Don’t Overlook Justice Clarence Thomas’ Concurrence In Racial Gerrymandering Case

The Federalist 

In Louisiana v. Callais, the Supreme Court struck a major blow against race-based policymaking, holding that the law protects voters from discrimination, rather than mandating that states create racial gerrymanders as an ostensible corrective to discrimination. The decision builds on a string of cases whereby the Roberts Court has distinguished itself by rightly opposing present “anti-racism” as a remedy for past racism — with potentially massive political implications.

Yet as righteous as Louisiana v. Callais is, it modifies legal precedent, rather than jettisoning it. And in a terse but provocative two-page concurrence, Justice Clarence Thomas, hearkening back to an underappreciated opinion of his from some 32 years ago, argues that to achieve constitutional colorblindness the court must go further: Instead of just rolling back racial gerrymanders, it should jettison the entire corpus of fundamentally corrupted jurisprudence that spawned the pernicious practice.

The landmark Louisiana case, and past rulings, have centered fundamentally on the court’s approach to challenges to political maps and districting schemes as racially discriminatory under Section 2 of the Voting Rights Act (VRA). The court has done so in part by developing tests concerning geography, demographic makeup, voting patterns, and the “totality of circumstances” to determine whether such maps or schemes pass legal muster — weighing disparate impact above discriminatory intent. Based on precedent and past Justice Department pressure, primarily Southern states have taken to drawing majority-minority districts — that is, racial gerrymanders purportedly benefitting minorities — to preempt challenges to their maps as dilutive and therefore discriminatory.

That is what Louisiana did in adding a second majority-minority district to its six-district political map – only for that map itself to be challenged as an unconstitutional gerrymander. The court held in Louisiana v. Callais that indeed the map was unlawful. Justice Samuel Alito, writing for the majority, found that while VRA Section 2 ironically can provide a compelling reason for race-based districting, it did not require Louisiana to do so. The court’s revised reading of the VRA raised the threshold for challenging a map’s constitutionality under its previously established standards, focusing on “intentional discrimination” over disparate impact — accounting in part for increased minority voter participation and representation in the South.

Thomas’ Concurrence

Justice Thomas, joined solely by Justice Neil Gorsuch, concurred in the opinion. But Thomas argued that the court has approached the VRA in a fundamentally flawed way, and, notwithstanding its Louisiana ruling, has consequently promoted a perverse system of proportional racial representation. He would dispense with new interpretations or updated tests. To end the “disastrous misadventure” that has seen the court drive “legislatures and courts to ‘systematically divid[e] the country into electoral districts along racial lines,’” Thomas says judges should get out of the business of entertaining districting and other challenges under the VRA altogether.

The quoted text comes from the justice’s concurrence in Holder v. Hall, an opinion Thomas invoked in his Louisiana concurrence. The 1994 Holder case concerned whether under Section 2, plaintiffs could challenge the size of a single-member county commission for diluting minority votes. In a splintered ruling, the court found they could not.

There, Thomas, joined only by Justice Antonin Scalia, explained why the court should not permit such a challenge — an explanation that applies to today’s districting cases. And he detailed why the associated rulings were so detrimental to our constitutional order and body politic — arguments that remain relevant with precedent persisting, even if now in modified form.

Section 2 Does Not Cover Districting

Congress passed the Voting Rights Act, Justice Thomas recounted, to eliminate discriminatory practices that kept blacks in the segregated South from being able to register and vote. Section 2 holds that citizens shall not be denied the right to vote on account of race through any discriminatory “voting qualification,” “prerequisite to voting,” or “standard, practice, or procedure.”

In Justice Thomas’s straightforward yet apparently radical reading, Section 2 does not cover districting. The relevant terms, “standard, practice, or procedure,” Justice Thomas wrote some three decades ago, “reach only state enactments that limit citizens’ access to the ballot.” “Districting systems and electoral mechanisms that may affect the ‘weight’ given to a ballot duly cast and counted are simply beyond the purview of the Act,” he asserted. And if Congress had wanted to amend the Act to cover vote dilution, it could have done so.

Thomas made these arguments in an extensive analysis of the statute, establishing that the court twisted itself in knots, eliding the law’s text, and relying on a selective reading of legislative history to not only use the VRA to adjudicate vote dilution cases, but as a “device for regulating, rationing, and apportioning political power among racial and ethnic groups.”

The kinds of judgments the Supreme Court undertook based on its expansive reading of the VRA, Thomas argued, reflected that the court had erred from almost the beginning. Dating back to 1969, the court interpreted the VRA to encompass practices and processes beyond registering and voting, including ones that might be deemed “dilutive.”

Forcing Political Questions

This forced the justices to answer expressly political questions. They had to define what an “undiluted” vote would look like, and then what the best system was to achieve it. The court would rule on whether single-member or multi-member districts better represented minorities; and whether the extent of group representation hinges on the “influence [it has] over a greater number of seats, or control over a lesser number of seats.”

The court necessarily would also have to rule not only on “how” representatives are elected to represent minorities, but “how many” such representatives must be elected as a proportion of all seats.

These were “questions of political philosophy, not questions of law,” Justice Thomas charged, and they were ones that went “beyond the ordinary sphere of judges.”

Once the court waded into these matters, Thomas found, it landed on a theory premised on the view that members of common racial or ethnic groups “must all think alike on important matters of public policy and must have their own ‘minority preferred’ representatives holding seats in elected bodies if they are to be considered represented at all.”

‘Political Apartheid’

To Thomas’ chagrin, the court would effectively endorse the idea that combatting discrimination required permitting the practice of engineering of districts to ensure roughly proportional representation by race. “[W]e have assigned federal courts the task of ensuring that minorities are assured their ‘just’ share of seats,” including through “drawing majority-minority single-member districts,” he noted.

By “systematically dividing the country into electoral districts along racial lines,” the justice lamented, the courts had participated in “an enterprise of segregating the races into political homelands that amounts, in truth, to nothing short of a system of ‘political apartheid.’ 

“The clear premise of the system is that geographic districts are merely a device to be manipulated to establish ‘black representatives’ whose real constituencies are defined, not in terms of the voters who populate their districts, but in terms of race,” Thomas thundered.

These contemptible consequences, he said, including the racial polarization that they would generate, flowed naturally from the court’s jurisprudence. The court therefore should consider whether the mess it had made required a “systematic reexamination” of its interpretation of the VRA.

Justice Alito’s opinion in Louisiana v. Callais seeks to better harmonize this arguably flawed precedent with the VRA’s text, the Constitution, and practical reality — including the laudable decline in “entrenched racial discrimination” in America.

That opinion took courage, given the vicious opposition the court faced, and the blowback it knew it was likely to engender by potentially threatening a dozen or so blue racially gerrymandered districts in red states.

And the opinion may well achieve the goals sought by Justice Thomas.

But his concurrence some three decades earlier demands another look. It suggests a further Voting Rights Act reckoning is still needed, not only to purge race-based policy from our electoral system, but to restore the proper role of the judiciary itself.