Voting Rights Act of 1965

• In two cases before the U.S. Supreme Court’s 2023 summer recess, Chief Justice John Roberts wrote majority opinions that involved the use of race.
• In the court’s 5-4 Allen v. Milligan decision, Roberts wrote that states must consider race in some circumstances when drawing congressional districts.
• Though Roberts’ opinions appear at odds, his general disdain for the use of race is not.

Use of race to determine political districts

• At issue in the Alabama case was whether the power of Black voters was diluted by dividing them into districts where white voters dominate.
• Black residents make up about 27% of the state’s population, and voting rights advocates argued that they deserved not one but two political districts.
• Second, if the racial minority is politically cohesive, meaning that its members tend to vote together for the same candidates.
• All three conditions were true in Alabama, and the totality of the circumstances suggested minority voters did not participate equally in the political process in the area.
• “States shouldn’t let race be the primary factor in deciding how to draw boundaries, but it should be a consideration,” Roberts wrote.

The use of race in college admissions

• Roberts had a different view of race and its importance in diversifying college campuses.
• He argued that the Equal Protection Clause of the 14th Amendment – and Title VI of the Civil Rights Act – strictly limited how schools could use race in admissions.
• “College admissions are zero sum, and a benefit provided to some applicants but not to others necessarily advantages the former at the expense of the latter,” Roberts wrote.
• Though Roberts could have used previous U.S. Supreme Court decisions in 1978’s Regents of the University of California v. Bakke or its 2003 Grutter v. Bollinger decision to continue to allow the use of race in college admissions, he did not.

Roberts’ opinions reveal racial ambivalence

• In both circumstances, the use of race worked as a corrective to discriminatory voting laws and college admissions practices.
• In congressional redistricting, race is used to build districts to counter racial bloc voting and de facto residential and ideological segregation.
• In her dissent in the North Carolina affirmative action case, Associate Justice Ketanji Brown Jackson spells out the problem with Roberts’ ambivalence on race.

• For months, legislators, legal scholars and people simply interested in democracy and elections were fixated on a case before the Supreme Court, Moore v. Harper.
• Those following the case, which asked the justices to rule on the “independent state legislature doctrine,” have held their collective breath awaiting the outcome, which could have changed fundamental aspects of U.S. elections and politics.
• State legislatures, unconstrained by state law, could then create aggressively gerrymandered congressional districts, possibly leading to an ever more partisan Congress with accompanying gridlock and policy failures.” We asked Chambers to help readers understand the court’s opinion, issued on June 27, 2023.

What question did the Supreme Court answer in this opinion?

• The court considered whether a state legislature could have the last word, with no review by state courts, regarding gerrymandered congressional districts they created.
• But the question was whether a state legislature could draw whatever congressional districts it wanted without review by state courts under state law.
• At issue was a legal theory called the “independent state legislature doctrine,” which the court considered in a dispute over gerrymandered North Carolina congressional districts.
• In early 2022, North Carolina state courts found the Legislature violated the state constitution when it drew congressional districts favoring Republicans.

Does this decision apply only to partisan gerrymandering by state legislatures?

This case focused on partisan gerrymandering of congressional districts. However, it may apply more generally to rules for congressional elections, such as where, when and how such elections will be run. If the state constitution explains how congressional elections will be run, the state legislature must abide by those provisions.

What happens next in terms of partisan gerrymanders drawn by state legislatures?

• Partisan gerrymanders are subject only to state constitutional and statutory law – the written laws enacted by the legislature.
• In that ruling, the court noted state constitutional and statutory law could be used to stop partisan gerrymandering.
• If a court interprets state law too aggressively in invalidating a redistricting plan, it invades the legislature’s prerogatives.
• However, the Supreme Court provided no guidance in this decision on when state courts have gone too far.

Will this ruling affect the 2024 presidential election?

• Legislatures might have attempted to circumvent state law that defines how presidential electors are chosen.
• Many folks argue such chicanery could never happen, because once presidential electors are chosen on Election Day, then that’s it.

• U.S. President Joe Biden has launched his re-election campaign, and we can expect to hear a lot about the need to protect American democracy from the Donald Trump-led Republicans.
• Now that the former president has been held liable for sexually assaulting and defaming columnist E. Jean Carroll, we might also hear about the need to uphold the rule of law and basic standards of human decency.
• But neither Biden nor the progressives who support him say much about protecting the U.S. Constitution.
• As such, they need to rediscover its pro-democratic dimensions so they can work with the document — and make it work for them.

General welfare, equal protection

• The progressive parts of the U.S. Constitution begin in the preamble, which says that one of its core purposes is to “promote the general welfare” as opposed to private interests.
• They were aimed at building a national citizenship based on “the equal protection of the laws,” and they prohibited the states from denying that protection to any American.
• Taken together, the U.S. Constitution’s general welfare and equal protection clauses enable what founding father John Adams called “a more equal liberty” to advance, however unevenly, throughout American history.
• The 14th Amendment also requires the U.S. government to pay its debts, undermining Republican threats to force a catastrophic national default this summer.

Guaranteeing democracy

• They did so by arguing a “Republican” government could not be too democratic, only to find that the U.S. Supreme Court refused to consider such “purely political” questions.
• That is, they should insist that the “Republican Government” guaranteed by the U.S. Constitution requires basic democratic standards that several GOP-dominated states no longer meet.
• Even by the criteria of ultra-conservative constitutional “originalists,” this argument is straightforward, because the meaning of “a Republican Form of Government” was self-evident in 1787.
• They agreed that republics drew their authority from “we the people,” who made their choices known in periodic elections.

Voting rights

• Citing the guarantee clause, Democrats at the federal level could therefore press states to democratize voting districts and expand voting sites.
• If Congress passed a law to that effect, Biden might even consider using an executive order not just to promote voting rights, but to ensure all citizens have a reasonable chance to vote, even if that means sending the National Guard to polling sites.

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