SCOTUS appears bothered by this doctrine at the very moment R legislatures in the South whose interests are being constrained by its application. Kennedy of course is no longer on the court and doesn’t have to answer for it. But it shouldn’t be forgotten that this is a house that he help build.

And there's a broader attack on Section 2 as a whole. Based on a case out of LA last term, SCOTUS has asked for re-argument on whether Sec 2 aligns w 14th and 15th Ams –including the “racial gerrymandering” doctrine.

Since 1965, both the DOJ and individual plaintiffs could sue under Sec 2. As w most laws “private AGs” extend anti-discrimination law and allow voters to defend their own rights. But two appellate courts now have questioned if Congress eever intended that.

That brings us to today. Departing SCOTUS after denying a court role to ban partisan gerrymandering, Kennedy has left a terrain where Sec 2 is in doubt. While SCOTUS upheld the constitutionality in the recent AL litigation Allen v. Milligan, attacks have increased. Two in particular are of note:

The evidence since 2013 confirms the silliness of that claim. Although CJ Roberts drafted the opinion, Kennedy’s comments during the argument are noteworthy. He insisted that Section 5 was not so important because plaintiffs could always rely upon bringing claims under Section 2 of the VRA.

His hints got louder in 2013, when he cast the 5th vote to render Section 5 of the VRA ineffective The opinion was ridiculous, mostly in asserting that Sec 5 was no longer needed because AL learned its lesson since 1965 (despite evidence legislators regularly violated the standards in the law).

Kennedy joined this same group to raise questions Sec 5 of the VRA. New state voting laws (like new maps) had to be reviewed by federal offiicals to assure they didn't reverse political opportunities for voters of color. Kennedy often hinted his doubts about the continued use of this authority.

Kennedy and O’Connor joined conservatives to create a standard in the 14th Am – “racial gerrymandering.” Districts only explainable by race violate the standard, which limited D legislatures trying to balance concerns about fellow incumbents & laws to create opportunity for black communities.

Kennedy was sometimes willing to uphold findings of race discrimination in redistricting, including under Sec. 2 of the Voting Rights Act. That provision blocks new maps w the effect of limiting opportunity for voters of color to elect preferred candidates. Then something happened in the '90s.

Kennedy joined the court in 1986 when where things were balanced w votes right & the left. Kennedy and Justice O’Connor (both westerners) often found themselves sitting in the middle. Generally, that worked well for centrist arguments ... but on matters of race, the record is pretty mixed.

This after decades of hinting that he believed the constitution limits unbridled partisanship. But Kennedy should ALSO take ownership of the pending crisis we are experiencing with the Voting Rights Act. Since we’ve reached another anniversary (hopefully not its last!), let me explain why: