After arguments regarding the Voting Rights Act of 1965 in Louisiana v. Callais last October, I wrote the likely holding striking racially gerrymandered voting districts would affect the West.
Unsurprisingly, following Supreme Court Justice Samuel Alito’s 6-3 opinion, Wyoming Secretary of State Chuck Gray advised Fremont County that its use of a court-ordered racially gerrymandered commissioner district violates the Constitution. Thus, while most focused on Democrats’ loss of nearly 19 southern congressional seats, all the VRA’s race-based districts are at risk.
As I advised Cowboy State Daily’s Jack Nichols, most of the public knows Democrats in the South blocked compliance with the Fifteenth Amendment’s guarantee of the right to vote regardless of “race or color” and Congress, via the VRA, enforced that guarantee. Few realize that, over the years, the Department of Justice’s Civil Rights Division sent lawyers across the country demanding race-based county commissioner districts. I was privileged to represent rural counties in Colorado, Montana, and Wyoming, defending against those efforts.
CIVIL RIGHTS COSPLAYER JUSTIN PEARSON MELTS DOWN OVER TENNESSEE ‘COLOR-BLIND’ REDISTRICTING
In Blaine County, Montana, notwithstanding that no American Indian was denied the right to register, vote, or run for office; the newly elected commissioner won 98% of the American Indian vote; and the elected sheriff was an American Indian, a federal court ordered a racially gerrymandered district. In Alamosa County, Colorado, however, the federal district court agreed that Anglo and Hispanic voters were divided on socio-economic, not racial, lines. The Bush administration did not appeal our victory.
In Wyoming, a year after the American Civil Liberties Union contested the at-large election of commissioners in Fremont County, voters there elected the county’s first American Indian commissioner, a well-known rodeo rider who campaigned throughout the Vermont-sized county. Nonetheless, the federal district court mandated a racially gerrymandered district. On appeal, the Bush administration joined the ACLU in defending the constitutionality of using race to enforce the VRA.
Alito explained how a federal law, enacted to enforce a color-blind voting requirement, set forth in a race-neutral amendment to a color-blind Constitution with an equal protection clause, could mandate the use of race for voting districts. That is especially questionable because, as the court declares frequently, “[d]istinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality.”
First, the VRA escaped the “strict scrutiny” review the Constitution demands of claims of racial discrimination. Application of “strict scrutiny,” writes Alito, requires both “identified discrimination” and “a strong basis in evidence … that remedial action [is] necessary.” Although Alito cites to a 1989 opinion regarding Richmond, Virginia, that is, as to state and local governments, the court reached that holding, as to the federal government, in a 1995 case I argued for a Colorado man.
Second, the VRA evaded “strict scrutiny’s” requirement that the use of race be narrowly tailored to serve a compelling government interest; instead, over the decades, the court assumed compliance with the VRA provided a compelling reason for the intentional use of race. That assumption, which allows “race to play [a] part in government decisionmaking,” laments Alito, “represents a departure from the constitutional rule that applies in almost every other context.”
For that “departure,” Alito faults the court’s erroneous interpretation of Congress’s 1982 VRA amendments, “decided at a time when this Court often paid insufficient attention to the language of statutory provisions. … Instead of analyzing what the statute said, the opinion simply ‘quoted the text of amended §2 and then jumped right to the Senate Judiciary Committee Report.’”
Analyzing Section 2 to determine if the VRA “should be added to our very short list of compelling interests that can justify racial discrimination,” Alito concludes: it “imposes liability only where the evidence supports a strong inference that the State intentionally drew its districts to afford minority voters less opportunity because of their race.” Supreme Court Justices Clarence Thomas and Neil Gorsuch concurred, differing only in their view that the VRA never applied to how “States draw district lines.”
Gray is not the only official keen on reversing the VRA’s unconstitutional abuses. Assistant Attorney General for the Civil Rights Division Harmeet Dhillon responded to an X post from Sen. Eric Schmitt (R-MO) urging her to enforce the court’s ruling “nationwide” and “to end illegal racially-gerrymandered districts”: “Senator, we are ON IT.” Hence, racially gerrymandered commissioner districts may fall in Montana, North Dakota, and Utah. Much more is to come.
SUPREME COURT TOSSES RACIAL REDISTRICTING RULINGS IN MISSISSIPPI AND NORTH DAKOTA
Redistricting expert John B. Morgan contends states are forbidden from using race, given Alito’s holding that assuming racial group members “think alike, share the same political interests, and will prefer the same candidates at the polls” represents unconstitutional “racial stereotyping.” Writes Morgan, “with over 400 majority-black and over 200 majority-Hispanic state legislative districts, the bar on racial map drawing could reshape nearly one third of them.”
The wailing from the Left has only begun.
William Perry Pendley, a Marine, Wyoming attorney, and Colorado-based public-interest lawyer for three decades with victories at the Supreme Court, served in the Reagan administration, and led the Bureau of Land Management for President Trump.