Sometimes it’s hard to keep up with the irony.
This week we—some of us, anyway—celebrate the 50th anniversary of the Voting Rights Act, which aimed to correct more than a century of injustice and make it possible for Americans of color to finally exercise their long-denied franchise.
Meanwhile, demographic trends make it likely America will become a white-minority nation within the next 30 years. While millions of people are embracing our nation’s growing diversity, seeing it as a strength, others, aghast at the thought of the political power minorities, especially Hispanics, will eventually wield, are pulling out all the stops in an effort to preserve a white-minority government for as long as possible.
One tactic is to suppress voting rights. Another is to rig the electoral system to undermine the political power of one segment of society. Both are happening as we speak.
People died to make the Voting Rights Act a reality, yet two years ago five members of the Supreme Court, in Shelby County v. Holder, put a dagger in the heart of the Act, only weeks after Congress re-authorized it. Several states immediately jumped to pass legislation to restrict of suppress voting. These voter suppression efforts, the the grandchildren of the desperate campaigns, often backed up by murderous violence, to prevent African-Americans from casting ballots, have aimed to put as many obstacles to voting as possible in the path of minorities and the poor.
Recently, the Court agreed to hear a case that poses an even greater threat to our representational democracy. The case is Evenwel v. Abbott, brought by the same conservative advocacy group that persuaded the five justices in their Shelby County decision. At the heart of the case is the argument that voting districts should be drawn to include equal numbers of eligible voters, not, as has been the case for decades, equal numbers of individuals, a principle encapsulated in the phrase “one person, one vote,” which itself is grounded in the Equal Protection Clause and laid out in the Court’s 1964 decision in Reynolds v. Sims.
The plaintiffs in Evenwel want to do away with that. The fact the Court took the appeal is a strong suggestion, though not a certainty, a majority of justices will agree. The intended effect of the Court’s siding with the plaintiffs in Evenwel would be a re-drawing of state and local voting districts in a way that would increase the power of white suburban and rural voters and dilute the growing power of urban areas (where most Americans live) and minorities, particularly Hispanics. The Cato Institute, in an amicus brief urging the Court to hear the case, makes that clear.
While Evenwel v. Abbott is concerned with state and local voting districts, it is a short leap from there to federal districts. One need only recall Citizens United, in which Chief Justice Roberts brought the parties back in not only for re-argument, but to argue the case on broader grounds, resulting in a sweeping decision that opened the floodgates to allow billions of dollars to wash through our elections. Besides, since state legislatures control the decennial reapportionment, anything that changes the dynamics of state legislative elections will have a major impact on how the lines of Congressional districts are drawn.
The Court has not been unilaterally hostile to voting rights, although the conservative bloc—Chief Justice Roberts and Justices Scalia, Thomas, and Alito—can probably be relied upon to approve efforts to limit the franchise, even if it means overturning precedent, as in Citizens United and Shelby County. The swing vote, as usual, will likely be Justice Kennedy. He voted with the majority in Shelby County, but he joined Justices Ginsberg, Sotomayor, Kagan, and Breyer in recent cases that sent back redistricting schemes in Alabama, North Carolina, and Virginia that were designed to herd minority voters into districts in a way as to dilute their influence.
The stakes are high in this case. In his history of “one person, one vote,” J. Douglas Smith traced the background of campaigns by certain groups to defeat efforts to reform the apportionment process “in order to promote a probusiness, antilabor agenda of low taxes, limited government, and minimal regulation.” Sound familiar? In the long run, this modern version will likely fail; any ideology that depends on white-minority rule will not last. But in the meantime, an enormous amount of damage can be inflicted on our democracy.