Author Topic: Supreme Court Upholds Equality in the Voting Rights Act, But Not Equity in Voting  (Read 94 times)

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Supreme Court Upholds Equality in the Voting Rights Act, But Not Equity in Voting

The Court wisely overturned a dubious and racialized distortion of the Constitution.

By Edward J. Erler
April 2, 2022

On his first day in office, Joe Biden signed an executive order mandating that all executive agencies of the federal government adopt policies to implement “an ambitious whole-of-government equity agenda.” This “agenda” is necessary, Biden said, because, while “equal opportunity is the bedrock of American democracy,” the “American Dream remains out of reach” for “too many.” Systemic racism remains stubbornly entrenched in “our laws and public policies, and in our public and private institutions.”

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Refusing to Accept Racialized “Equity”
On March 23, the Supreme Court handed down a decision reversing the Wisconsin Supreme Court in a case involving the Voting Rights Act. The case has a complicated procedural history which doesn’t need to be rehearsed in detail. Suffice it to say that after the 2020 census, Wisconsin’s state legislature redrew its senate and state assembly districts. The redrawn maps were then vetoed by the governor. Unable to resolve their differences, both sides submitted the issue to the Wisconsin Supreme Court.

The redistricted maps that the Wisconsin court finally recommended were those submitted by the governor who had, sua sponte, increased the number of black-majority assembly districts in Milwaukee from six to seven, alleging that the increase was necessary to comply with the Voting Rights Act. In accepting the governor’s submission, the Wisconsin Supreme Court reported it could not say “for certain. . . that seven majority Black assembly districts are required by the VRA,” but that there were “good reasons” to believe that that act “may” require such additional districts and therefore the governor’s redistricting map was constitutional under the Equal Protection Clause of the 14th Amendment.

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State action rarely survives strict scrutiny and that was the case here. Section two of the Voting Rights Act does not allow vote-dilution of minorities. That is, minorities may not be placed in a position where they have fewer opportunities to elect preferred candidates than before the redistricting. There can be no “retrogression.” By the same token, however, the Voting Rights Act does not require that the voting power of minorities be maximized, that is, that their power to vote for preferred candidates be enhanced. The Supreme Court ruled there was no evidence adduced by the Wisconsin Supreme Court that the Voting Rights Act required seven black-majority districts.

The crucial equal protection question the Wisconsin Supreme Court did not address was whether a race-neutral reapportionment that did not add a seventh majority-black district would deny black voters either equal access to the ballot or equal political opportunities. This would be required of strict scrutiny analysis.

The decision in the case was per curiam with two dissenters, Justices Sonia Sotomayor and Elana Kagan. The 7-2 majority decision was solid, rehearsing a long line of precedents upholding strict scrutiny analysis for any reapportionment decisions based predominantly on race or ethnicity. Equity will not be coming to the Supreme Court any time soon.

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