The Supreme Court puts off restoring the Voting Rights Act's shine

Washington Post

a day ago

Sixty years ago this summer, Congress enacted the nation-transforming Voting Rights Act. Soon, however, Congress and a deferential Supreme Court, by reverse alchemy, turned the gold of the VRA into the lead of today's racial distribution of representation. Last Friday, the Supreme Court delayed, pending reargument next term, deciding a case that could reverse the VRA's tarnishment.
On the final day of the 2024-2025 term, the court issued 404 pages of decisions, concurrences and dissents in six cases. Singularly important, however, were the six pages of Justice Clarence Thomas's dissent from the court's decision not to decide the case concerning the patent racial gerrymandering in Louisiana's redistricting map.
Thomas cites the 'intractable' conflict between the VRA as the court has construed it as a guarantee of the rights of groups, and the Constitution's guarantee of equal protection of the laws for persons. 'Intractable'? No, insoluble.
Approximately one-third of Louisianans are Black. After the 2020 Census, the legislature produced a congressional map with only one 'majority-minority' district. In a complex process of litigation, the state, accepting the court-created principle of racial proportionality, created a second Black-majority district. The state simultaneously engaged in political gerrymandering to protect the seats of three senior Republican members of Congress. The result was unlovely.
The proposed 6th District resembles a 250-mile-long python uncoiling from northwest to southeast Louisiana to 'scoop up' (Thomas's tart phrase) enough Black voters, and exclude enough White ones, to be slightly more than 50 percent Black. Obviously, race predominated in producing this affront to the VRA's original intent.
This is today's judicial morass concerning redistricting: Race-consciousness is mandatory; race as 'predominant' is forbidden. The path to this conundrum is explained in 'Deconstructing the Republic,' the invaluable 2008 book by Anthony A. Peacock of Utah State University:
The original VRA was written to guarantee ballot access. But as subsequently construed by the court and amended by Congress, it confers group rights to 'effective' representation. This entitlement to a portion of political power is determined by racial calculations. The court began and Congress joined the process of conferring on a few minorities (Black, Hispanic, Native American) a group right to elect their preferred representatives, with members of the group presumptively choosing to think as a group rather than as individuals.
Classical liberalism holds that although individuals are divided by opinions and passions, they can be united by shared interests. The uniting is the business of politics. But, Peacock says, the ideology of multiculturalism changed politics by making race and ethnicity preeminent — and inevitably divisive — legal categories. This deconstructed the nation into an archipelago of racial and ethnic constituencies.
This development was congruent with the credo of 20th-century 'behavioral' social science: People do not act freely; they behave predictably because they are conditioned by group membership. By freezing certain racial constituencies into law, the VRA, as (mis)construed and amended, now implicitly endorses a degraded theory of representation: Elected representatives of a government-preferred minority should mechanically serve any desire of the cohesive group.
The Civil Rights Act of 1964, enacted to end the cognizance of race in law, has been bent to opposite purposes. The Voting Rights Act, enacted to eliminate acts of invidious discrimination, has been twisted to engineer racial balance in political processes by taking legal cognizance of, and thereby encouraging, racial as opposed to citizenship identities.
Judicial decisions have held that illegal 'vote dilution' (a phrase not in the 1965 VRA) exists when government-approved minorities could not elect candidates of their 'choice,' which was presumed to be defined racially. The creation of minority-majority electoral districts, drawn to preserve or create racially homogenous enclaves, supposedly serves electoral fairness, defined as facilitating minority office-holding. The VRA became an instrument for turning race and ethnicity into legally determinative categories for claims to proportional allocations of political power.
Doing so, today's VRA encourages a group conflict model of American politics. And the Founders' Constitution for freely thinking individuals becomes a Constitution for thinking-alike victims of a perpetual past.
In a 2003 case concerning race-based university admissions, the court affirmed a 'diversity' exception to the laws of equal protection. An 'effective representation' exception has been discovered in the VRA, although nothing in its 1965 text or legislative history authorized or required this.
The court has somewhat corrected its 2003 higher-education mistake. Next term, it should jettison most of its misbegotten VRA jurisprudence. By affirming the equal protection clause's supremacy over the court's torturous misconstruing of it, and Congress's pernicious amending of it, the court can restore the VRA's golden gleam.