The Fifteenth Amendment to the Constitution, passed in the aftermath of the Civil War, said that voting could not be abridged because of race and that Congress could enforce the Amendment with “appropriate legislation.” This constitutional command soon became a dead letter in much of the country as Jim Crow laws took effect. Black voter registrations in the South were often less than ten percent of the eligible voters. It took a hundred years for the Fifteenth Amendment’s enforcement, which only came with the 1965 Voting Rights Act. As a result of its passage, minority voting rates increased dramatically.
Although the Voting Rights Act has been a success, the Supreme Court in three decisions over the last twelve years has weakened, some would say eviscerated, the Act. The last of these, Louisiana v. Callais, was decided a week ago. A third of Louisiana’s population is Black and yet, the congressional map had only one majority Black district out of six. The Voting Rights Act explicitly said that in determining violations the number of elected minority representatives could be considered. The Act is violated if Black or other minority voters “have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. The extent to which members of a protected class have been elected to office in the State or political subdivision is one circumstance which may be considered: Provided, That nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population.”
The Voting Rights Act had been widely interpreted to mean that the so-called majority minority districts should roughly mirror the proportion of a minority’s population in the state. A Louisiana civil rights group sued the state saying that the Act required two majority Black districts in the state. A federal judge agreed, and a new districting map was drawn with two majority minority districts. Louisiana now has two Black Representatives in Congress. This led to another suit, this one by a “non-African American,” contending that the new configuration illegally relied on race and discriminated against whites.
The Supreme Court, in a 6-3 decision split along the usual ideological lines, agreed first that the earlier map with only one majority Black district violated the Voting Rights Act only if it was drawn to “intentionally disadvantage” Black voters, and the evidence did not show that. Moreover, the opinion by the Court’s most conservative Justice Sam Alito said that the new Louisiana map giving two majority minority districts was illegal because the map was drawn to discriminate on the basis of race—the white race in this case.
This recent decision is coupled with a 5-4, 2019 decision in which the Supreme Court held that it would not interfere with partisan gerrymandering. The 5-4, 2019 decision Rucho v. Common Cause, written by Chief Justice Roberts, recognized that “partisan gerrymandering” may be “incompatible with democratic principles” but that “partisan gerrymandering claims present political questions beyond the reach of the federal courts [Emphasis added].”
Thus, a state cannot gerrymander to racially discriminate, but a state can gerrymander for partisan purposes. Of course, there is often a strong overlap between race and party. Southern Black people vote heavily Democratic. However, these two cases taken together find that a state can gerrymander to disadvantage a political party even if the result also means a minority group is disadvantaged as the result of the partisan gerrymandering. Got that?!?! And lawyers wonder why people don’t like lawyers.
I don’t plan to go through the reasoning in Callais but only mention the likely result. There will be increased partisan gerrymandering giving more seats to Republicans. This will be legal as long as the Republican legislatures stay away from any discussion of race in enacting the new districting lines, and I assume that they are smart enough to control their speech. The Supreme Court has now told us that creating majority Republican districts is legal even if the unintended consequences are that it creates more majority white districts.
The estimates vary as to how many seats will switch from Democrat to Republican. The estimates also vary as to how quicky this will occur since at least some states that might want to change their districts may not be able to do it in time for this year’s mid-term elections. But estimates are that from a dozen to more than two dozen seats may switch from blue to red because of Louisiana v. Callais. As a result of the Supreme Court decision Republicans will gain seats in Congress. Because of the ruling, Congress will have fewer Black members. That last consequence, of course, will be “unintentional.”
