Race, The Supreme Court, And Voting Rights

The Supreme Court heard oral arguments today on how much states can rely on race to draw voting districts. The case concerns Section 2 of the 1965 Voting Rights Act, which prohibits drawing election districts in ways that improperly dilute minorities’ voting power. Many people interpret this to mean that any time a state can create a voting district that is at least 55% minority, the state must do so.

These are called “majority-minority” districts. The idea is that this will increase the number of minority representatives in state and federal legislatures. But this means that states have to make race the crucial factor in drawing voting districts and that states therefore have to treat minority voters differently than other voters. Some argue that this conflicts with the Constitution. The 14th Amendment of the Constitution requires “equal protection of the laws” and the 15th Amendment says that “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.”

The Supreme Court just heard arguments in a case in Alabama where the State created just one majority-minority district when they could have created two. The press is full of dire warnings that this could mean doom for the Voting Rights Act. The site FiveThirtyEight direly warns that “The Supreme Court Is On The Verge Of Killing The Voting Rights Act” and NPR warns its readers that “The landmark Voting Rights Act faces further dismantling at the Supreme Court”.

But things probably aren’t that dire. At oral argument, even the conservative Justices seemed skeptical of the argument that the constitution forbade the use of race in drawing voting districts and showed no sympathy for the argument that the Voting Rights Act only forbids intentional discrimination.

Perhaps more importantly, it is far from clear that creating minority-majority voting districts actually helps minority voters. So, if the Court makes it harder for states to justify using race to bunch minority voters together, that might end up increasing minority voting power rather than decreasing it.

That’s because to create majority-minority districts, the state has to lower the number of minority voters in other districts. Since minorities, especially African Americans, strongly favor Democrats, that means that it will be easier for Republicans to win in those districts that have lost minority voters. The result might be that creating majority-minority districts increases the number of African Americans in Congress but decreases the overall number of Democrats. If African Americans favor Democratic policies, then then they are harmed rather than helped by majority-minority districts.

Some excellent empirical studies indicate that this is what is happening. Three Columbia University professors, publishing in the top political science journal in the country, concluded that “a trade-off does exist between maximizing the number of black representatives in Congress and maximizing the number of votes in favor of minority-sponsored legislation.”

They also conclude that “the point of equal opportunity for minority voters to elect the representative of their choice generally occurs in districts with less than 50% black voting-age population.” In other words, if a large number of voters in a district are African American, they can elect their preferred candidates even if they aren’t a majority since at least some white voters will agree with their preferences.

A separate study in a prestigious political science journal concluded that creating majority-minority districts lowers the number of Democrats in legislatures. Since African Americans prefer Democrats this undermines their ability to get their preferred policies enacted.

So the Voting Rights Act might not be in as much danger as the press thinks it is. The Supreme Court didn’t seem like it was on the warpath against it during oral arguments. And even if the Court does rule that it is unconstitutional to put undue emphasis on race in creating voting districts that would probably help minority voters more than it would hurt them.