An End to the Rights Revolution?

The Supreme Court heard arguments last week in an election case (Louisiana v. Callais) that will decide how far the federal courts can go in requiring state legislatures to consider race in drawing congressional-district lines. At issue is Section 2 of the Voting Rights Act (VRA), which prohibits voting practices that discriminate on the basis of race or membership in a language-majority group. The federal courts have cited the VRA as a basis for intervening in districting disputes to protect the interests of minority voters.

Democrats, civil-rights leaders, and their allies have claimed that a decision by the Court to eliminate race-based districting will “gut” the Voting Rights Act and thereby deprive minorities of long-standing legal protections. In truth, it will do nothing of the kind. Nevertheless, such a decision will have important consequences.

In the first place, a race-neutral decision will return the VRA to its original purpose, which was to protect access to the ballot box, especially for blacks living in previously segregated states, not to address districting issues and the like. It was a voting-rights act after all, not a congressional- or legislative- districting act. In addition, it will place all voters on an equal footing by eliminating special districts and “set-asides” for black voters, almost all of whom cast ballots for Democrats, a fact that introduces a partisan bias into the VRA that undermines its legitimacy among Republicans and independents.  

Finally, a decision to ban the factoring of race into congressional districting may bring to an end a decades-long experiment in preferences and set-asides never envisioned by the architects of the civil-rights revolution. Preferences, quotas, and set-asides of various kinds have accentuated divisions in American life when the original goal of the Civil Rights and Voting Rights Acts was to overcome them. The Court’s decision two years ago to ban racial preferences in college admissions, combined with the Trump administration’s assault on discrimination, quotas, and “Diversity, Equity, and Inclusion (DEI),” has pushed what remains of the DEI regime into a near-terminal decline. A similar decision by the Court in this case will leave proponents of DEI with few avenues left by which to advance their agenda.