In a 6-3 decision along partisan lines, the court rendered ineffective section 2 of the Voting Rights Act, the last remaining powerful provision of the 1965 civil rights law that prevents racial discrimination in voting. Section 2 has long been used to ensure minority voters are treated fairly in redistricting.
“Allowing race to play any part in government decision-making represents a departure from the constitutional rule that applies in almost every other context,” Justice Samuel Alito, a conservative, wrote for the majority opinion. “Compliance with section 2 thus could not justify the state’s use of race-based redistricting here. The state’s attempt to satisfy the middle district’s ruling, although understandable, was an unconstitutional racial gerrymander.”
Gerrymandering against a racial group is bad. OK. Gerrymandering in favour of a racial group is bad. OK by me. For, obviously enough, gerrymandering in favour of whites – say and as an example – would be gerrymandering against blacks, and in favour of blacks against whites.
Positive racial discrimination is still racial discrimination, right?
In a dissenting opinion, Justice Elena Kagan wrote the court had now accomplished a “demolition of the Voting Rights Act”. The court’s decision on Wednesday is the latest in a series that dismantled the law, she wrote, including a major decision in 2013 case, Shelby County v Holder, that nullified another major provision in the law that required places with a history of discrimination to get changes pre-approved by the federal government before they went into effect.
“Under the court’s new view of section 2, a state can, without legal consequence, systematically dilute minority citizens’ voting power,” Kagan wrote in a dissent that was joined by Justices Sonia Sotomayor and Ketanji Brown Jackson. “The majority claims only to be ‘updat[ing]’ our section 2 law, as though through a few technical tweaks. In fact, those ‘updates’ eviscerate the law.
“Today’s decision renders section 2 all but a dead letter,” she continued. “The decision here is about Louisiana’s district 6. But so too it is about Louisiana’s district 2. And so too it is about the many other districts, particularly in the south, that in the last half-century have given minority citizens, and particularly African Americans, a meaningful political voice. After today, those districts exist only on sufferance, and probably not for long.”
Kagan is judging this on the outcome she prefers. Which is not how a constitutional court is supposed to work – rather, to judge on whether the law meets the tests of the constitution. As with Dobbs. Not whether there’s some way we can legalise abortion using the constitution, but does the constitution say the Feds have power over abortion? If the answer to two is no then that’s that – a matter for the States. Racial discrimination is Bad, M’Kay? So, nope, don’t do that.