Dem
47
GOP
53
Yesterday, the Supreme Court's attacks on democracy continued with its decision in Louisiana v. Callais, which gutted Section 2 of the Voting Rights Act. This means that the last substantive part of the already-hollowed-out VRA is basically done for, and one of Lyndon B. Johnson's two signature legislative achievements is effectively dead.
The ruling is exactly as bad as feared, while being couched in language designed to disguise its impact. Leave it to Associate Justice Samuel Alito, who wrote the majority opinion, to put the final nail in the coffin of the VRA and yet to claim there's really nothing to see here. Yeah, and it's his wife who insists on flying racist flags at his house—what does he know from flags? Nothing to see there, either.
The 6-3 decision, which broke along partisan lines, struck down LA-06—which was drawn as majority-Black to comply with the VRA following litigation—as an unconstitutional racial gerrymander. If you're feeling whiplash, you're not alone. Just two years ago, this same Court upheld a decision requiring Alabama to draw a second majority-Black district to comply with the VRA. Here, Alito's decision seems to leapfrog the VRA to find that Louisiana's effort to comply with the federal law in the same way Alabama did now violates the Fifteenth Amendment. So, while the decision doesn't explicitly strike down Section 2, it renders it "essentially toothless," as Associate Justice Elena Kagan notes in her sharply-worded dissent.
Section 2 was strengthened in 1982 by a bipartisan majority in Congress, following a Supreme Court case that held that ONLY intentional race discrimination violated the VRA, and prohibits ANY voting standards or practices that "result in a denial or abridgement of the right... to vote on account of race or color." After this change, federal courts held that race-based remedies to correct violations of the VRA were acceptable.
But the Supremes ignored all that history and the text of the law itself. The Court seems to be saying that to the extent court precedents interpreted Section 2 as going beyond what the Fifteenth Amendment allows, the tests under those precedents are wrong and must be modified. So, the problem is framed as one of an evolution of the Court's understanding of Section 2's goals rather than a problem with the statute itself. But that framing allows the Court to fashion a major reinterpretation of Section 2 that will likely undermine its goals without explicitly striking the section down. The Court has returned to its previous holding, before the statute was amended in 1982, that only intentional discrimination is unlawful because, the Court says, the Fifteenth Amendment prohibits ONLY purposeful race discrimination and NOT discriminatory impacts.
There's no question that in addressing race discrimination in voting, it's somewhere between "tricky" and "impossible" to offer solutions that aren't themselves race-based. And the Court should grapple with questions such as "When does 'equal protection' become improper preferential treatment?" and "How should discriminatory impacts be addressed to enforce the Fifteenth Amendment's guarantee of equal voting rights?" Yesterday's ruling doesn't address those questions. What it DOES do is set a very high bar for states to create majority-minority districts. But no doubt that outcome is purely coincidental.
As a result of this decision, many existing majority-minority districts are likely in jeopardy. According to Alito, even if there are maps that work without breaking up those districts, the state can still proceed if they provide "a legitimate reason for rejecting all those maps and eliminating all majority-minority districts." And, as readers know, the Court determined that partisan gerrymandering is constitutional and can't be reviewed by the courts. Alito now relies on that to create a further obstacle to a successful Section 2 case: a plaintiff must "disentangle race from politics by proving that the former drove a district's lines." That's a pretty clear blueprint for states looking to "crack" those districts. If they can provide pretty much ANY justification for distributing minority communities across several districts, outside of "We did it to discriminate against minority voters," then that is enough to satisfy the Court. Of course, some states with such districts will keep them because either (1) Republicans don't control the redistricting process, or (2) even an aggressive gerrymander won't change anything.
The Downballot has a rundown of the House districts most vulnerable to being dismantled. Not surprisingly, all are in Southern states: Alabama, Georgia, Mississippi, South Carolina, Tennessee, Texas, Florida and, of course, Louisiana. Most of those districts are currently represented by a non-white Democrat. And as the linked article points out, it's not just Congress that's impacted. State legislatures, city councils, school boards, etc. have all been required to follow the VRA, and now they can ignore it.
What can Congress do? Well, it can pass laws (when there's a majority that actually wants to do that) regulating the redistricting process and can set parameters and restrictions on the practice. Congress can also say that political blocs, who also happen to be of a particular race, should be kept together. In that case, Congress could plausibly say that race is incidental and that how the group votes is the primary driver since partisan gerrymandering is OK.
Meanwhile, how does one enforce the VRA now? It's hard to see how any group can prove a Section 2 violation under this new standard. Alito muses about "societal changes" and increased voter registration and turnout among minorities as reasons for changing how these claims are evaluated. He claims that the two-party system whereby most minorities vote for Democrats means that they now have the same "opportunity" as every other voter. It's a bizarre syllogism. That brings to mind Associate Justice Ruth Bader Ginsburg's famous line from Shelby: "That's like throwing away your umbrella in a rainstorm because you're not getting wet."
This is a trend we've been seeing with this Court for all civil rights laws, namely the majority taking the view that
remedial efforts to address race and gender discrimination are themselves discriminatory, and thus illegal. We're
already seeing reverse-discrimination suits claiming that any programs designed to remedy racism or past
discriminatory practices are themselves suspect. Indeed, the Civil Whites Rights Division of the DOJ under
Harmeet Dhillon has already directed her staff to take aim at programs meant to diversify the workplace, such as
Coca-Cola's
women's networking event.
It's clear those claims will get a receptive audience at the Supreme Court. (L)