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

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.” 

Equal opportunity can no longer be depended on to serve the cause of justice. We need a more robust and aggressive policy to defeat systemic racism. White supremacy cannot be defeated by equality. Racial and ethnic preferences must be advanced openly, without the fraudulent disguises of the past. Goals, timetables, remedies for historical injuries that will end when the “playing field is level” were all unnecessary excuses for racial class entitlements. Equity makes excuses superfluous. Racial class, ethnic class, sex class, orientation class, and a host of other class distinctions, real or imagined, can now advance equitable claims that need no justification.

Biden announced in his order that Trump’s executive order of September 22, 2020, titled “Combating Race and Sex Stereotyping,” “is hereby revoked.” One suspects that a large part of Biden’s motivation for revoking Trump’s order is the simple desire to remove any trace of Trump and his policies from the national scene. After all, Trump’s order began with a recitation of the Declaration of Independence and quotations from Abraham Lincoln. 

In Biden’s universe, a universe he shares with the progressive Left, the Declaration and Lincoln were part of the systemic racism—both supported “equal opportunity”—that undermines justice in our politics today. Trump reflected his customary heterodoxy in his executive order when he mentioned the “destructive ideology” of the progressive Left (which was on full display in Biden’s equity executive order). That ideology, Trump said, 

is grounded in misrepresentations of our country’s history and its role in the world. Although presented as new and revolutionary, they resurrect the discredited notions of the nineteenth century’s apologists for slavery, who, like President Lincoln’s rival Stephen A. Douglas, maintained that our government ‘was made on the white basis’ ‘by white men, for the benefit of white men.’ Our Founding documents rejected these racialized views of America, which were soundly defeated on the blood-stained battlefields of the Civil War. Yet they are now being repackaged and sold as cutting-edge insights.

Trump, of course, is correct. The Left—and Biden now its principal acolyte—always fail to mention that in the racialized history they imagine, the Democratic Party was the party of slavery before and during the Civil War, the party of black codes and Jim Crow after the Civil War and the party of segregation for much of the 20th century. Today, the Left pretends that it wants to make amends for its past by further racializing America by equity, a policy that will further divide the country on racial lines. Ever since it supported the slaveocracy, the Democratic Party has been a party fueled by the politics of racial division; it seems unable to escape its racist past.

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.

In issuing this ipse dixit, it appears that the Wisconsin Supreme Court was adopting Joe Biden’s own executive order on equity. No legal reasoning or constitutional text required, just a sense of fairness and justice generated by a false racialized history. The U.S. Supreme Court sent the case back to the Wisconsin justices for reconsideration because they had utterly misconstrued (or more precisely, ignored) the high court’s decisions articulating the precise connection between the Voting Rights Act and the Equal Protection Clause. 

Any decision based predominantly on race must meet what the Supreme Court calls a “compelling state interest” and must be “narrowly tailored” to achieve the compelling interest. Complying with the requirements of the Voting Rights Act, the Court has held, is a compelling interest, but since the additional majority-black district was based predominantly on racial factors, the state must bear the burden of strict scrutiny. 

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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