In Supreme Court Land, Fixing Discrimination Against Black Voters Is The Real Racism

A central grievance motivating today’s conservative legal movement — and the Republican Party more broadly — holds that any measure rectifying the country’s habitual discrimination against minorities actually discriminates against the in-group. 

This is why “black lives matter,” a call to recognize the disproportionate violence and death Black people suffer at the hands of the state, is met with “all lives matter.” It’s why DEI has become the battle cry for rolling back the perpetuation and memorializing of civil rights advancements. It explains why Republicans’ fixation on protecting freedom of speech evaporates as soon as they bump up against speech they don’t like (say, a rally to protest the Trump administration’s authoritarian behavior). Civil liberties are a zero-sum game, this thinking goes, so any protection of minority groups must implicitly harm the majority group. 

That same grievance animated the right-wing justices Wednesday, as they heard a case that could decimate Section 2 of the Voting Rights Act (VRA), which voting rights groups typically use to prove that states are diluting minority voters in a given district to decrease their electoral power. Section 2 is the last weapon in the landmark civil rights legislation that the Roberts Court hasn’t yet destroyed, and has been a bulwark against, largely, red-state legislatures, often in the states that made up the Confederacy, using crafty line drawing to ensure that white voters always have disproportionate power over Black ones to elect the representatives of their choice.

Republicans, including those on the Court, don’t like Section 2, not least because Black voters overwhelmingly vote for Democrats. Suppressing the Black vote is in their direct partisan interest. So to kill the VRA, the right-wing justices, grotesquely, reach for the Reconstruction Amendments to pervert the promise of equal protection into a fatal flaw. In the story they tell, Louisiana’s packing and cracking of Black voters to ensure that around 30 percent of its population only gets to elect one in six of its congressional representatives isn’t racial discrimination. But demanding that the state draw a new map where that third is more represented — perhaps by drawing a second district in which Black voters would constitute a big slice of the voting population — is racial discrimination against white voters.

“Is it okay for a federal court to use a map on the remedial side that intentionally discriminates on the basis of race?” Justice Neil Gorsuch asked. 

His questions during oral argument Wednesday exhibited no concern about the racially discriminatory map Lousiaiana drew in the first place — he was, however, very worried about the remedial map it was forced to accept to give Black voters more power. That, by his standard, was the real discrimination. (All lives matter.)

When the Roberts Court handed down Shelby v. Holder, a 2013 decision that decimated that part of the VRA that ordered regions with histories of racially discriminatory voting practices to get “precleared” before they passed new voting laws, the result was predictable. Red states, many in the old Confederacy, passed a metric ton of new voting restrictions. 

The result in this case, if it goes the way the conservative majority on the Court indicated it would Wednesday, will be the same. 

“If we take Louisiana as one example, every congressional member who is Black was elected from a VRA opportunity district,” Janai Nelson, attorney for the appellants, said, referring to the districts created to enhance minority voting power. “We only have diversity across the south, for example, because of litigation that forced the creation of opportunity districts under the Voting Rights Act. Every [Black] justice in Louisiana has been elected through a VRA opportunity district and nearly all legislative members have been elected from those same districts.” 

We already know what the effects of this final blow against the VRA would be, because we, as a country, lived through it before. It meant the complete exclusion of Black people from the political process. It meant an embarrassing dearth of Black lawmakers. In Louisiana, “no Black person sat in Louisiana’s Legislature from the 1880s until 1967,” per the appellant’s brief. 1967 was two years after the passage of the VRA.

The right-wing justices resisted candidly acknowledging this future and instead opted to pseudo-intellectualize the problem at hand, claiming to be repulsed by “racial discrimination” when race is being taken into account to remedy the theft of Black voting power. 

They likely won’t nullify Section 2 altogether: Justice Brett Kavanaugh was like a doll on a string in his repetition that Louisiana and its allies aren’t seeking to “eliminate” Section 2 or find it unconstitutional; Justice Amy Coney Barrett assured that they’re only seeking a “clarification” of a 40-year precedent, not its overturning. They’ll likely find some procedural-sounding way to neuter the law, perhaps silently eliminating the congressional amendments that got rid of the need to prove that the state was intentionally discriminating with its maps, which is hard to do. 

It’s not an exaggeration to say that the United States was not truly a democracy before the VRA. And Republican opposition to it sprang up immediately, with President Nixon complaining that its preclearance requirements were punitive to the south. Advisers to President Ronald Reagan — including now Chief Justice John Roberts — tried to convince him to veto the amendment that prohibited voting practices that result in racial discrimination, even if you can’t prove the state’s intent.

The right to vote in the United States has never been secure for minority groups. Even now, the Illinois governor warns that President Trump is deploying the military for the express purpose of intimidating voters out of exercising the sacred franchise in the midterm elections. The Supreme Court is doing its own version of that by threatening one of the last protections of our multicultural democracy.