-conscious remedies in §2 in two critical respects: First, through the Gingles framework, it requires evidence that “present local conditions” evince race discrimination, and second, under Shaw’s predominance standard, race-conscious remedial districts are subject to safeguards against excessive consideration of race. See Abbott v. Perez, 585 U.S. 579, 619 (2018) (reversing §2 vote dilution findings where “almost none” of them referenced current conditions) emphasis added). In addition, the Gingles analysis and §2 remedial districting are always based on the latest census and election data, requiring the need for a remedy to be reevaluated at
least every ten years. Where new elections or census data show that a remedy is no longer viable or necessary, §2 cannot (and does not) justify race-based redistricting in perpetuity based on past violations. See Cooper v. Harris, 581 U.S. 285, 302-304, 306 (2017).

Section 2 remedies only come into play in places where a violation or potential violation is shown. Significantly, the first step in establishing a violation of §2 involves “Plaintiffs adduc[ing] at least one illustrative map that comport[s] with [this Court’s] precedents.” Milligan, 599 U.S. at 33 (plurality). Successful §2 cases thus always offer at least one narrowly tailored remedy. Id. Once a violation is proven, states have significant flexibility in enacting
§2 remedies. So long as it addresses the violation, a remedial district need not be majority-minority to satisfy §2 and must not consider race more than necessary to provide the required electoral opportunity. See Cooper, 581 U.S. at 305-306; Abrams v. Johnson, 521 U.S. 74, 93-94 (1997); Lawyer v. Dep’t of Justice, 521 U.S. 567, 575 (1997).

Section 2, moreover, applies nationwide, and thus does not implicate the concerns about equal
sovereignty and specific burdens imposed on states that animated this Court’s enjoining of the VRA’s preclearance coverage formula. See Shelby Cnty. v. Holder, 570 U.S. 529, 537, 557 (2013) (“Our decision in no way affects the permanent, nationwide ban on racial discrimination in voting found in § 2.”).

Fourth, because Appellees failed to adduce any evidence to support their attack on the
constitutionality of the Legislature’s reliance on the §2 findings in Robinson, this Court should reject that attack outright. But even if the Legislature’s consideration of race in SB8 exceeded §2’s careful constitutional constraints, this case should be remanded for development of a new map to remedy the §2 violation identified in Robinson. See Bush v. Vera, 517 U.S. 952, 994 (1996) (O’Connor, J., concurring) (“[I]f a State pursues that compelling interest by creating a district that substantially addresses the potential liability[], and does not deviate substantially from a hypothetical court-drawn § 2 district for predominantly racial reasons[], its districting plan will be deemed narrowly tailored.”) (cleaned up). The record in this case, as the district
court acknowledged, does not provide grounds for collaterally overruling the Robinson court’s
application of §2 to conditions in Louisiana or for assessing the constitutionality of other maps with two Black-opportunity districts.

Mark Sherman for the AP:

Louisiana on Wednesday abandoned its defense of a political map that elected two Black members of Congress and instead called on the Supreme Court to reject any consideration of race in redistricting in a case that could bring major changes to the Voting Rights Act.

Appealing to a conservative-dominated court that has been skeptical of the use of race, Louisiana is advancing a position that could allow it and other Republican-led states in the South to draw new maps that eliminate virtually all majority Black districts, which have been Democratic strongholds, voting rights experts said.

“If Louisiana’s argument prevailed at the Supreme Court, it would almost certainly lead to a whiter and less representative Congress, as well as significantly less minority representation across the country in legislatures, city councils, and across other district-based bodies,” UCLA law professor Richard Hasen said in an email….

Linda Greenhouse NYT column.