Kavanaugh, for his part, tried to downplay the significance of Shelby County. “There is still, of course, Section 2 of the Voting Rights Act,” the nominee explained. That provision “allows litigation brought by plaintiffs to challenge voter restrictions that are enacted with discriminatory intent or discriminatory effects.”
Thus, so long as Section 2 remains good law, a voting rights plaintiff can prevail if they show that a state law has a disproportionate effect on voters of color, even if that plaintiff cannot prove that lawmakers acted with racist intent when they voted for the law. This disparate effects test is especially important after the Supreme Court’s decision last June in Abbott v. Perez, which made it nearly impossible to prove that the lawmakers who passed a voting restriction acted with racist intent.
Abbott, like Shelby County, was a 5-4 decision with all five Republican members of the Court in the majority and all four Democrats in dissent.
After Kavanaugh brought up Section 2, Harris asked Kavanaugh a pointed question — “do you believe that Section 2 is constitutional?” The nominee’s answer was non-committal at best.
Judge Kavanaugh initially refused to answer the question because he deemed it a “hypothetical,” adding that “as a general matter, I don’t want to pre-commit on any statute.”