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Once again, the Supreme Court’s conservatives put their thumbs on the scale for Republicans. And once again, they’re very mad that people noticed.
Not content to undo civil rights and destroy the Court’s credibility, they’re racing to ensure that Republicans can redraw House districts even as voting is already underway. And if anyone points out their flagrant partisanship and clanging hypocrisy, they scream bloody murder, even — especially! — if the person pointing the finger is one of their fellow justices.
Undoing the VRA
Last Wednesday, the Supreme Court effectively killed the Voting Rights Act of 1965. The 6-3 opinion in Louisiana v. Callais was the culmination of a decades-long conservative project to dilute the voting power of Black Americans, and it set off a mad scramble in red states to erase majority-Black districts before the November election.
The original VRA had two central pillars. Section 5 required states with a history of racial discrimination to get federal approval before changing their voting laws. In 2013, the Supreme Court gutted the preclearance requirement in Shelby County v. Holder. With confident condescension, Chief Justice Roberts assured us that those Jim Crow-era safeguards were no longer necessary, since America had basically solved racism. And anyway, Roberts assured us that Section 2, which allowed minority voters to challenge electoral maps that diluted their voting power, was “permanent” and “applies nationwide.” The very reason we didn’t need Section 5 anymore, he said, was because Section 2 had been so successful at vindicating the rights of minority voters.
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In fact, Section 5 of the VRA was critical to protecting ballot access, and the Court’s decision in Shelby County unleashed an immediate wave of voter suppression laws designed to depress minority voting. But Section 2 did guarantee at least some Black representation, thanks to a Supreme Court case called Thornburg v. Gingles. In 1986, the Court held that electoral maps designed to ensure that Black voters could never elect the candidate of their choice violated Section 2, and that plaintiffs didn’t have to prove discriminatory intent — just discriminatory effect.
Districts in which minority voters could elect representatives responsive to the needs of their communities became known as Gingles districts. And since minorities vote overwhelmingly for Democrats, the districts served as a major impediment to Republican gerrymandering in states with large numbers of Black voters. Indeed, Callais involved a challenge to Louisiana’s two majority-Black congressional districts.
Writing for the majority in Callais, Justice Alito purported to strike a blow against discrimination. In his telling, the creation of majority-Black Gingles districts is racist against white people because it stops them from enacting partisan gerrymanders. From here on out, Black voters will have to prove that Republicans intentionally discriminated against them as minorities, not as Democrats. This effectively zeroes out the language of the VRA that says the relevant metric is the effect of the legislation, not the subjective intent of the legislators. And because the Callais opinion is rooted in the Constitution’s 15th Amendment, there’s no way for Congress to reinstate the provision by statute.