Last week, Eric Holder announced that the Department of Justice would sue Texas over its new voting ID law and redistricting plan. Vowing that the U.S. wouldn’t allow the recent Supreme Court decision gutting Sections 4 and 5 of the Voting Rights Act to invite states to suppress minority voting rights, Holder promised that the Obama administration would sue under a different provision of the Voting Rights Act—Section 2—which the Court didn’t address in the case. As Molly Redden has reported, the lawsuits face an uphill battle because courts have interpreted Section 2 of the voting rights act to ban only voting practices that are intentionally discriminatory and have established a high burden of proof for intentional discrimination.

There is, however, another, deeper reason that the Section 2 suits are unlikely to succeed: several of the conservative justices on the Supreme Court have expressed deep skepticism about the constitutionality of Section 2 of the Voting Rights Act itself. When Congress amended Section 2 in 1982 to ban voting practices that had the effect, rather than intent, of suppressing minority votes, the Supreme Court came close to suggesting that the 1982 amendments were themselves unconstitutional. In other words, Justice Anthony Kennedy was being idealistic, at best when he suggested at oral arguments that Section 2 might be a plausible alternative to Section 4 in preventing practices like voter ID laws that have the effect of suppressing minority participation. The fact is that the Supreme Court’s approach to Voting Rights has been like a game of whackamol: every time Congress tries to ban voting rights discrimination under one provision of the Voting Rights Act, the Court smacks it down, forcing Congress to try other approaches that are smacked down in turn. That’s why Justice Ruth Bader Ginsburg was right to tell the New York Times last weekend that “if it’s measured in terms of readiness to overturn legislation, this is one of the most activist courts in history.”

To understand the activism of the Court’s approach to Voting Rights, a brief history of Section 2 of the Act may be helpful. Section 2 says that “No voting qualification or prerequisite to voting, or ... procedure shall be imposed ... to deny or abridge the right of any citizen of the United States to vote on account of race or color.” In the 1973 White v. Regester case, the Supreme Court interpreted Section 2 to ban voting practices that had the effect of suppressing minority voting, even if they weren’t intended to do so. But in 1980, as the Court grew more conservative, it reversed itself and held that only intentional voting discrimination was illegal under Section 2. In 1982, by bipartisan majorities, Congress repudiated the Court’s narrow view of voting discrimination and amended Section 2 to make clear that voting practices that had discriminatory effects were illegal, even without clear evidence of discriminatory intent.

For nearly a decade, between 1992 and 2001, the Supreme Court came close to suggesting that Congress’s attempt to ban voting practices that had discriminatory effects was itself unconstitutional. Four conservative justices – Chief Justice Rehnquist, and Justices Scalia, Thomas, and Kennedy insisted that all racial classifications in voting were inherently suspicious, and that voting districts drawn for the benefit of minorities should be struck down whenever race was the “predominant factor” motivating their design. Four liberal justices insisted that the framers of the Fourteenth and Fifteenth Amendments intended Congress to have broad power to ban voting discrimination in all of its forms, explicit and subtle, and that the federal government’s attempt to combat voting discrimination should be upheld by the courts unless it was completely irrational. Justice Sandra Day O’Connor tried to split the difference between the two camps, at one point writing a concurrence to one of her own opinions to make clear that she believed that Section 2 of the Voting Rights Act was constitutional. Finally, in 2001, in one of the last liberal victories in a voting rights case, Justice Stephen Breyer wrote a 5-4 decision joined by O’Connor upholding the boundaries of the Twelfth Congressional district in North Carolina, which had been redrawn after the Court first struck them down in 1992. African American voters overwhelmingly voted for Democrats, the Court held, and therefore it was hard to distinguish a legislative attempt to protect incumbents from an attempt to empower African Americans. Because the protection of incumbents was a legitimate goal under Section 2 of the voting rights act, the district could stand.

In the Obama administration’s suit against Texas’s latest redistricting plan, Breyer’s opinion is now being turned on its head. In response to the Justice Department’s claim that the Texas district discriminates against minority voters, Texas has cited Breyer’s opinion to support its claim that, in fact, the district discriminates against Democrats. “DOJ’s accusations of racial discrimination are baseless,” Texas writes. “In 2011, both houses of the Texas Legislature were controlled by large Republican majorities, and their redistricting decisions were designed to increase the Republican Party’s electoral prospects at the expense of the Democrats. It is perfectly constitutional for a Republican-controlled legislature to make partisan districting decisions, even if there are incidental effects on minority voters who support Democratic candidates.” As Richard Hasen has pointed out, this argument may doom the Justice Department’s challenges not only to redistricting plans but also to voter ID laws in states like North Carolina and Texas: as long as a state can argue that its election laws were motivated by a desire to discriminate against Democrats, not African Americans, the legal challenges may well falter on the government’s inability to prove intentional racial discrimination.