On Wednesday this week the Alabama redistricting case will be argued to the Supreme Court. The political and legal issues involved in redistricting can be complicated, but the role for race is simple: It should not be considered.
In whatever opinion it writes in this case, the Court should make clear that Section 2 and Section 5 of the Voting Rights Act — and the Court’s own past jurisprudence — should not be interpreted in a way that encourages race-based decisionmaking. Some Republicans may want the VRA to require racial gerrymandering of one sort, and some Democrats may want it to require racial gerrymandering of another sort, but the Court should make clear that, no, the VRA should not be interpreted to require racial gerrymandering of any sort.
As a matter of both constitutional and statutory law, the government should not consider race when it is drawing voting lines. It may not be irrational to use race as a proxy for commonality of interests on some issues, or voting behavior, but the Constitution sets a higher standard than that when the government uses racial classifications. There is no compelling reason for considering race, especially when weighed against the inherent costs of government race-based decisionmaking. And any interest the government has can be served by looking beyond race — that is, by not using race as a proxy — and looking to the underlying reason for individuals’ backgrounds and perspectives. The use of race will never be narrowly tailored.
The costs of condoning race-based redistricting, by either party, are very high. It encourages racial essentialism, racial appeals, racial approaches to policymaking, and identity politics generally. Conversely, it discourages interracial coalition building and broader, nonracial appeals. It becomes more and more untenable as America becomes more and more multiracial and multiethnic. Instead of Queens, Brooklyn, the Bronx, Manhattan, and Staten Island, are we to draw the black borough, the white borough, the Asian borough, the Latin borough, and the Arab American/American Indian borough? Conversely, if normally a geographic entity with strong commonality of interests would not be divided, why should it be permissible to divide it because it happens to be racially homogeneous?
When redistricting officials are deciding when to zig and when to zag, that decision should not hinge on the skin color of the person who lives in the house.
The Court must bear in mind, too, that if gerrymandering is permitted to benefit this racial group, it must also be permitted to benefit that racial group – nothing else will work as a constitutional matter, and nothing else will work in a country where any group will be a minority somewhere. If it is permissible to gerrymander to ensure a particular outcome for blacks, then it must be permitted for whites; if it is permitted for Latinos, it must be permitted for Asians. If we recognize commonality of interests for black people and are willing to accept and even encourage appeals to them as black people, then we must accept such appeals to Latinos and Asians – and whites.
— Roger Clegg is president and general counsel of the Center for Equal Opportunity, and Meriem L. Hubbard is a principal attorney with Pacific Legal Foundation; CEO has joined an amicus brief filed by PLF in this case.