The pursuit of extra-constitutional natural law theories makes for strange bedfellows.
The Supreme Court has replaced the Constitution’s principle of the individual’s right to vote with a right to equal representation for minority groups. This post investigates the central moments of this shift in doctrine and practice.
The Voting Rights Act of 1965 was arguably the most successful piece of federal legislation of the twentieth century. It was also one of the most principled, finally providing African Americans voting rights they were originally promised by the Fifteenth Amendment almost 100 years earlier.
Following passage of the VRA black voter registration rates in southern states, where voting discrimination was most pronounced, skyrocketed. Between 1965 and 1968 black registration rates went up almost tenfold in Mississippi, threefold in Alabama, and twofold in Louisiana and Georgia. South Carolina and Virginia also experienced large increases in black voter registration. The result was a transformation in southern politics. No longer were bald appeals to racism politically profitable. Black voters were now a force to be reckoned with in the South and soon so too were African American representatives. American politics would be changed forever as a result of these developments. They were all highly defensible as a matter of constitutional principle and political practice.
But in 1969 things changed. That year the United States Supreme Court, in Allen v. State Board of Elections, expanded the mission of the VRA from protecting the right to vote to protecting a right to representation for African Americans. As understandable as the outcome was in Allen—the Mississippi legislature appeared to be trying to dilute the votes of African Americans by submerging them in at-large elections—it revolutionized the purpose of the VRA. Allen gave birth to what scholars refer to as “second generation” voting rights; the right to an “undiluted” vote or to representation for legally recognized minority groups.
In the reapportionment cases of the 1960s the Court had mandated the “one person, one vote” rule in electoral redistricting. State and congressional electoral districts had to be equal in population, otherwise they ran afoul of the Constitution. This novel constitutional mandate was necessary, the Court informed us, in order to insure that citizens’ votes were not diluted by situating them in electoral districts that were smaller in size than other electoral districts. Citizens had a right to fair or “effective” representation the Court declared. Equal population in state and congressional electoral districts was identified with equal representation.
In Allen the Court incorporated the reapportionment cases’ principle of fair or effective representation into the VRA: African Americans were entitled to their own undiluted or effective votes. But this introduced an intractable problem that the Court to date has been unable to resolve. How were judges or state legislatures to provide for equal racial representation? Providing equal numerical representation was a fairly simple task. Simply divide up the residents of a state into equal districts. But how was equal representation between racial groups to be established?
The answer came in a series of cases through the 1970s and 1980s. There the Supreme Court made it clear that the model of “fair” representation to be followed in the case of the VRA was one of proportional representation based on race. Minorities were entitled to representation in rough proportion to their numbers in the relevant population, at least where they were sizeable, compact, and cohesive enough that they could be made a majority in a single-member district. So the Court said in its 1986 decision, Thornburg v. Gingles, the first high court decision to interpret the new “results” test written into section 2 of the VRA.
In 1975 Congress added “language minorities” as protected classes under the VRA. Not only were African Americans protected by the federal law, so too now were Hispanics, American Indians, Alaskan Natives, and Asian Americans. In 1982 Congress went even further, amending section 2 of the VRA to include a results test for vote discrimination under the act. This translated into a right to proportional representation based on race, the Gingles Court suggested, since any redistricting plan that did not provide this would be deemed to have a discriminatory result.
Both the section 2 results test and the new mandate for race-based redistricting that the Court and the federal Department of Justice, which administered the act, deemed the VRA required seemed on their face unconstitutional. The Supreme Court has consistently interpreted both the Fourteenth and the Fifteenth Amendments to prohibit only intentional or purposeful discrimination. Yet section 2, which derived its constitutional authority from these amendments, went beyond this to prohibit discriminatory results, something Congress had no constitutional warrant to do. Moreover, the constitutional laws of equal protection barred race classifications save in exceedingly rare circumstances such as those involving life and death national security decisions. Yet the VRA, as interpreted by both the Court and the DOJ, required these as a matter of course.
The conflict between the VRA and the Constitution came to a head in the 1990s. During that decade a host of cases were brought to the Supremes challenging the race-based redistricting states had to engage in in order to comply with section 5 of the VRA. States covered by section 5 had to get “preclearance” from the DOJ before their redistricting plans could be implemented. In the early 1990s the Justice Department had imposed on states covered by section 5 what the Court would later term “max-black” redistricting plans—redistricting proposals that maximized the number of majority-minority congressional districts.
In Shaw v. Reno (1993) two such districts were challenged as unconstitutional racial gerrymanders. Both districts were utterly bizarre in their shape, so much so that Justice O’Connor, writing for the Court, described them as bearing “an uncomfortable resemblance to political apartheid.” In Shaw a majority found the two challenged districts presumptively unconstitutional.
In a 1995 case involving a similar Shaw-like challenge to race-based redistricting in Georgia the Court held that any time race was the “predominant factor” in a redistricting plan it would be constitutionally suspect. As Justice Thomas pointed out, however, states could not possibly comply with the VRA, which required racial minority districts, without race being the predominant factor in the drawing of such districts.
The VRA had now come full circle. The legal rule imported from the reapportionment cases into the act was now in apparent violation of the very laws of equal protection from which it originated. This, however, was to be expected. Second generation voting rights were the antithesis of first generation voting rights. The original VRA was based on an individual rights understanding of the Constitution where race was sought to be made irrelevant in American politics. Second generation voting rights, by contrast, were group rights limited to official minorities recognized in affirmative action policy, requiring the very cognizance of race first generation voting rights sought to extinguish.
Indeed, few federal initiatives could be more illiberal or divisive than today’s VRA. What began as an initiative that did more to fortify American republicanism in the 1960s has culminated today in one that does more to threaten that republicanism than virtually any other law. The Founders’ republicanism, which sought to protect individual rights, eliminate factious strife, and institute a uniform concept of American citizenship, has been undermined by a race identity, multiculturalist republicanism that converts partisan political struggles into inflammatory racial conflagrations.
Just look at what happened in Texas in the early 2000s. Democrats accused Republicans of racism in their 2003 congressional redistricting proposal for failing to provide African Americans and Hispanics their appropriate allocation of race-based electoral districts under the VRA. Yet the federal court that heard the complaints of these groups dismissed them all, pointing out what was obvious to everyone, Republicans and Democrats alike: that the redistricting plan embraced by the Republicans was adopted not because of race prejudice but because of partisan politics. Yet it was the VRA that had allowed Democrats to play the race card. When the Texas dispute got to the Supreme Court in 2006 the complainants contended that a white Democrat, Martin Frost, was protected by the VRA because minorities made up a part of his electorate. Although the Court denied this claim it left the door open to similar claims by non-minority politicians in future.
These are the absurd lengths to which today’s VRA has taken American politics. Even white politicians now claim entitlements under the act! The interest-group liberalism that defines the modern programmatic liberal state under the VRA now embraces a racial class warfare vision of America where ethnic and racial clientele groups are invited to exaggerate claims of racially differential treatment for the obvious political gains such exaggerations provide. Can anyone seriously argue this is good for American republicanism?
Today’s section 5 and the section 2 results test of the VRA are unconstitutional. The sooner Americans realize this and the sooner the Supreme Court abandons its multiculturalist rationalism, where for over forty years now it has attempted in the name of racial “fairness” to divide Americans into a balkanized archipelago of what Justices Thomas and Scalia have referred to as race-based “political homelands,” the better off will be American republicanism.