02/03/2015 09:24 am ET Updated Apr 05, 2015

Using Race (Again) in the Struggle for Political Mastery

After their victories in 2010 state legislative elections, Republicans reapportioned a number of state legislatures. They drew districts so that, for later elections, a minority or slim majority of Republican voters for Congress or the state legislature could produce a super-majority of Republican legislators. Since most blacks vote Democratic, Republican legislators often gerrymandered using race. They claimed justification under the Voting Rights Act. North Carolina is an instructive example of the technique.

According to Thomas Edsall, some Republicans have privately expressed the goal of creating a white (majority) party and a black (minority) party.

In North Carolina in 2011, newly victorious Republicans packed black voters to create super-safe black legislative and congressional districts. They used dual quotas--which might be euphemistically described as "goals" or "targets."

The first racial quota required congressional and legislative districts to have at least a 50 percent black voting age population. This was done whether or not black candidates could win their former districts handily without the infusion of more black voters. The scheme drained blacks from other districts where they had helped to elect white Democrats. The result was a few more black Democrats and many fewer white Democrats in the legislature. Meanwhile, Republican districts became still whiter.

The second racial quota sought a percentage of state legislators proportional to the percentage of the black voting age population in North Carolina. Pursuing its proportional-representation quota, the Republican majority drew white North Carolina State Sen. Linda Garrou (D-Forsyth) out of her prior district, even though she had been the preferred candidate of black voters. The state senator in charge of redistricting admitted this move would not have been taken had Senator Garrou been a black incumbent. Their racial quota required a black, not a white, Democrat.
Racial districting helped to undermine a multiracial coalition and left blacks and the surviving white Democratic legislators a longterm-impotent-legislative minority.

The dual quotas are in tension with the language of the Voting Rights Act--on which the legislature and North Carolina court relied--since it only requires that blacks have an equal opportunity to elect candidates of their choice (of whatever race) and rejects mandated proportionality. Using quotas (or goals or targets) to herd more black voters into districts where black candidates could win handily without the racial infusion is in tension with some of the muddled Supreme Court precedent. It is also in grave tension with the Equal Protection clause of the 14th Amendment.

At any rate, defenders of the quotas can also claim that the resulting racial packing of blacks is OK since motivated by permissible political motives, not by racial ones. The quotas operate to disrupt a multi-racial political coalition by packing black Democrats and targeting white Democrats by depriving them of black supporters. Still, this political use of race is claimed to be permissible. Supposedly, this is not like the bad old days in the South, when black voters were being disadvantaged and then virtually eliminated for racial reasons.

The truth is more complex. In those bad old days, the target was a white-black Republican political coalition. Then an anti-coalition party, that at first called itself Conservative and then (ironically) Democratic, targeted blacks--at first by "neutral" election laws that disproportionally disadvantaged them. The anti-coalition party targeted blacks because they voted Republican and because they were the most vulnerable part of a bi-racial coalition.

Segregation itself served political purposes--to brand blacks as a pariah race. Race was simply a tool in the struggle for political mastery.

For many years the U.S. Supreme Court rejected most attacks on disfranchising Southern voting laws. By around 1900, election laws, violence and fraud had eliminated blacks from the political process in the South.

In the 19th and early 20th centuries, in addition to tolerating legal devices to destroy the black-white political coalition, the high court also undermined congressional efforts to punish political terror that had been aimed at white and black Republicans. In a circuit court opinion, Supreme Court Justice Joseph Bradley said that a congressional anti-Klan law could not reach Klan-type political terror if the terrorists' motive was political rather than racial. In the South, white as well as black Republicans were murdered. The motive was political.

In United States v. Cruikshank (1876) the Court denied Congress the power under the 14th Amendment to punish "private" politically inspired terrorists--those who were not state actors.

With a few exceptions, until the 1940s, the record of the Supreme Court on voting rights was dismal.

At one time, in effect, Supreme Court precedent treated bans on interracial marriage as OK because, while blacks could not marry whites, whites also could not marry blacks. So, supposedly, both races were treated equally. Finally, the Court saw the discrimination as against interracial and in favor of one-race couples. Using racial quotas to attack multi-racial political coalitions should fare no better.

If they are to be true to the better angels of our nature, courts need to strike down racial quotas when the obvious and intended effect of them to disrupt multiracial political coalitions. In the bad old days, election laws should not have been saved because they disadvantaged Southern Republicans and their biracial coalition. Today, they should not be saved because they disadvantage Democrats and their multiracial coalition.