Voting Rights Are on the Supreme Court’s Chopping Block

Chip Somodevilla/CNP/Zuma

The current Supreme Court, helmed by Chief Justice John Roberts, has been focused on chipping^[2] away^[3] at civil rights laws^[4] and policies^[5] for 20 years. On Wednesday, the justices will hear oral arguments in a case that could represent not just another chip, but a fatal blow to the load-bearing pillar of American multi-racial democracy: The 1965 Voting Rights Act.  

Section 2 of the VRA requires^[6] that people of color have an equal opportunity to elect representatives of their choice. The goal of the legislation was to end the Jim Crow system in which Black people were shut out of the political process, particularly in the former confederate states. Over the past 60 years, the section has curtailed a wide range of discriminatory practices, while fostering the creation of districts where communities of color can elect candidates of their choice. To further weaken or dismantle Section 2 would allow states, cities, and other localities to lock racial minorities out of power, from Congress to school boards, across the country, and particularly in the South. 

This challenge to Section 2 came from a group of non-Black Louisiana voters and their Republican-aligned lawyers^[7] who allege that the creation of a second majority-Black district in the state in compliance with Section 2 has actually violated their rights under the Fourteenth Amendment’s guarantee of equal protection and the Fifteenth Amendment’s prohibition on racial discrimination in voting. Their theory of the case is that creating equal voting rights for Black people is unconstitutional racial discrimination against white people. As they explicitly state in their briefing^[8]: “Rather than eliminating hard-to-reach discrimination, Section 2 is now discrimination’s main source and aggravator.”

This case should have been decided last term when it came before the court. But rather than rule on the fate of Louisiana’s second majority-Black district on narrower grounds, the justices scheduled the case for reargument this week to address the question of whether using Section 2 to provide political opportunities to racial minorities is itself unconstitutional race-based discrimination against white people. The fact that the court, with its 6-3 GOP-appointed majority and its long history of going after voting rights and civil rights, chose to take up this specific question is a strong indication that the Republican wing will adopt a version of this argument, weakening or jettisoning a seminal protection for minority voters across the country.

Legally, this is a perverse argument. The Reconstruction Amendments were adopted to end slavery and provide Black people with equal rights, including the right to vote. To use those same amendments^[9] as weapons of white supremacy today is not just legally incorrect—it is a tragedy. 

The justices may want to focus on theoretical questions of how to apply the Constitution’s promises of a right to vote and the equal protection of the laws, as their framing of the arguments suggest. But the case isn’t just an academic dispute. It’s actually a case about facts, even if they may be largely absent from Wednesday’s oral arguments and the majority’s eventual opinion. The non-Black voters and their lawyers claim Section 2’s requirements burden states with intrusive federal oversight that is unjustified by current conditions. And so the question is, on their terms, if the state of Louisiana and the others have moved so far beyond where we were in 1965 that this law is no longer warranted.

To ask Black people in Louisiana, the answer is clearly no. Take an amicus brief^[10] from the Louisiana Legislative Black Caucus, an association of state legislators, which details case after case of discrimination against their members and Black voters in the state. “Black candidates face both open and subtle racial indignities when campaigning and some have observed that open racism has only increased in recent years,” the brief states. “Without this vital bulwark against anti-Black policies and practices, ongoing efforts to gerrymander and dilute the Black vote will proceed uninterrupted. Black voters will be deprived of their right to meaningfully participate in the political process, plunging Louisiana into a new era of racial ignominy.”

Here are a few choice examples from the brief: 

When one LLBC member recently went door knocking in a predominately white neighborhood, he was questioned by a constituent as to why he was campaigning there (despite it being squarely within his district). The not so subtle message was that even as a Black elected leader, he was not welcome to walk in this predominately white neighborhood. Another member, who has held public office in various capacities for almost fifty years, has experienced open racism on the campaign trail that is just as terrible, if not worse, than when he began his career in the 1970s. Earlier in his career, neighbors who disagreed (or took issue with the color of his skin) were still cordial and polite as he went door to door for his campaigns. During his most recent campaign, doors were slammed in his face. Racist comments were uttered as he sought to engage with voters and constituents.

In August, the mayoral race in New Orleans was marred by a leaked email in which a major donor queried whether and when to inject racial conflict into the campaign. The email referenced an allegedly fabricated story that the staff of a Black candidate had called the donor’s preferred mayoral candidate a “white devil.”…

In 2018, LLBC member Representative Steve Jackson received a death threat when running for mayor in Shreveport. Upon returning home one day during the campaign, he found a computer printout on his doorstep in which someone had placed a photo of his face with a noose around it. Representative Jackson had been advocating to remove a Confederate statue from the local courthouse property. Below the image, the perpetrator typed out: “LEAVE OUR STATUE & PROPERTY ALONE & GET OUT OF THE RACE N——” on the sheet of paper.

The brief goes on to describe how white legislators ignore the concerns of their Black constituents, making the creation of Black opportunity districts imperative to Black people’s political power in the state. The legislators say the situation has become so grievous, with Black people unable to get attention from their non-Black representatives for crumbling roads and sewage systems, that Black representatives from other districts effectively must represent those people. The LLBC has even created “an informal network” to connect Black residents to the nearest Black representative in order to get their concerns aired in the state capital. 

Without Section 2, they warn, the legislature will strip away as much Black representation as possible. “LLBC members received a text message while preparing this brief informing them that they must hold dates in late October for a potential special session shortly after the hearing for this case,” the brief states. “There is no question that the goal of the majority in such a session is to redistrict the State’s congressional map… The Legislature is poised to act to roll back the progress made over the past several decades—forecasting how rapidly and aggressively Louisiana will act if this Court removes protections.” (After pushback^[11], the Louisiana legislature is expected to wait until after the Supreme Court issues a decision to redraw its maps.)

On the other side of the ledger, the group of non-Black voters and their lawyers are light on the facts. The non-Black voters who make up the allegedly injured party bringing the case don’t seem particularly harmed. A New York Times investigation^[12] found some of the plaintiffs weren’t even aware they were part of the case, and as their original complaint^[13] in district court states, many of the plaintiffs won’t even be moved into a new district under the map they are challenging.

What little harm they can muster seems to be a weaker version of the harm the LLBC brief claims Black people already suffer: “The harm is felt by African American and non-African American voters alike, who no longer can influence their communities,” the complaint states. “Instead, both sets of voters are separated from their communities and thrust into districts with other voters hundreds of miles away, with whom they have little in common apart from race. The result is they do not have the same power to appeal to their congressional representatives—some of whom may have no knowledge of their region or culture.” Whereas this alleged harm is speculative, the real harm of representatives ignoring their constituents is actually one factor^[14] Congress has articulated for determining whether a minority opportunity district is appropriate under Section 2—and as the LLBC brief points out, it’s already happening to Black voters in Louisiana.

One of the more startling aspects of the plaintiffs’ arguments against Section 2 comes at the end of the non-Black voters’ September brief to the Supreme Court, in which the lawyers seem to abandon the suggestion that racial polarization and animosity have receded to instead paint Black and white Louisianans as engaged in an eternal struggle over a limited number of congressional seats. Drawing from Roberts’ decision two years ago ending affirmative action in higher education, they allege that congressional representation is a “zero-sum” situation that pits racial groups against each other, in the same way that Black and white applicants vie for a limited number of spots in a freshman class. Ensuring representation for Black voters, they continue, “perpetuates discrimination.” This claim doesn’t actually make sense, nor is it followed by any sort of explanation—but it does allow them to make reference to a 2007 Roberts opinion in which he famously wrote: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” In other words, the lawyers admit that there is currently racial disharmony and then suggest that the only way to end it is to let white people take representation from Black people.

The plaintiffs’ arguments in favor of ending Section 2’s protections for racial minorities in the creation of political maps starts out as an assertion that current events no longer warrant federal intervention but, in the course of a single brief, come around to the idea that white people can’t be fairly represented by Black representatives and that the two races are locked in a battle over a limited number of Congressional seats. In this contest, they argue, the Constitution mandates that the amendments enacted to protect Black citizens after the Civil War must now be interpreted to ignore their plight.

Eviscerating the VRA’s protections for Black voters will not end the use of race in map drawing. Rather, it will green light rampant racial gerrymanders that disadvantage minority groups^[15], including Black people in Louisiana and across the south. These will be race-conscious and racist maps specifically designed to dismantle black political power as well as Democratic seats. The justices can call it colorblind, but both sides know that’s not the case.