Attacks on voting rights can lead to racial manipulation

By Bernadette Reyes and Sonny Vaknin, especially for CalMatters

This comment was originally posted by CalMatters. Sign up for their newsletters.

Guest Comment written by

Last summer, the US Supreme Court made a shocking move: It declined to rule on Louisiana v. Calais, a a fully informed, fully reasoned case challenging Louisiana’s congressional map.

A group of white voters in this case challenge the legality of the state’s map after it was redrawn to correct racially discriminatory districting that had the effect of diluting black voters.

Instead of ruling on issues originally presented, the court decided to retry the case and issued a new question that it wanted the parties to answer: What is the constitutionality of taking race into account when drawing a map to remedy a violation of the Voting Rights Act?

Offering a race-blind remedy to resolve racial discrimination is like offering salt water to someone dying of thirst. But the court seems inclined to accept such a thing — or worse, to strike down the Voting Rights Act, which would leave minority voters out in the cold.

It is pointless to predict what the court will decide. But recent comments from several justices suggest significant changes may be imminent in one of the nation’s strongest voting rights protections.

The Voting Rights Act, passed in 1965, prohibits redistricting plans that have the effect or intent of preventing any racial, ethnic, or linguistic minority group from electing candidates of its choice. The act had an impact on California elections.

For example, in Garza v. Los Angeles County, a federal court in 1990 found that the Los Angeles County Board of Supervisors map divided the county’s Hispanic community among multiple districts and violated Section 2 of the Voting Rights Act.

As a remedy, Los Angeles County created the first Latino-majority Board of Supervisors district, which led to the election of Gloria Molina. The remedy — drawing up a new redistricting plan that allows a minority group to be the majority in a district and elect the candidates of its choice — is central to the Voting Rights Act.

This system of remedies under the Voting Rights Act is the focus of attention Calis case. Section 2 of the law is the nation’s greatest protector of black suffrage. Defenders of the law argued recently that the only black members of Congress elected in Louisiana were elected in districts drawn after a successful Voting Rights Act lawsuit.

The return of Jim Crow

And with attacks on citizens and non-citizens of Latinos nationwide reaching record highs, the law’s provisions may be one of the few federal protections for Latino voters.

Absent these protections, there is little to stop the diversion practices of the Jim Crow era from recurring. We know this will happen because after 2013, when the Supreme Court neutered another part of the Voting Rights Act, Section 5, we watched resurgence of discriminatory voting practices.

This time, however, the racial intent will be in the form of alleged partisan cards that it is claimed accidentally dismantle racial minority areas. Our extensive experience with these cases shows that all too often the motivations behind diversion plans are at least as racial as they are political.

This summer saw Texas redistricting in response to a letter from the US Department of Justice that targeted certain districts based on their racial makeup and directed the state to redraw districts that are considered “coalition districts” — where racial and ethnic minority groups combine to make up the majority of voters in an area.

Texas complied. It deliberately packs and breaks up black and Latino citizens into smaller districts and dilutes other districts with large minority populations by merging them with predominantly English-speaking rural areas.

The resulting cards clearly have discriminatory intent and effect. Congress has said time and time again that such intent and effect must be adjusted pursuant to 15th Amendment. Whatever the partisan motives, reasonable representation of racial minorities was a difficult measure to be adopted by Congress. The Supreme Court should not arrogate to itself the power to overturn this act of Congress, backed by the 15th Amendment.

Will any of this affect California Democrats’ attempts to gerrymander congressional districts to create the potential for more Democratic seats in Congress?

While California can also redistrict based on the results of Proposition 50the country’s current transfer frenzy is unlikely to be swayed by Callais at least for the 2026 midterm elections.

It’s a timing problem. The Supreme Court is unlikely to rule in Callais until next June. By then, almost every map will be finalized for 2026 and primaries will be held.

Even if the Supreme Court ruled earlier in the Texas case, it would not affect California’s efforts because the claims at issue in the Texas trial are intentional discrimination claims that exist under the Constitution.

Defending an inclusive democracy

There really isn’t a scenario where Prop 50 won’t have an impact during the midterm elections.

Despite attempts to characterize the Voting Rights Act as a partisan law, its loss would devastate the ability of black, Latino, AAPI, and Native American voters to elect candidates of their choice. It is impossible to know how this will play out on a partisan basis.

While states like Texas are moving backwards, California has an opportunity as well the duty to lead. The voters here will decide under a new redevelopment plan, but the state can and should go further.

By codifying key provisions of the Voting Rights Act into state law, strengthening protections against voter suppression and streamlining and modernizing election infrastructure, California can protect the inclusive democracy that other states are working to undermine.

The Supreme Court’s decision in Callais will determine the future of federal voting rights, but California should not wait to protect them.

This article was originally published on CalMatters and is republished under Creative Commons Attribution-NonCommercial-No Derivatives license.