Colorblind Injustice: Overcoming Shaw

By J. Morgan Kousser

Vol. 20, No. 2, 1998 pp. 14-16, 22

Students in history classes often confuse memorable events with important causes. Even those born long after the 1965 Selma-to-Montgomery march tend to make it the center of any discussion of the growth of post-Second World War African-American political power. It is a gripping event, featured in television documentaries, spotlighted in textbooks, easily discussed in class. There is violence, which always holds our attention; memorable protagonists, Martin Luther King, Jr., and Alabama governor George C. Wallace; a huge supporting cast, from nationwide civil rights advocates converging on Montgomery to Alabama State Troopers, Klansmen, and ordinary citizens, Black and white; a great, now consensual cause, the reenfranchisement of Black citizens illegally denied the vote for more than sixty years; a joyous climax, with King's speech before a sea of avid faces standing in streets that had witnessed the epochal bus boycott less than a decade earlier; and a triumphant denoument in Washington a few months later, with the passage of the Voting Rights Act.

In fact, Selma was not the end of the twentieth century struggle to gain equal political power for minorities, but more nearly the beginning. It was not the dusk of the dark day of racism, but rather only the first light of a new era, one in which the battle had to be continued, long after the cameras and spotlights had been cleared away, in the workday activities of organizing, campaigning, litigating, and legislating against the still formidable legal and social barriers to equality. It is such subtle barriers and often overlooked or downplayed struggles, I contend in my new book, Colorblind Injustice: Minority Voting Rights and the Undoing of the Second Reconstruction, that have primarily shaped the course of race relations in America.

If we want to understand where we have been and influence where we are going, we should pay more attention to incremental changes in laws and nuances in judicial opinions, and somewhat less to the most conspicuous events; more to those who work largely behind the scenes to make relatively small changes in institutions and institutional rules, and less to the most visible leaders; more to happenings in cloak rooms in Atlanta and court rooms in Washington, and less to speeches, however grand and uplifting, in Montgomery; more to facts and history, and less to easy slogans like "colorblindness."

It is the slow evolution, the institutional details, the day-to-day battles by too often forgotten women and men that determine whether the sudden revolutions led by celebrated heroes will flourish, falter, or fade.

This neglected history of strategies and cabals, of elections and trials, of commissions and legislatures, sets current events in a novel light. It is a different interpretation of the past and present of race relations than Americans generally get from the media or even from professors.

Understanding why recent U.S. Supreme Court decisions outlawing "racial gerrymandering" are neither colorblind nor just requires an examination not only of the opinions themselves, but also of the interpretation of history on which they explicitly or implicitly rest. To the authors and defenders of Shaw v. Reno (1993) and similar decisions, the Fourteenth Amendment is aimed not at discrimination against but at distinctions between people because of race. For them, the history of race relations in America is that of a dark, murky, and distant past now fortunately overcome by a natural process of enlightenment of opinion and behavior, not by anything governments did. Their view of the law is dangerously wrong, their version of history, disingenuously fanciful.

A comparison of the First and Second Reconstructions (after the Civil War and World War II, respectively) and studies of the passage of election laws and redistricting schemes in Los Angeles, Memphis, and the states of Georgia, North Carolina, and Texas from the 1950s through the 1990s suggest a starkly contrasting account of our history with quite different implications for public policy. And a review of Supreme Court opinions on racial discrimination before, as well as since, William Rehnquist became Chief Justice in 1986 demonstrates that the "conservative" judges' interpretation of the Fourteenth Amendment is in fact radical, unwarranted, inconsistent, and unprincipled.

Why did the First Reconstruction fail and why has the Second Reconstruction been relatively successful, at least until fairly recently? A systematic comparison of the reasons for the divergent courses of the two Reconstructions shows that a sequence of behaviors, solidified and influenced by election laws, resulted in the widespread disfranchisement of African Americans in the late nineteenth century. Racist and illogical Supreme Court decisions, stark partisan splits over racial policy, and a fluctuation in congressional membership caused by districting plans with a large proportion of marginal seats prevented the national government from perfecting adequate protective laws. Revolutionary changes enfranchised Blacks; incremental changes disfranchised them.

During the Second Reconstruction, a much more liberal Supreme Court, much less serious partisan divisions over racial matters, and stability in congressional membership allowed the Voting Rights Act to pass and to be amended and interpreted to meet contingencies that were not wholly appreciated at first. The recent stark reversals


Page 15

of precedents by a radical Supreme Court, the upheavals in congressional membership, especially in 1994, the increasing correlation between elected officials' partisan affiliations and their stances on racial policy, and wholesale reinterpretations of the history of minority political participation and the Voting Rights Act by "conservative" academics and judges threaten to undo the civil rights progress of the Second Reconstruction.

Racial gerrymandering did not begin in the 1990s, it was not limited to the South, and its targets were Latinos as well as AfricanAmericans. In Los Angeles, intentional discrimination against Latinos in the drawing of districts for representatives to the nation's largest and most powerful county government kept a growing Latino population from being able to elect candidates that it most preferred from 1874 through 1990. Only federal court decisions that were partially based on an earlier version of a chapter of this book forced Los Angeles County to redistrict fairly, to allow the 37.5 percent of its population that was then Latino to finally elect one of the five county supervisors.

Racism in Los Angeles is usually more subtle and less audible than it is in the South. That was certainly the case in Memphis in the 1950s and 60s. To head off the threat that an increasingly assertive Black community would translate their numbers into political power, white leaders in Memphis passed laws switching from district to at-large elections and from plurality-win systems to runoffs, as well as eliminating "single shot voting" that might allow Blacks to elect one favored candidate in an election in which several candidates who finished with the highest votes were elected. And Memphians were not bashful in announcing the racial purposes behind these actions. An earlier version of this paper was the principal evidence before a judge who threw out the runoff law, an action that resulted in the election of Memphis's first Black mayor.

Georgia in the mid-1960s faced a Black power threat similar to that in Memphis, and "moderate," as well as radical white segregationist leaders there responded in the same way Memphians did, by mandating runoff laws that made it much more difficult for Black minorities to elect candidates of their choice. In drafting election laws before the 1990s, race mattered most in the urban West, as well as the rural and urban South. Only with the help of the Voting Rights Act, employed by aggressive civil rights attorneys and a sympathetic U.S. Department of Justice, did minority voters overturn systems that were specifically designed to discriminate against them.

In 1991-92 favorable judicial decisions interpreting the Voting Rights Act and the Constitution enabled African-American and Latino politicians and interest groups that represented minority voters to enjoy a fair chance to frame election arrangements for the first time in American history. Supported by both the Republican and Democratic parties and at least tolerated by a white public opinion


Page 16

anxious to appear fair toward minorities, the resulting reapportionments produced the largest increase in minority representation in Congress and Southern state legislatures since the early 1870s. That upsurge, however, was too much for the right-wing majority of the Supreme Court.

Racial gerrymandering was nothing new in any of the states which produced cases that the Supreme Court decided. The first racial gerrymander in congressional districts in North Carolina took place in 1871, just after the passage of the Fifteenth Amendment that enfranchised African Americans, and such gerrymanders continued until Blacks were disfranchised in that state in 1900 and resumed after a majority of Blacks in the state were reenfranchised in the late 1960s.

There has never been a congressional reapportionment in North Carolina at a time when a majority of Blacks could vote that did not contain a racial gerrymander. The Supreme Court just never noticed until Black Tar Heels in 1992, for the first time in the twentieth century, were able to elect African-American candidates to Congress. And in fact, the widely-ridiculed shapes of the two minority opportunity districts in North Carolina from 1992 to 1996 had more to do with partisan politics than with race.

Texas's incomparably brutal politics has also historically produced repeated gerrymanders-personal, racial, and partisan. In Texas, however, minority politicians moved into positions of power within the Democratic party earlier than in North Carolina, and they began to win some modest redistricting victories in the 1960s and 70s. In 1981, a Republican governor in alliance with conservative Democrats managed to split the Black community in Dallas and force through a redistricting designed to inflame racial tensions within the Democratic party. That redistricting, overturned by a Democratic federal court and later, by a Democratic legislature and governor, taught Democrats a lesson that they applied in 1991: the party needed to reward its Black and Hispanic supporters to remain competitive with the surging Republicans.

Satisfying all factions within the Texas Democratic party, however, produced non-compact congressional districts that Republican district and Supreme Court judges declared to be purely racial gerrymanders. A federal judge who had been the chief counsel for the Texas Republican party in the early 1980s then redrew nearly half of the congressional districts in the state, insuring the defeat of a white liberal Democrat in Dallas and the exclusion of Houston Hispanics from congressional representation, in what the judge described as a nonpartisan, colorblind attempt to follow the Constitution.

Since the 1970s, the Supreme Court has required African Americans or Latinos who challenged laws or administrative procedures as contrary to the equal protection clause of the Fourteenth Amendment to prove that the acts were adopted or maintained with a discriminatory purpose and that they have a current discriminatory effect against minorities. But when whites brought suit against redistricting arrangements in the 1990s, they were not required to prove that they were injured or that the boundaries were meant to have a discriminatory effect against them. Instead, whites only had to show that minority opportunity districts were not as compact as a hypothetical judge might have drawn, or that someone said the districts were drawn, in accord with the 1982 amendments to the Voting Rights Act, to give minorities a fair chance to elect candidates of their choice. Either avowals of compliance with the Voting Rights Act or what Professor Lani Guinier has called "aesthetically incorrect" districts were sufficient to invalidate minority opportunity districts. Furthermore, any increase in the minority percentage in a Deep South district containing a large proportion of minorities was invalid, the five-person Supreme Court majority ruled. And any increase in minorities in any district whatsoever raised the suspicion that Democrats were trying to use "race as a proxy" for Democratic voting, which the "conservatives" also ruled unconstitutional.

The 5-4 Supreme Court decisions in Shaw v. Reno (1993) and its successors, and U.S. v. Hays (1995), Shaw v. Hunt and Bush v. Vera (1996), and Abrams v. Johnson and Reno v. Bossier Parish School Board (1997) were radical departures from earlier equal protection decisions and are inconsistent with each other. Based on formalistic standards that ignore both common sense and readily available empirical evidence, they impose a variety of racial double standards that amount to a separate and unequal equal protection clause that makes it much easier for whites than for minorities to win voting rights cases. They ignore or misinterpret evidence from the particular instances of redistricting that they consider, evidence that undermines their conclusions on racial intent. And along with other contemporary Supreme Court rulings on redistricting, they also impose a partisan double standard that strongly favors the Republican party that appointed the five-person Shaw majority and that benefits most strongly from the ethnic antagonisms that Shaw and the other decisions exacerbate.

Shaw and its progeny are not "colorblind," as their defenders claim, but intensely color-conscious. They do not reflect the trend of modern equal protection law, but in their disregard of facts, twisting of language, and distortion of precedent, they introduce what I call "postmodern equal protection." Designed to make Blacks and Latinos the only interest groups that cannot be recognized in redistricting, the Shaw line of cases, in a cruel irony, employs the Fourteenth Amendment to deny equality to those relatively powerless minorities that the Amendment was meant to protect.

It took the forces of reaction 28 years, from 1965 to


Page 22

1993, to re-form after that bloody Sunday at the Edmund G. Pettus Bridge in Selma, and this time, there was no televised confrontation to capture attention and rally support. Instead of a proclamation from a commander of the Alabama State Troopers, shortly followed by tear gas and a calvary charge, there was a mere Supreme Court opinion read by Justice Sandra Day O'Connor, with no cameras present - a few pages of paper, the result of a long, rather quiet, and often not well understood process of reversing the direction of the Supreme Court and symbolically, of the Selma March. But the 1993 Shaw opinion, and all the lesser trends that it encapsulated, were together as significant as the confrontations of 1965.Shaw was a second attempt to send the voting rights forces back across the bridge in disarray and despair. The first time, the troopers' triumph was temporary. The second time, the five justices have succeeded in gradually driving the civil rights forces in a long, slow retreat, in effect retracing the steps of the Montgomery March. To counterattack, to overcome Shaw, we must undermine its legitimacy by showing that it rests on distortions of history and perversions of law.

J. Morgan Kousser is Professor of History and social Science at Caltech in Pasadena. He has served as an expert witness in nineteen federal voting rights cases. His forthcoming book, Colorblind Injustice, will be published by the University of North Carolina in January 1999.