I do not think the affirmative action cases, or Shelby County, directly cast doubt on the constitutionality of Section 2 of the Voting Rights Act. Louisiana has now raised this question in its letter filing with the Fifth Circuit in the Sec. 2 case pending there. In addition, a sentence in Justice Kavanaugh’s concurrence in the Alabama VRA case introduced the question of whether there might be some temporal limit on Sec. 2 in the redistricting context. See Allen v. Milligan, 143 S. Ct. at 1519 (Kavanaugh, J., concurring) (“Justice Thomas notes, however, that even if Congress in 1982 could constitutionally authorize race-based redistricting under §2 for some period of time, the authority to conduct race-based redistricting cannot extend indefinitely into the future. See post, at 1543–1544 (dissenting opinion). But Alabama did not raise that temporal argument in this Court, and I therefore would not consider it at this time.”)

But Sec. 2, at least in the redistricting context, requires plaintiffs to prove that racially-polarized voting (RPV) exists today in the jurisdiction at issue. The remedy of creating a VRA ability-to-elect district is thus directly tied to judicial findings that “current conditions” — as Shelby County puts it — of racially-polarized voting exist in the specific jurisdiction at issue. The Court’s opinion in SFFA, the affirmative action case, continues to recognize the constitutionality of remedies for “specific, identified instances of past discrimination that violated the Constitution or a statute.” That is essentially how Sec. 2 works: plaintiffs bear the burden of proving to a court that racially-polarized exists in the jurisdiction at issue, along with other relevant factors. Among these other factors, a critical one is that voting patterns must be such that the majority regularly defeats the minority’s preferred candidates. Again, that makes Sec. 2 inherently tied to current circumstances.

Sec. 2 thus has a built-in temporal limit: once RPV voting no longer is occurring, Sec. 2 is no longer applicable. In that sense, Sec. 2 has a self-unwinding mechanism. The Act does not attempt to remedy societal-wide discrimination; it is not based on practices of polarized voting or discriminatory voting practices that might have occurred in the distant past; it makes no assumptions about how voters of different races behave, nor does it rest on any stereotypical assumptions. It applies uniformly throughout the country and it is inherently based on current conditions. It also has the imprimatur of Congress. It is not inconceivable the Roberts Court would re-define the concept of “polarized voting,” perhaps along the lines of Justice O’Connor’s concurring opinion in Thornburg v. Gingles, but I don’t think the affirmative action cases provide a basis for holding Sec. 2 unconstitutional.