Does Section 2 of the Voting Rights Act, which specifically forbids the creation of racially proportional congressional districts, require states to create congressional districts in equal proportion to the state’s minority population?
If that question seems ridiculous because the answer is obviously “no,” it doesn’t mean that the Left is not willing to raise it. It is exactly what lawyers sympathetic to the Democratic Party argued in front of the Supreme Court on Oct. 15. Fortunately, the six originalist and textualist members of the court seemed unimpressed.
After the 2020 census, Louisiana redrew its congressional map, creating five districts with majorities of Republican voters and one district with a majority of Democrats. Democratic Party activist Press Robinson sued the state, claiming that the new congressional map was racist since only one of the districts had a majority of black voters, whereas the state is nearly a third black.
MAKING HIGHER EDUCATION AFFORDABLE AGAIN
Following a convoluted three-part test from a 40-year-old Supreme Court case, Thornburg v. Gingles, a lower court found that Louisiana had impermissibly “diluted” the votes of black citizens by creating a map in which just 16% of congressional seats were majority black, not 33%.
Section 2 of the Voting Rights Act of 1965, as amended in 1982, forbids any “standard, practice, or procedure” that “results in a denial or abridgment of the right of any citizen of the United States to vote on account of race or color.” The statute clarifies that a state policy has harmed a citizen’s right to vote when a “protected class” of minority voters has “less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.”
Democrats have long argued, and persuaded courts, that when the share of majority-minority congressional districts fails to match the share of minority residents in a state, it constitutes discrimination under Section 2. Yet Section 2 itself plainly states, “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 statute explicitly rejects racial gerrymandering.
But as Deputy Solicitor General Hashim Mooppan noted in oral argument on Oct. 15, that is what the Democratic Party wants Section 2 to do.
“If these were white Democrats, there’s no reason to think they would have a second district,” Mooppan argued. “What is happening here is their argument is because these Democrats happen to be black, they get a second district. If they were all white, we all agree they wouldn’t. That is literally the definition of race subordinating traditional principles. … The reason why Section 2, as it’s being construed in Gingles, is a problem is it is saying that you have to create a district for black Democrats that you would never create for white Democrats in a Republican state. It’s essentially being used as a reverse partisan gerrymander on purely racial grounds.”
Democrats offered no evidence that Louisiana’s policies intentionally discriminated against black voters. Even Justice Ketanji Brown Jackson was at pains to note that other civil rights laws, specifically the Americans with Disabilities Act, require no showing of intentional discrimination, only discrimination in effect.
But Louisiana’s lawyer had a quick response to Jackson’s effort to compare the two. “The difference is that the remedy under the ADA and other antidiscrimination laws is not stereotyping,” Edward Greim explained, to which Jackson could only respond, “I take your point. I take your point.”
THE DAWN OF THE TRUMP NUCLEAR RENAISSANCE
The Supreme Court has become increasingly skeptical of race-based policies such as the racial gerrymandering Democrats seek in Louisiana. In 2013, in Shelby County v. Holder, the Supreme Court struck down Section 4(b) of the Voting Rights Act because it relied on decades-old data and was no longer suitably “responsive to current needs.” More recently, in Students for Fair Admissions v. Harvard, the court held that race-based affirmative action in college admissions violates the equal protection clause of the 14th Amendment. This Supreme Court majority is properly unwilling to endorse elaborate three-part tests designed to obfuscate race-based outcomes.
The court’s Republican-appointed majority appears ready to remind lower courts, and Democratic activists, that the Constitution forbids racial favoritism, even when cloaked in the language of “equity.” Section 2 was written to protect every citizen’s right to vote, not to guarantee proportional racial representation in Congress. Turning it into a mandate for racial gerrymandering would not only twist the plain text of the law but would also erode the principle of colorblind equality at the heart of the 14th and 15th amendments.
