Tag: Jim Crow

SCOTUS – Louisiana v. Callais

“The Supreme Court’s invalidation of Louisiana’s congressional map has triggered a swirling debate about just how fundamentally the justices altered the Voting Rights Act landscape.” This and following quotes are from The Hill article: the hill – regulating voting-rights-act-supreme-court – SCOTUS-Decision  

The court’s ruling in Louisiana v. Callais was adopted by 6 – 3 of the judges.

I am quite amazed how dramatically differently some people have characterized the decision’s result.

“Section 2 of the Voting Rights Act of 1965 [as Amended in 1982] has enabled groups to force states to draw additional majority-minority districts for decades,” despite the 15th Amendment to US constitution in 1870, which prohibited the federal and state governments from denying a citizen the right to vote based on that citizen’s “race, color, or previous condition of servitude”, effectively protecting the voting rights of Blacks.

Section 2 “bars voting maps that give a racial minority ‘less opportunity than other members of the electorate’ to elect their preferred candidate.”

In Thornburg v. Gingles (1986), the Supreme Court ruled that multi-member legislative districts in North Carolina violated Section 2 of the Voting Rights Act by diluting Black voting power. The landmark ruling established a critical three-part legal test to determine if an electoral map illegally discriminates against minority voters.

To prove a violation of Section 2, plaintiffs must satisfy the following three preconditions:

  1. Numerosity and Compactness: The minority group must be sufficiently large and geographically compact to constitute a voting majority in a single-member district.
  2. Political Cohesion: The minority group must show that it is politically cohesive, meaning they largely vote for the same candidates.
  3. Majority Bloc Voting: The plaintiffs must prove that the white majority votes sufficiently as a bloc to usually defeat the minority group’s preferred candidates

After Thornburg v. Gingles, plaintiffs could prove vote dilution by showing that a minority group was large and compact enough to form a majority in a reasonably drawn district, was politically cohesive, and faced bloc voting by the majority that usually defeated its preferred candidates.

That framework gave civil-rights groups a litigation template: draw an “illustrative” majority-minority district, show polarized voting, and argue that the state had cracked or packed minority voters so they could not elect their preferred candidate. If they won their case, the remedy often required the state to create an additional majority-minority district, even though Section 2 formally says it does not create a right to proportional representation.

In its recent Louisiana v. Callais ruling the Court held that Louisiana’s second majority-Black congressional district was an unconstitutional racial gerrymander and that Section 2 did not require Louisiana to draw it. The Court majority said that Voting Rights Act compliance can be a compelling interest only when Section 2 is properly construed, and it tightened the Gingles test by requiring race-neutral illustrative maps, closer adherence to state districting goals such as compactness, incumbency protection, and partisan objectives, and evidence separating racial bloc voting from ordinary partisan voting.

The practical effect is that plaintiffs can no longer easily say, “Here is a compact majority-minority district; therefore, the state must draw it.” After Callais, they must show that the alternative map satisfies the state’s nonracial redistricting criteria, that the voting polarization is racial rather than merely partisan, and that the totality of circumstances points to present-day legally relevant discrimination rather than mainly historical disadvantage.

A “majority-minority district” is one in which a racial minority (blacks, Asian, Hispanics, etc.) constitute a majority of the voters. The presumption seems to be that, for example, only (or mostly) blacks will vote for a black candidate. That is clearly a racist view. Barack Obama, for example, was elected President of the United States by a majority of white voters.

I am really shocked at how overtly racist the opposition to the court’s decision is. “’Unfortunately, we are talking about rolling back to an era of Jim Crow, and I don’t believe I’m overstating that,’ Sophia Lin Lakin, director of the American Civil Liberties Union’s voting rights project, But Jim Crow laws were used to segregate blacks and whites. Majority-minority districts move in the same direction. The court’s weakening of the arguments for such districts is the opposite of a Jim Crow law. Voters are motivated by many things, but I have more confidence than does Ms. Lakin in voters choosing the candidate they think best and most effectively supports the policies they support, whether the voter is black, white, or yellow whatever the color of the candidate.

“House Minority Leader Hakeem Jeffries (D-N.Y.) said the law was ‘largely gone,’ telling reporters the decision was ‘designed to undermine the ability of communities of color all across this country to elect their candidate of choice.’” Good grief.

Here is an excellent discussion of this issue: “The supreme court’s vote ruling empowers minorities”

Liberty and the Overly Prescriptive State

Few things reveal a person’s views on liberty more than their attitude toward the right of others to say or do things they disagree with. The First Amendment to the Constitution of the United States protects our right of free speech and assembly, later interpreted to include the right of association. “The NSA Unravels a Civil Rights Era Win”/2013/08/29/ None of these rights is absolute (yelling fire in a theater, etc), but where we as a society draw the line has a great deal to do with how successfully our diverse citizens will live together in harmony and freedom.

The latest example of the imposition of the state into what should be private issues of belief is California’s ban on health practitioners “offering psychotherapy aimed a making gay youth straight.” The U.S. Court of Appeals for the 9th Circuit in San Francisco ruled that the law does not violate the free speech rights of licensed counselors and patients seeking treatment.” “US Court Upholds First in Nation Law Banning Gay to Straight Therapy for Minors”/2013/08/29/

Conversion therapy is a scientifically documented scam, but if its practitioners believe in it, it is not a deliberate fraud (maybe they do and many they don’t). We are freer, and live in greater harmony the more we allow people to pursue and experiment with their own beliefs. This includes things the rest of us might think are silly. Such freedom, when exercised within a strong set of moral values, also tends to move society more quickly to a more virtuous level. The caveat is that in allowing people to live according to their own creed, they must do no real harm to others.  Even the “doing no harm to others” standard is subject to discussion and can moved a bit this way or that – toward more freedom or less. In the case of the California law against conversion therapy, the law was aimed at protecting minors from harm inflicted by such therapy and we have rightly been quicker to protect minors than others. In short, drawing an appropriate line between private rights and state intervention is a serious and not particularly easy undertaking.

Those of you who are lucky enough to be Facebook friends of Jonathan Rauch, author of “Denial” and currently a contributing editor of the National Journal and The Atlantic, and a guest scholar at the Brookings Institute, have access to a very thoughtful discussion of the freedom of conscience, association and speech and equal protection of the law. In comments to one of Jonathan’s postings, Charlotte Allen, Tom Palmer, and Walter Olson, Walt Becker (a pseudonym), David Dalton and others explore the interface between the freedom of association and equal protection of the law in the context of same sex marriage. In such discussions it is critical for those of us who defend the importance and morality of liberty to clearly distinguish what we individually believe is right and good from what is or should be allowed under the law. The law should allow people to make their own stupid mistakes.

In reaction to slavery and Jim Crow laws, which legally discriminated against blacks, America has gone well beyond repealing such legislation and has adopted a range of anti-discrimination laws limiting the ability of “public” businesses to choose their employees and customers. These anti-discrimination laws are now increasingly being extended to GLBTs (Gays, Lesbians, Bisexuals and Transgenders). Personal beliefs and preferences, whether we agree with or respect them or not, thus confront state interference in our personal choices and behavior. Doctors, who do not believe in abortion, are required to perform them. Companies whose owners do not believe in contraception are forced to provide health insurance and condoms to employees wanting them. A New Mexico photographer and baker are sued for refusing to provide their services to a same-sex wedding ceremony.

Equal treatment in the law was put aside for Affirmative Action giving preference to blacks in some cases on what was meant to be a temporary basis until the damage of earlier negative discrimination could be reversed. The Supreme Court has now started to roll back such preferences. In the above Facebook debate, Charlotte, who has trouble accepting marriage equality for same-sex couples, takes a more libertarian position on other areas of state imposed morality when she says “Why can’t we give people the freedom to set the parameters of their own commercial transactions?” The optimal balance shifts over time and I doubt that we have it anyway.

The government, which is often a lagging reflection of public sentiment, has been one of the last to extend equal treatment to same sex couples. Pure profit motive led corporate American to move ahead several decades ago to extend “marriage” benefits to employee partners of whatever sex. They did so in order to attract the best employees without regard to their color, religious beliefs, or sexual orientation. Discrimination has an economic cost.

No church should be required to marry anyone they don’t want to or don’t believe would be consistent with their beliefs. Allowing same-sex couples to receive a marriage license and the legal benefits that come with it from the State, which is surely required by the principle of equal protection of the law, does not and should not obligate any church to do so. I think that the treatment of the Boy Scouts of American set the right example.  As a private club the law allowed them to exclude gay boys from membership if they wanted to. However, evolving social understanding and attitudes and deeper reflection by Boy Scout leaders are slowly leading the Boy Scouts to change this policy. Getting the balance right will never be easy, but I prefer to error on the side of personal freedom rather than government dictated morality.