Supreme Court Usurps Congressional Power, Destroys Voting Rights Act, Ignores 15th Amendment
The Supreme Court last week delivered in Callais v. Louisiana a ruling that demolished the landmark 1965 Voting Rights Act, widely characterized as the crown jewel of the civil rights movement for its essential role as the statutory enforcement mechanism for breathing life into the 15th Amendment guarantee of Black voting rights, and its pursuit of racially equal electoral opportunity, a fair chance for representation and democracy. The 15th Amendment declares that a citizen’s right to vote “shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.” The Amendment vests in Congress sweeping authority to pass “appropriate legislation” to enforce it, which it exercised in enacting the historic Voting Rights Act. The Court’s ruling gutted a core part of the statute and will have the effect of excluding people of color from the political process.
Justice Samuel Alito’s 6-3 opinion for the Court in Callais, striking down Louisiana’s congressional map on grounds that the creation of a majority-minority district–designed to provide representation for Black voters– represents an unconstitutional racial gerrymander, and is a striking exercise in judicial usurpation of the lawmaking power of Congress for its rewriting of the text of the Voting Rights Act. Section 2 of the VRA prohibited states from passing laws to “deny or abridge” the right to vote, “on account of race or color.” In 1982, Congress, with the support of President Ronald Reagan, amended the statute, and strengthened its anti-discrimination purpose, after the Supreme Court upheld in a 1980 case that involved the City of Mobile, Alabama’s at-large election system for choosing members of a commission, when it articulated a narrow holding that section 2 of the VRA is not violated unless governmental action is “motivated by a discriminatory purpose.” Unhappy with the judicial creation of proof of discrimination as a standard that would facilitate circumvention of Section 2, Congress overruled the decision by changing the statutory language so that states may not impose any electoral rule that “results in a denial or abridgement” of voting rights on account of race. By replacing “intent” with “results,” Congress provided a standard that could be readily recognized and remedied.
In Callais, however, Justice Alito wholly ignored the fact that Congress had amended the Act as a direct repudiation of the Court’s test and defiantly resurrected the standard that Congress had rejected. In a blistering dissent, Justice Elena Kagan wrote that the ruling leaves the Voting rights Act as “all but a dead letter,” and called out Alito’s offense with a reminder of constitutional fundamentals: Congress writes the laws and the Court’s job is to interpret the law, not rewrite a statute that the Justices do not like. In a nutshell, the Court’s ruling represents a grave blow to racial equality, particularly in the South. Elections scholar, Rick Hasen, has warned: “This decision will bleach the halls of Congress, state legislatures, and local bodies like city councils.” Scholars rightly fear the fastest, and largest, rollback in congressional representation since the end of Reconstruction.
The “intentionality” test will prove nearly impossible to satisfy. Justice Alito seems to have been unable to resist a rather smug prescription for defeating efforts that challenge district drawings on grounds of racial discrimination. Since partisan gerrymandering was upheld by the Court in Rucho v. Common Cause, in 2019, Alito declared in Callais that states are free to gerrymander for partisan advantage. He said, “litigants cannot circumvent Rucho by dressing their political gerrymandering claims in racial garb.” Alito’s cynical advice to legislators eager to maximize their power at the expense of political participation for Black voters, does not easily fit the portrait of Supreme Court Justices who simply call balls and strikes.
The denial of representation to Black voters, for that is what racial gerrymandering amounts to, is an offense to the goals of racial equality and democracy. To be clear, the VRA has never required racial proportionality in drawing voting districts, but just the chance to participate in the shaping of laws and the selection of our representatives. Voting is a right, after all, but racial gerrymandering, engineered to dilute the voting power of people of color, hollows out the right of political citizenship, a right that most Americans believe is central to representative government.