The conservative justices are showing activists exactly how to circumvent the Voting Rights Act

Raffensberger also claimed that Section 2 is constitutionally flawed simply because it still exists: “Neither Congress nor anyone else has explained how much time must pass, or what benchmark must be reached before § 2 will end,” he wrote. This too borrows from Roberts, who wrote in last year’s affirmative action cases that the race-conscious admissions programs at Harvard and the University of North Carolina lacked meaningful endpoints and the courts did not provide clarity on how to measure the programs’ goals. Also in his agreement with All against MilliganIn another voting rights case, Judge Brett Kavanaugh wrote last year that Section 2 remedies “cannot continue indefinitely into the future.” Kavanaugh’s argument features prominently in Raffensberger’s letter, as well as in one of his statements amicus brief submitted by fourteen Republican-led states: together they quote that one Kavanaugh sentence six times.

Perhaps the boldest claim in Raffensberger’s letter is that there is no private right of action under Section 2, meaning that only the Justice Department, and not ordinary people, can file lawsuits to enforce the law. This is contrary to decades of practice and precedent, and is contrary to the public interest: communities actually affected by VRA violations are often best positioned to initiate VRA lawsuits. If we have to rely on the DOJ’s prerogatives, the VRA would effectively become optional with a Republican in the White House.

But here too, Raffensberger gets help, this time from Justice Neil Gorsuch: Raffensberger’s claim exactly matches Gorsuch’s agreement in Brnovich vs. DNC, where the judge suggested that in all previous voting rights cases, the Court had merely assumed the existence of a private right and that it was effectively an “open question.” This is a tall order at best: the Court ruled almost thirty years ago Morse vs. Republican Party of Virginia that there must be a private right of action under another part of the VRA because there is a private right under Article 2. So the point is not that the Court assumes that a private right exists, but rather that Gorsuch assumes that he can get away with saying that it does not exist.