In Louisiana voting case, US Supreme Court ponders a ‘colorblind’ Constitution

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By Jan Wolfe

WASHINGTON (Reuters) -In deciding a major case examining the racial composition of electoral districts in Louisiana, U.S. Supreme Court justices are facing the question of whether the U.S. Constitution should be seen as colorblind – even when remedies are sought under civil rights law for racial discrimination.

That was the view offered during arguments on Wednesday by a lawyer for white voters who sued to block an electoral map approved by Louisiana lawmakers that increased Black voting power in the state after a judge found an earlier version likely harmed Black voters in violation of a landmark civil rights law.

At issue in the case is whether the state legislature had relied too heavily on race in devising the boundaries of U.S. House of Representatives districts in Louisiana in a way that ran afoul of constitutional protections.

“If it was ever acceptable under our colorblind Constitution to do this, it was never intended to continue indefinitely,” Edward Greim, representing the white plaintiffs, told the justices.

The case gives the court’s conservative justices a chance to hollow out a provision of the Voting Rights Act of 1965, a path they seemed ready to take based on the questions they asked during Wednesday’s arguments. 

Republican President Donald Trump’s administration backed the challenge to the Voting Rights Act being mounted by the white plaintiffs and Louisiana Republicans. During his second term in office, Trump has made it a top priority to crack down on diversity, equity and inclusion programs nationwide.

Under the legal principle called constitutional colorblindness, the Constitution should be read as restraining the government from using race as a factor in its laws and actions. But some liberals have accused conservatives of embracing this colorblindness approach as a cover for policies that are not colorblind at all – disadvantaging minorities and benefiting white people.

Greim argued that creating a Louisiana electoral map that added a second congressional district with a Black-majority population – out of Louisiana’s total of six districts in a state where Black people represent about a third of the population – violated two constitutional amendments.

Both of them were ratified in the aftermath of the American Civil War of 1861-1865 that ended the practice of slavery that was widespread in southern states including Louisiana.

The 14th Amendment promises equal protection under the law. The 15th Amendment guarantees that the right to vote cannot be denied on the basis of “race, color or previous condition of servitude.” Along with the 13th Amendment that abolished slavery, they are called the Reconstruction Amendments because they date to the post-war Reconstruction era.

Richard Hasen, the law professor who heads UCLA’s Safeguarding Democracy Project, wrote on social media after Wednesday’s arguments: “The idea that the Court may use the Reconstruction Amendments to the Constitution to bar a remedy that helps minority voters is both ahistorical and repugnant.”

A ruling is expected by the end of June.

‘SUFFICIENT REMEDIES’

Justice Brett Kavanaugh highlighted the dilemma the court confronts in cases involving race in American society.

“The goal, of course, is racial nondiscrimination,” Kavanaugh said during the arguments. “But, at the same time, given history and given Congress’s action, the goal is making sure that there have been sufficient remedies for the history of discrimination in the United States.”

The court’s conservatives signaled skepticism toward the constitutionality of the Voting Rights Act’s Section 2, which bars voting maps that would result in diluting the clout of minorities, even without direct proof of racist intent. 

“The high court appears likely to restrict the power of Section 2 of the VRA in redistricting cases by limiting how much race can be used to remedy violations of that law,” said Loyola Law School professor Jessica Levinson.

“It does appear that a number of the conservative members of the court are uncomfortable with the idea that a violation of Section 2 could justify race-based remedies,” Levinson added.

The court in 2013 gutted another key provision of the same law in a decision authored by conservative Chief Justice John Roberts.

In a process called redistricting, the boundaries of legislative districts across the United States are reconfigured every decade to reflect population changes as measured by the national census. Redistricting typically is carried out by state legislatures.

Liberal Justice Sonia Sotomayor during the arguments defended the use of race in drawing congressional maps.

“Race is a part of redistricting always,” Sotomayor said, and can be “used to help people.”

It would be permissible, for example, for legislators to “keep an ethnic community in one district” to ensure fair representation, Sotomayor said.

Sotomayor said her fellow justices were engaging in an intellectual discussion that failed to account for this reality. A 2023 case involving Alabama, Sotomayor said, showed that racial discrimination in voting was not a thing of the past. 

“A map that’s been in effect almost the entire history of Alabama,” Sotomayor said, “was put in effect because of discrimination, so it’s going to have a lingering effect.”

STUDENT ADMISSIONS

Looming large during Wednesday’s arguments was the court’s 2023 decision rejecting race-conscious university admissions policies. The court’s conservatives said affirmative action programs that consider an applicant’s race violated the equal protection principle.

“Eliminating racial discrimination means eliminating all of it,” Roberts wrote in that ruling.

Roberts famously wrote in a 2007 case that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

Janai Nelson, the president of the NAACP Legal Defense Fund who argued on Wednesday on behalf of a group of Black voters, said the ruling in the student admissions case “made clear that it is still constitutional to use race to remedy specific discrimination, which is what we have in the state of Louisiana.”

The justices may use the Louisiana case to revise the legal framework for evaluating Section 2, without outright invalidating it, said Widener University Commonwealth Law School professor Michael Dimino Sr.

“Either they say Section 2 is unconstitutional, or they are going to interpret Section 2 in a different way,” Dimino said. “Either approach would be very significant for the voting rights field.”

(Reporting by Jan Wolfe; Editing by Will Dunham)