The Voting Rights Act’s Success Is Affirmed by Supreme Court Ruling Against Race-Based Gerrymanders

A former University of Chicago lecturer in constitutional law was, as he often is, loftily disappointed by the failure of others to meet his standards. After last week’s Supreme Court ruling that limits the consideration of race in drawing congressional districts, he said the court was abandoning its role in “ensuring equal participation in our democracy and protecting the rights of minority groups.”President Obama was regretting the court’s understanding of the 1965 Voting Rights Act. Yet his notions of “participation” and “rights” do not fit the following facts.The VRA guarantees minorities equal opportunity “to participate” in electoral politics, and to elect “representatives of their choice.” Approximately one-third of Louisianans are black. After the 2020 Census, litigation ensued when the state legislature produced a congressional map with only one “majority-minority” district.Bowing to a court-created (many years after 1965) principle of racial proportionality, the state drew a second such district. It slithered like a 250-mile-long snake from northwest to southeast Louisiana, meandering in order to corral enough black voters and exclude enough white ones.Such racial arithmetic, which both parties in various states have used for partisan purposes, had become unseemly yet unavoidable. This was because race-conscious redistricting had become mandatory, but using race as a “predominant” factor in redistricting had been ruled unconstitutional three decades ago. Try squaring that circle.Last week, the court held, 6-3, that henceforth its gerrymander jurisprudence will accommodate the obvious: The VRA long ago accomplished its 1965 purpose, the abolition of government measures (e.g., poll taxes and specious “literacy tests”) intended to impede minority voting.Mr. Obama’s words above illustrate the semantic slipperiness of progressives who value the VRA not as it was written and intended, but as it was perverted — inverted, actually — in subsequent decades by Congress and the Supreme Court. The VRA was written to enforce the 15th Amendment’s guarantee of minorities’ access to ballots. It banned practices that, on the basis of race, abridge any individual’s participation in voting. The 1965 VRA neither affirmed nor even intimated a “right” of particular groups to particular electoral outcomes.Decades later, the VRA was amended by Congress, and construed by excessively deferential courts, to guarantee certain favored minorities a political entitlement: the right to elect candidates of their “choice.” The law came to presume (and thereby encourage) groupthink: Government-stereotyped minorities are and should be politically homogenous in their choices.The VRA became a guarantee against “vote dilution,” a phrase that appears nowhere in the 1965 act. The phrase denotes what supposedly occurs when congressional redistricting reduces the likelihood of minorities electing minority representatives. Last week, the court said that henceforth racial gerrymandering will be presumptively unconstitutional unless targeted to remedy specific instances of discrimination. It will not be justified by preventing the “dilution” of a minority’s vote. Drawing districts to achieve partisan advantages, including the protection of incumbents, which Louisiana did, is constitutionally permissible.Dissenting, Justice Elena Kagan said: “It is for the people’s representatives in Congress to decide when the Nation need no longer worry about the dilution of minority voting strength.” But the concept of “dilution” was concocted to serve this sophistry:Illegal “dilution” occurs when congressional districts are drawn that deny certain favored minorities a “right” to “effective” representation. This right is understood as a semi-entitlement to a portion of political power. And representation is defined as “effective” only when the representative is a member of a government-favored minority group.Racial distributions of representation – racially proportionate allocations of political offices – are surely among the things that the Constitution, with its counter-majoritarian aspects (the first words of the First Amendment: “Congress shall make no law …”), and its guarantee of equal protection of the laws, forbids. Limited government means limitations on “the people’s representatives.”The justices’ 6-3 decision on Wednesday will further inflame critics who are more fervid than empirical when they describe the court as composed of two jurisprudentially homogenous factions. Yet legal commentator Sarah Isgur, in her amusingly myth-busting book on the court, “Last Branch Standing,” notes: “In the last twenty years, just over 90 percent of the cases were decided with at least one liberal justice in the majority.”Still, last week’s decision did implicate a stark disagreement over a fundamental principle of political philosophy. One-third of the justices are broadly tolerant of, even welcoming toward, race-conscious government actions intended to engineer particular political and social outcomes. Two-thirds of the justices view such actions with a strongly skeptical constitutional squint.The Washington Post

The Voting Rights Act’s Success Is Affirmed by Supreme Court Ruling Against Race-Based Gerrymanders

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