Turning Civil Rights Inside Out

In Louisiana v. Callais, the Roberts Court has continued its war on civil rights in the name of civil rights. The cynicism of the 6-3 majority decision in Callais is staggering. According to the majority decision by Justice Samuel Alito, the long-standing interpretation of the 1965 Voting Rights Act, requiring minorities to have opportunities to have representation in rough proportion to their population, has been overtaken by events.

What has changed? Nothing, except Alito’s ability to cobble together a majority based on his disingenuous claim that this ruling is merely an “update.” As recently as the Court’s 2023 ruling in Allen v. Milligan, Justices John Roberts and Brett Kavanaugh voted to uphold a lower-court order requiring an additional majority-minority district in Alabama. This was in line with an earlier precedent in the Court’s 1986 ruling in Thornburg v. Gingles, which overturned a North Carolina districting plan on the ground that it diluted Black voting strength.

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The Wall Street Journal, in a deeply cynical editorial titled “A Victory for Voting Rights at the Supreme Court,” congratulated Alito on his ploy. “Justice Alito’s ‘update’ on Gingles tiptoes around those two precedents to get those votes [of Kavanaugh and Roberts],” the Journal wrote.

John Roberts has long sought to dilute Black voting strength, first as a staffer in the Reagan administration and then in prior Court rulings eviscerating the Voting Rights Act, notably in the 2013 case Shelby County v. Holder, which gutted the preclearance provisions of the Voting Rights Act for jurisdictions with a history of discrimination. As Justice Elena Kagan wrote in her scathing dissent, “Today’s ruling is part of a set: For over a decade, this Court has had its sights set on the Voting Rights Act.”

Roberts’s claim, echoed by Alito in Callais, is that so much progress has been made on race that the Constitution no longer permits race-conscious remedies. But if that is the case, it is mainly thanks to the civil rights laws that the Court is now gutting.

The decision is especially cynical taken in tandem with the Court’s 2019 ruling in Rucho v. Common Cause that gerrymandering for partisan purposes is perfectly legal. With the Callais decision, Republican legislatures can now destroy majority-minority districts held by Black Democrats, and thus accomplish both racist and partisan objectives. And if anyone challenges the racial consequences, the sponsors can say that their goals were “merely” partisan.

What now?

There are currently 63 African American members of the House, or about 14 percent of House seats. That almost precisely mirrors the Black percentage of the U.S. population, which is 14.4 percent, or 15.2 percent counting African Americans who also identify as members of another group.

While as many as 19 seats in the Deep South and border states are at risk, North Carolina, Texas, and Mississippi have already had their primaries, and Alabama and Georgia are coming up too soon to stop. In Louisiana, Gov. Jeff Landry (R) announced Thursday that he was suspending the primary election scheduled for May 16—even though about 100,000 mail ballots have already been mailed and early voting is slated to begin Saturday. This is illegal under Louisiana law, and Democrats have already filed suit. A new map would wipe out one or both of the majority-minority districts held by Democrats; the second majority-minority district was the subject of the Callais lawsuit.

The likely number of Black Democratic House seats at risk in 2026 is probably around ten. At least ten more could be at risk in 2028. But if Republicans play too cute and dilute the Black or Hispanic electorate too much, other GOP seats could be at risk, as may well be the case in Texas and Florida.

With the Voting Rights Act no longer applying to racial gerrymandering, some critics have raised the risk of Democrats trying to play this same game. Richard Hasen of the UCLA Law School has speculated that in California, where Democrats have already engaged in fierce partisan gerrymandering, Democrats may also be tempted to spread Black voters into more districts in order to elect more Democrats. This strikes me as possible but improbable. If Democrats imitated Republicans in reducing the number of Black-dominated districts, there would be hell to pay with the Democrats ’ most loyal voting constituency.

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It should be added, however, that Rep. Hakeem Jeffries (D-NY), the Democratic House leader, has said that “all options are on the table” for redistricting. A maximalist Democratic Party could fully neutralize the Republican advantage from Callais by gerrymandering blue states.

The Supreme Court’s action in Callais needs to be seen as part of a larger invocation of civil rights to dismantle civil rights. Though Alito, like Roberts before him, claims that race-specific remedies are no longer needed because America has changed, he ignored the deeper history and the role of hard-won civil rights laws, now under assault, in achieving such change as did occur.

Between 1901, when George Henry White of North Carolina, the last Black member of Congress from the aborted Reconstruction era, left the House, and the election of Oscar De Priest representing the South Side of Chicago in 1928, the number of Blacks in Congress was zero. As late as 1967, two years after enactment of the Voting Rights Act, there were just six African Americans in Congress, none from the Deep South.

The court’s overturning of affirmative action in Callais and the administration’s attack on “wokeism” and DEI as the basis for firing distinguished Black senior military and other officials on the bogus premise that they had been racial preference hires are all of a piece. This is pure racism masquerading as civil rights.

The post Turning Civil Rights Inside Out appeared first on The American Prospect.