I have written this piece for Slate. It begins:
Reading the tea leaves from cryptic Supreme Court orders can be perilous business because the justices are not bound by the questions they ask at oral argument, the offhand comments they make at a judicial conference, or even their monumental “shadow docket” rulings on emergency petitions that have become all too common. But a technical briefing order in a long pending case out of Louisiana, posted on the Supreme Court’s website after 5 p.m. on a Friday in August, was ominous. The order was likely intended to obscure that the court is ready to consider striking down the last remaining pillar of the Voting Rights Act, known as Section 2. Such a monumental ruling, likely not coming until June 2026, would change the nature of congressional, state, and local elections, all across the country, and likely stir major civil rights protests as the midterm election season heats up….
We waited weeks for the court to issue its rescheduling order and when it came this past Friday it was a doozy. The court pointed specifically to a set of pages in plaintiffs’ brief which argue that Section 2 is unconstitutional, at least as applied in this case, and that the Voting Rights Act cannot serve as a compelling interest to defeat a racial gerrymandering claim when race predominates. “The parties are directed to file supplemental briefs addressing the following question raised [in that brief]: Whether the State’s intentional creation of a second majority-minority congressional district violates the Fourteenth or Fifteenth Amendments to the U. S. Constitution.”
Although the court’s order did not explicitly mention Section 2 or even the Voting Rights Act more generally—unquestionably to obscure things further—there is no doubting what’s going on here. The court is asking the parties to consider whether Louisiana’s compliance with Section 2 of the Voting Rights Act by drawing a second majority-minority district—as the earlier Ardoin case seemed to require—was unconstitutional under a view of the Constitution as requiring colorblindness.
If the Supreme Court moves forward with this interpretation it would be a sea change to voting rights law. A reading of the Constitution as forbidding race-conscious districting as mandated by Congress to deal with centuries of race discrimination in voting is at odds with the text of the Constitution, with the powers granted directly to Congress to enforce the Fourteenth and Fifteenth Amendments, and with numerous precedents of the Supreme Court itself. It would end what has been the most successful way that Black and other minority voters have gotten fair representation in Congress, state legislatures and in local bodies. It would be an earthquake in politics and make our legislative bodies whiter and our protection for minority voters greatly diminished. Even if the court less drastically says that Section 2 could not be used to require the second congressional district in this case, such a superficially more minimal ruling would mean the quick unraveling of most Section 2 districts because if the facts in Louisiana don’t justify drawing a second district, most other Section 2 claims would fail too….
Court conservatives likely thought teeing up the issue of overruling Section 2 on a hot summer weekend would avoid public notice. But that’s a short term strategy. Come next June, any decision to strike down what’s left of the Voting Rights Act could kick off the start of a new civil rights movement and more serious talk of Supreme Court reform in the midst of crucially important midterm elections. A court fundamentally hostile to the rights of voters places the court increasingly at odds with democracy itself.