The following is an important guest post from Pam Karlan:

In a recent post describing his amicus brief in Louisiana v. Callais, Nick Stephanopoulos points out a “large decline in racially-polarized voting” in many jurisdictions may preclude plaintiffs in those places from showing an essential element of a section 2 case.

This fact should be answer enough to the concern Justice Kavanaugh floated in his concurrence in Allen v. Milligan—that even if amended section 2 were justified “for some period of time,” its requirements “cannot extend indefinitely into the future.” They don’t. As I’ve explained elsewhere, even though section 2 contains no formal “sunset provision,” the requirement that plaintiffs prove racially polarized voting provides a clear “durational limit on section 2’s operation.” To paraphrase the language of Shelby County v. Holder, liability in a section 2 case is always “grounded in current conditions.”

But the fact that the rate at which new section 2 cases are brought and won has slowed over time does not mean that striking down or significantly weakening section 2 will have little effect going forward. That is because a huge number of existing minority districts, perhaps the majority of them in some jurisdictions, are descendants of districts created in response to earlier section 2 suits or section 5 preclearance proceedings.  Consider Louisiana itself. The one majority-Black congressional district Louisiana had before to the section 2 lawsuit that led to Callais was the product of Major v. Treen—one of the first cases litigated under amended section 2.

While section 2 exists, it deters states from indiscriminatingly dismantling these districts. In places where racial bloc voting persists, eliminating those districts would violate section 2’s results test, so any new plan would be struck down. But without section 2, plaintiffs would have to use the fourteenth amendment. This would demand that they prove the jurisdiction eliminated the district with the purpose of diluting minority voting strength. That was hard enough to prove in the days before section 2 was amended in 1982. (Indeed, the difficulty of proving that sort of racially discriminatory purpose was why Congress amended the VRA.) But today, the Supreme Court may have made it even harder to prove discriminatory purpose: In Alexander v. South Carolina State Conference, the Court took the position that reducing minority political power for partisan reasons is a form of legislative “good faith” that can defeat a racial gerrymandering claim.  So jurisdictions may well decide they can escape liability for getting rid of minority opportunity districts by asserting political motives for doing so.

And consider what might happen if the Supreme Court holds that the remedial district in Louisiana is unconstitutional because race cannot figure heavily either with respect to the first Gingles prong (where plaintiffs are required to present illustrative districts where the plaintiff group forms a majority of the citizens of voting age) or with respect to the remedy (where the jurisdiction or the court purposefully draws a minority opportunity district). Will this cast doubt on the constitutionality of existing districts that were originally created decades ago as remedies for section 2 violations? After all, these districts were adopted in a race-conscious process. To be sure, in Easley v. Cromartie the Court suggested that “preserv[ing]” for incumbent protective or political reasons the core of a district that was initially an unconstitutional racial gerrymander might not itself violate the Constitution. But it’s unclear whether a Court that decides to gut the Voting Rights Act would allow existing districts to remain. Just look at the letter that DOJ sent to Texas to get a sense of what might be coming next.

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.