What’s striking about this decision is that the Fifth Circuit remains a conservative court with a majority of Republican nominees. Texas’s law was so egregious it couldn’t survive even the circuit court venue most favorable to Republicans. What this indicates is that legislatures like North Carolina, Texas, and Wisconsin have overreached. In the wake of Crawford, states could probably have continued to get away with more subtle forms of suppression. But omnibus bills that made a mockery of Chief Justice John Roberts’s blithe assertion in Shelby County that racial discrimination in voting was no longer an issue—and that therefore Congress had lost some of its explicit constitutional authority to address it—are another story.
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But this kind of overreach could have even broader consequences. Earlier this year, Anthony Kennedy voted to strike down an abortion regulation for the first time since 1992, presumably reacting to what he perceived as overreach by the Texas legislature. It’s possible that something similar will happen with voting rights. Kennedy seems to be increasingly dubious about the direction the Republican Party has taken, notably on race. In the same week he became the swing vote to strike down Texas’s anti-abortion law, he voted to uphold the state’s university affirmative action program, the first time he had ever found an affirmative action program constitutional.
Perhaps even more importantly, last year Kennedy provided a fifth vote to hold that the Fair Housing Act allows courts to consider disparate impact on racial minorities (as opposed to being limited to intentional discrimination, which is much more difficult to prove). The case suggested that he’s likely to take a dim view of the ambitious vote suppression schemes Republican legislatures keep passing.
