Voters Can Be Disenfranchised Now
For the conservative editor and columnist James Jackson Kilpatrick, the Supreme Court decision outlawing school segregation was an atrocity. Brown v. Board of Education, he wrote in the 1950s, was a “revolutionary act by a judicial junta which simply seized power.” He warned in 1963 that the passage of the 1964 Civil Rights Act would destroy “the whole basis of individual liberty.” And in a 1965 National Review cover story, he argued that in order to “give the Negro the vote,” the Voting Rights Act would repeal the Constitution.
Kilpatrick did not hide the basis of his beliefs: In an article that was spiked after the 1963 Birmingham Baptist Church bombing, titled “The Hell He Is Equal,” he insisted that “the Negro race, as a race, is in fact an inferior race.”
As the historian Nancy MacLean wrote in Freedom Is Not Enough, by the 1970s, this segregationist had refashioned himself as an opponent of racial discrimination, a champion of color-blindness. Liberal egalitarians supporting race-conscious remedies, he argued, were “worse racists—much worse racists—than the old Southern bigots.” His transformation was so complete, he joked, that he was like the convert who “became more Catholic than the Pope.”
In fact, Kilpatrick’s conversion was no conversion at all. To understand it is to understand the Roberts Court’s decision today in Louisiana v. Callais. The decision purports to uphold Section 2 of the Voting Rights Act, which prohibits racial discrimination in voting, but effectively nullifies it, ruling that a Louisiana redistricting map that created two majority-Black districts out of six, in a state whose population is one-third Black, was an “unconstitutional racial gerrymander.” The majority opinion uses procedural language to obscure what its rewriting of the VRA will allow lawmakers to do: engage in racial discrimination in drawing political districts as long as they say they are doing so for a partisan purpose rather than a racist one—as if the results would not be identical.
In states with large Black populations that remain under Republican control—half of the Black American population resides in the South—lawmakers will now be able to draw districts that dilute Black residents’ voting power. In his opinion for the right-wing majority, Justice Samuel Alito wrote that “in considering the constitutionality of a districting scheme, courts must treat partisan advantage like any other race-neutral aim: a constitutionally permissible criterion that States may rely on as desired.” The Court’s decision is consonant with the philosophy, articulated by Kilpatrick in his earlier days, that the state is oppressive when it interferes with the right to discriminate, and respects liberty when it allows discrimination. And the decision fits just as well with Kilpatrick’s later spin on that philosophy: Attempts to ban racial discrimination are themselves discriminatory—against white people.
What Kilpatrick wanted, and what the Roberts Court is making possible, is a country where white people can maintain their political dominance at the expense of Americans who are not white. The anticaste provisions of the Reconstruction amendments, intended by their authors to reverse the “horrid blasphemy” that America was a white man’s country, are being inverted to defend that dominance. This is not the color-blindness of Martin Luther King Jr., but what the scholar Ian Haney López has called “reactionary colorblindness,” the purpose of which is to maintain racial hierarchy through superficially neutral means. It takes the view that the Constitution’s “color-blindness” renders any attempt to remedy anti-Black racism unconstitutional, because by definition that would involve making racial distinctions. Similarly, the ruling in this case does not explicitly overturn the VRA’s ban on racial discrimination in voting so much as rewrite it to allow such discrimination.
In 2022, Louisiana lawmakers passed a redistricting plan that limited Black voters to a single congressional district out of six (“packing” them into a majority district and “cracking” the remaining Black population into other districts to limit their influence). These practices go back to Reconstruction, when Black men first won the vote and white-supremacist Democrats sought to limit or annihilate their political influence. Civil-rights organizations sued Louisiana over the map and won on the basis that it violated the VRA’s requirement to ensure that minority voters have equal opportunity to elect a candidate of their choosing. Louisiana was ordered to create a new Black-majority district, which it did. But then Louisiana was sued again, this time by a group arguing that the new map was unconstitutional because it sorted voters by race. This is the case that went before the U.S. Supreme Court.
In his opinion, Alito argued that “social change has occurred throughout the country and particularly in the South,” suggesting that racial discrimination is a thing of the past. (This ignores plenty of contemporary evidence to the contrary—including the fact that the president who appointed half of the Callais majority has called Somali immigrants “garbage.”) Since the Roberts Court began dismantling the VRA with 2013’s Shelby County v. Holder ruling, the racial turnout gap has increased.
It is true that—thanks in large part to the protections that the Roberts Court is carefully dismantling—Americans experience less overt discrimination than they once did. But the obvious flaw in Alito’s logic was revealed when he defended the gerrymander as partisan and not racial by pointing out that most Black people support Democrats, “because race and politics are so intertwined.”
In other words: Discriminating against Black voters is okay because they vote for Democrats. Many Democrats in the 19th century, when Black people overwhelmingly voted Republican, would have enthusiastically agreed with Alito’s assessment. But if you apply Alito’s logic to those white-supremacist Democrats, they weren’t racist either. They just, you know, wanted to win elections or something, and Black people were in the way. The fact that discriminating against Black voters would give Republicans an advantage today is not exculpatory; it only establishes a motive for discrimination.
Drawing a different map that did not disenfranchise Black voters, as a lower court had ordered, would itself be an “unconstitutional racial gerrymander,” Alito concluded. Trying to disenfranchise Black voters isn’t racist; preventing Louisiana from disenfranchising Black voters is racist.
Erring in perception is one thing. But this ruling ignores the will of Congress, which in its 1982 reauthorization of the Voting Rights Act stated that voting provisions that had the purpose or effect of discriminating against minority voters were illegal. Alito seemed to contradict this entirely when he wrote that the VRA “imposes liability only when the evidence supports a strong inference that the State intentionally drew its districts to afford minority voters less opportunity because of their race.”
Congress expressly banned rules and policies that had discriminatory effects, not just those that were explicitly discriminatory in intent, because of a Supreme Court ruling in a 1980 case, City of Mobile v. Bolden, which revealed that the VRA was allowing officials to get away with discriminating as long as they were careful about doing so. John Roberts, then a young lawyer in the Reagan Justice Department, opposed the change, arguing that it would provide a basis for “the most intrusive interference imaginable”—by which he meant the government’s ability to interfere with racial discrimination, not racial discrimination itself.
In her dissent in Callais, Justice Elena Kagan referred back to that case, arguing that the VRA was supposed to be the “corrective” to superficially race-neutral devices that in effect “prevented Black citizens from casting ballots or ensured that their votes would count for next to nothing.” When the Court construed the law “too narrowly—insisting that a person suing under Section 2 had to prove discriminatory intent—Congress amended the law so that it turned solely on discriminatory effects.”
Congress had specifically wanted to close the loophole that the Roberts Court has now pried back open to destroy the VRA almost entirely. The decision does not simply turn the clock back to 1980. It’s worse than that: Many Republican lawmakers may interpret the decision as permission to limit the voting power of troublesome minority voters. For all Alito’s moralizing about the risk of the VRA being “cynically used as a tool for advancing a partisan end,” that is exactly what he and the other five right-wing justices are doing. Shortly after the ruling, Trump’s former campaign manager Brad Parscale crowed on X that “if states are aggressive, we could see a healthy majority in the House perpetually.”
Although Alito worked to hide the breadth of his own opinion, Justice Clarence Thomas was far more explicit in his concurrence. Thomas reiterated his view that the VRA’s districting provisions were “repugnant” to a “colorblind constitution.” An all-white Congress entering office on the success of “partisan” gerrymandering would not be anathema to this “colorblind” Constitution.
[Read: John Roberts’s dream is finally coming true]
What we can expect in the aftermath of this ruling is for more Republican-controlled states to implement discriminatory maps and call them partisan so they can pass legal muster. In practical terms, this will likely mean fewer nonwhite representatives in Congress. Diminishing the power of minority voters may also allow the Republican Party to continue on its path from reactionary color-blindness to more overt racism, safe in the assumption that it will not have to answer to constituents who oppose such racism because they are its targets. There is little risk in attacking people who lack the power to remove you from office.
Alito wrote of the VRA being “perverted” for partisan purposes, but I can’t think of a greater perversion of the VRA than concluding that it is acceptable for white people to try to disenfranchise Black voters for political advantage. It defeats the entire purpose for which the VRA was adopted, which was to end the deliberate and systematic disenfranchisement of Black people then prevalent throughout the United States, and to prevent such racial discrimination from ever occurring against anyone.
The Roberts Court is creating a world in which the federal government does not interfere with the right of white Americans to dominate those they see as their lessers; as Kilpatrick once observed, that is the “whole basis” of their cramped vision of liberty. They can call this color-blindness all they like, but we can see what it really is.