Richard L. Hasen writes:

Wednesday’s 6–3 party-line decision in Louisiana v. Callais will go down in history as one of the most pernicious and damaging Supreme Court decisions of the last century. All six Republican-appointed justices on the court signed onto Justice Samuel Alito’s opinion gutting what remained of the Voting Rights Act protections for minority voters, while pretending they were merely making technical tweaks to the act.

This decision will bleach the halls of Congress, state legislatures, and local bodies like city councils, by ending the protections of Section 2 of the act, which had provided a pathway to assure that voters of color would have some rudimentary fair representation. It’s the culmination of the life’s work of Chief Justice John Roberts and Samuel Alito, who have shown persistent resistance to the idea of the United States as a multiracial democracy, and a brazen willingness to reject Congress’ judgment that fair representation for minority voters sometimes requires race-conscious legislation. It gives the green light to further partisan gerrymandering. It protects Alito’s core constituency: aggrieved white Republican voters. It’s a disaster for American democracy.

To understand the importance of what America lost in Callais, we have to go back to a bit of history. After the Civil War, Congress passed the Reconstruction Amendments—the 13^th, abolishing slavery; the 14^th, requiring that states, among other things, not deny persons equal protection of the laws; and the 15^th, barring racial discrimination in voting. Despite these amendments, racial discrimination was rampant in the early 20^th century, and in the American South, Black citizens were consistently denied the opportunity to vote. In 1965, Congress passed the Voting Rights Act, which provided enough protection to vastly increase the opportunities for minority voters to be able to register and vote.

But the initial VRA did not deal with other problems of minority political representation, including how voters elect members of legislative bodies like city councils, state legislatures, or Congress. When there were more white than minority voters in an area, and the two groups preferred different candidates, white voters were often able to elect all or most of the members of these bodies. At first, the Supreme Court policed these discriminatory plans under the 14^th and 15^th amendments. But in 1980’s City of Mobile v. Bolden, the court said that in order to win one of these “vote dilution” claims under the Constitution, plaintiffs must prove that the plans for electing representatives were intended to dilute the power of minority voters.

Congress responded boldly to that ruling—it rewrote Section 2 of the VRA to allow minority voters to say that plans that had a racially discriminatory effect were vote dilution. And as it was doing this, John Roberts was a young Department of Justice lawyer in the Reagan White House who spearheaded the effort to scuttle a stronger Section 2 in Congress. He failed. The new Section 2 made clear that Congress wanted to increase minority representation and alleviate the burden on voters to win these cases by eliminating an intent requirement. [Continue reading…]