TO EVERYONE FREAKING OUT OVER THE VOTING RIGHTS ACT DECISION: KEEP THIS IN MIND
Look, I’m not saying that we didn’t take a hit; I’m saying that the sky is not falling – it may be a bit more cloudy, but the sky isn’t falling – the sky just is.
NOW, the big deal is that the decision said that now you have to show *intent* – that there was *intent* to take race into account when drawing a district. Previously you could infer the intent by demonstrating that a district had an *effect* of disproportionately impacting a group of people.
Yes, trying to prove intent openly and *head on* would be much more difficult – most people aren’t stupid enough to *say* that a district is drawn along racial lines.
BUT a *pretext* claim can still get you there. So I predict that lawsuits are going to start alleging *pretext*. The way this goes is this:
“They are saying that this district was drawn along political lines, but that is a *pretext*… and here is evidence that proves that the only possible factor which accounts for the lines along which the offending district was drawn is race.”
The takeaway here is that what the Supreme Court decision yesterday did does *not* preclude lawsuits under the Voting Rights Act (and it *certainly* did not “overturn” it as I’m seeing lots of social media accounts and people on social media saying.. stop that!). It makes it more difficult – and that means that lawyers are going to have to rethink strategy, but there *are* still strategies, and the lawyers will hone and perfect them. That’s what we lawyers do – when presented with a challenge we roll up our sleeves, dig in, and carry the fight forward.
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