The Voting Rights Act suffered another body blow last week, with the U.S. Court of Appeals for the 5th Circuit throwing out its own precedent. The VRA, once an example of bipartisan commitment to rectifying the historic injustices perpetrated against Black voters, has been degraded, piece by piece. In part, this is due to Donald Trump getting four years to stuff the federal judiciary with members of the right-wing Federalist Society, but none of this would have been possible if one Chief Justice John Roberts hadn’t made it his life’s work to dismantle the VRA.
In Petteway v. Galveston, which was filed this past Thursday, the 5th Circuit, sitting en banc, ruled that Section 2 of the VRA does not authorize coalition claims of vote dilution. Dilution typically occurs through redistricting. Blocs of minority voters get “packed” into one district while being “cracked” across others—maneuvers that weaken those voters’ ability to elect their preferred candidate.
In this case, which combined three lawsuits filed against Galveston County, Texas, the county commission drew district maps that eliminated the lone district without a white majority, which also happened to be the sole district that reliably elected a Democrat.
Since 1988, when the 5th Circuit decided Campos v. City of Baytown, minority voting blocs in Texas, Louisiana, and Mississippi have been allowed to form coalitions to bring vote dilution lawsuits under Section 2 of the VRA. So, while a group of Black voters might not be large enough to show they represented a voting bloc whose strength had been diluted, that group could form a coalition with another minority group to make that claim.
In Petteway v. Galveston, the county’s maps were challenged by a coalition of Black and Latino groups and current and former officeholders. The lower federal court agreed with the plaintiffs and ordered the maps redrawn. A three-judge panel of the 5th Circuit upheld the lower court but then asked that the entire 5th Circuit rehear the matter, requesting the full court overturn its own Campos precedent. The full court obliged and, with Judge Edith Jones writing for the court’s conservative majority, tossed out several decades of precedent and radically altered the scope of the VRA.
Without further context, this can feel a bit esoteric. For better or for worse, the Petteway case provides a perfect real-world example of why blocking coalition claims is both straight-up racist and antithetical to the VRA. To succeed in a vote dilution claim, a minority voting bloc must show it is large enough and compact enough. The bloc must have enough people and be in a small enough geographical area to demonstrate that it would be the majority of a district.
Here, neither the Black nor Latino voting blocs, standing alone, would have been sufficient to mount a challenge based on claims of vote dilution. Until this decision came down, minority groups could form a coalition by showing the groups voted in politically cohesive ways and faced a consistent threat of defeat by white-bloc voters under the diluted maps. Now, they no longer can. This means any other jurisdiction in the 5th Circuit can do what Galveston County did here, which is to carve up voting maps to the detriment of anyone who isn’t white as long as those groups were already small enough to be vulnerable to just such a move. As the dissent in this case pointed out, Galveston transformed a single precinct from having the highest percentage of Black and Latino residents to the lowest, despite there being no reason to make significant changes to the precinct.
With this decision, the 5th Circuit dramatically reduced the scope of Section 2 of the VRA in the states it covers. It also gives the Supreme Court the opportunity to impose that narrowed scope on the rest of the country.
Which brings us back to Roberts. He began his career clerking for right-wing Supreme Court Justice William Rehnquist. Rehnquist was a man who thought all-white primary races were perfectly constitutional and was just fine with the holding in Plessy v. Ferguson, which upheld racial segregation, even after he ascended to the post of chief justice. After Roberts’ clerkship, he went to work in Ronald Reagan’s Department of Justice, where in 1981 he advised that “Violations of Section 2 should not be made too easy to prove, since they provide a basis for the most intrusive interference imaginable by federal courts into state and local processes.” His upward trajectory landed him on the Supreme Court in 2005, and later, in 2013, he got to write the decision that should hang around his neck until he shuffles off this mortal coil: Shelby County v. Holder. Roberts’ majority opinion in Shelby gutted a different part of the VRA, Section 4, which had required jurisdictions with a history of racial discrimination to “preclear” with the DOJ any proposed changes to their election laws.
Roberts’ opinion is nothing but a blithe, ahistorical view of the VRA, one in which he somehow looked at the progress made under four decades of the law and determined that meant it was no longer needed. It echoed his majority opinion in 2007’s Parents Involved in Community Schools v. Seattle School Dist. No. 1, where he gutted protections against school segregation by declaring that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”
Indeed, Judge Jones likely had that in mind as she drafted the majority opinion in Petteway. Her own words display the same faux-evenhandedness as Roberts’, one which relies upon pretending that racism either never existed or has magically been fixed and that the “real” racism is anything that seeks to provide people of color with equity and opportunity. Jones wrote that the groups who sought to bring coalition lawsuits were actually the ones who “encourage divisively counting citizens by race and ethnicity and displace the fundamental principle of democratic rule by the majority with balkanized interests.”
All of these conservative jurists are going to keep whacking away at the VRA, removing its core protections, leaving all but white voters adrift. For John Roberts, that’s a feature, not a bug.
