How the Supreme Court’s ruling will devastate Black representation | Opinion

Constitutional amendments that were adopted to protect the civil rights of Black individuals were used by the Supreme Court to deal a devastating blow to voting rights for people of color last month.

The simple reality is that the Supreme Court’s decision in Louisiana v. Callais, on April 29, will mean the greatest loss of Black representatives in Congress and state legislatures since the end of Reconstruction.

The Constitution, as drafted and ratified in 1787, had no equal protection clause. This is not surprising because the document had several provisions protecting the rights of owners of enslaved people and none protecting minorities or women. After the Civil War, the Thirteenth Amendment was adopted to abolish slavery. It was quickly realized, however, that this was not enough, as southern states rapidly adopted laws depriving Black individuals of all political and civil rights.

In 1868, the Fourteenth Amendment was added to the Constitution to limit what state and local governments could do. Section 1 of the Fourteenth Amendment includes a provision that no state shall deny any person equal protection of the laws. Section 5 empowers Congress to adopt laws to enforce the protections of the amendment.

No one disputes that these provisions were meant to specifically protect Black people from discrimination, in part by giving Congress broad authority to adopt legislation to carry out the amendment’s purposes.

In 1870, the Fifteenth Amendment was ratified. It mandates that the right to vote cannot be infringed on account of race. It, too, has a provision that grants Congress the power to adopt laws to enforce the amendment.

Unfortunately, the promise of the Fourteenth and Fifteenth Amendments to end racial discrimination in voting went unfulfilled for almost a century. In 1964, only 6.7% of eligible Black individuals were registered to vote in Mississippi. In Alabama, only 18% were registered to vote.

Across all the states that had comprised the Confederacy, only 43% of eligible Black voters were registered.

The Voting Rights Act of 1965 was enormously successful in dramatically increasing registration and voting among voters of color, as well as significantly increasing the election of people of color to political office. The two most important provisions were Section 2 and Section 5, the latter being a preventative mechanism that required jurisdictions with a history of race discrimination in voting to obtain preapproval from the attorney general before a change in their election systems.

In 2013’s Shelby County v. Holder, however, the Supreme Court declared key aspects of this provision unconstitutional, and no jurisdiction has needed to get pre-clearance ever since.

In its ruling, the court offered the reassurance that there was still Section 2 of the Voting Rights Act, which provides that state and local governments cannot have election systems or practices that discriminate against voters of color. In 1982, Congress amended this to make clear that proof of a racially discriminatory impact is sufficient to establish a violation of the law.

The reality is that it is very difficult to prove that the government acted with a racially discriminatory intent; rarely will legislators express a racial motivation.

As a result of Section 2, in many states — especially Southern states — election districts were drawn to have populations that were comprised with a majority being people of color.

Recently, in its decision in Louisiana v. Callais, Justice Elena Kagan said the court “eviscerated” Section 2. The court said it is a violation of the equal protection clause of the Fourteenth Amendment for states to consider race in drawing election districts even when required under Section 2.

The court went even further, saying that so long as the government can point to another basis for its districting, such as helping one political party over the other, there would be no violation of Section 2. There is a strong correlation between race and political party affiliation, especially for Black voters who are overwhelmingly Democrats. Any time a state wants to discriminate, it can say that its action was based on partisanship and be immune from challenge.

The result of this is that states across the South are quickly redrawing congressional districts to eliminate majority Black districts and to gerrymander so that Black voters are made a minority in districts that are predominately Republican. In practical effect, the combination of the Supreme Court nullifying Section 2 of the Voting Rights Act and its allowing partisan gerrymandering is to replace Black Democratic representatives with White Republicans.

The perverse irony is that the court did this by saying it was required by the Fourteenth and Fifteenth Amendments. That is nonsense. It was six justices appointed by Republican presidents handing the Republican Party a huge victory for upcoming and future elections.

Erwin Chemerinsky is dean and professor of law at the UC Berkeley School of Law.