by Dr. Andy Jackson
Director of the Civitas Center for Public Integrity, John Locke Foundation
During oral arguments over the Voting Rights Act in Merrill v. Milligan recently, U.S. Supreme Court Justice Ketanji Brown Jackson made a fundamental break with tradition on racial protections in the U.S. Constitution and accompanying laws (page 58):
And — and even more than that, I don’t think that the historical record establishes that the founders [of the post-Civil War constitutional amendments] believed that race neutrality or race blindness was required, right?
Justice Jackson’s view is wrong and clears the way for open racial discrimination.
Justice Jackson’s confusion risks a misapplication of the 14th and 15th Amendments to the Constitution and the Voting Rights Act.
Let’s look at a couple of relevant texts. The first is Section 1 of the 15th Amendment to the Constitution:
The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.
Similarly, as Ed Whelan at National Review points out, the 14th Amendment “ensures that states shall not … deny any person the ‘equal protection of the laws,’ irrespective of the person’s race” (emphasis in the original).
Section 2, subsection (a) of the Voting Rights Act (VRA) states:
No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color
So, the Constitution and VRA protect the right of all Americans to vote regardless of race, not with regard specifically to voters being Black. The VRA has usually been used to protect the voting rights of Black Americans, which is because they have traditionally been the victims of attempts to deny them the right to vote. However, using the VRA in a “race-conscious way,” as advocated by Justice Jackson, would preclude recognizing that Blacks (and other minority groups) can be anything other than victims or that Whites can be anything other than perpetrators.
The debate between “race consciousness” versus “race neutral” application of the VRA came to a head with the case of United States v. Ike Brown et al. in 2007. That case was different because Brown and his allies were Black, and their victims were White.
Ike Brown was the chairman of the Noxubee County Democratic Executive Committee in Mississippi. A court complaint from the United States Department of Justice (DOJ) alleged that voters faced “relentless voting-related racial discrimination” under the direction of Brown and his allies in the Noxubee County government. Brown’s campaign against those voters included “excluding them from Democratic caucuses,” acting to “manipulate the voter registration rolls in an unlawful manner,” and prohibiting them from voting in Democratic primary elections even though they were legally entitled to do so.
U.S. District Court Judge Tom Lee ruled against Brown in 2007, writing (pages 102-103):
No one could reasonably argue that an election official’s racially motivated decision to count the votes of black voters while rejecting those of white voters is discrimination that cannot be countenanced under any view of Section 2. In purpose and in effect, that is what has occurred in this case.
The case almost did not make it to court, however. Former DOJ official Hans von Spakovsky reported that lawyers within the organization, animated by the same race consciousness that Justice Jackson espouses, “did not want to investigate, work on, or file” the case. They even “harassed the few career lawyers … who were willing to work on it, simply because the defendants were black.” In Justice Jackson’s world, Brown would have never been taken to court, and he would have been free to continue openly violating the voting rights of some citizens of Noxubee County.
A “race conscious” approach to voting rights would lead to violations, as Alabama Solicitor General Edmund G. Lacour, Jr. made clear in his reply to Justice Jackson (Page 62):
Well, no, Your Honor, if — if their evidence is bad, then you run the risk of replacing a neutral plan with a plan drawn on account of race, which would create its own Section 2 violations. I think a white Republican in Mobile or a black Republican in Mobile, for that matter, who’s gerrymandered into the new District 2 and connected with people on the Georgia border would have a Section 2 claim himself because his vote has been abridged on account of race.
Plaintiffs in the case are seeking to require the use of racial data to draw districts that would not have been drawn using racially neutral criteria. Their goal is to achieve something close to racial proportionality. There are two problems with that approach. First, as Lacour noted, doing so risks creating its own violation of Section 2 of the VRA. Second, Section 2 explicitly denies any requirement for racial proportionality:
Provided, that nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population.
Neither the Constitution nor the Voting Rights Act allows governments to discriminate on the basis of race in the name of stopping discrimination based on race. Justice Jackson’s view should be rejected by the rest of the justices on the Supreme Court.