First, a caveat: I try to be as optimistic as possible, no matter how bleak the circumstances, and it’s not my intent here to rain on your patriotic bunting as we approach our 250th national birthday.
Still, despite Lincoln’s aspirational statement at Gettysburg, America wasn’t founded on the proposition that all men are created equal. If that was true, Dred Scott would have won his case in the Supreme Court, instead of being told that he had no rights that white men had to respect. And there would have been no need for a Civil War that killed almost 700,000 Americans, or for the 13th Amendment that finally abolished slavery, or for the 14th Amendment that promised due process and equal protection for all, or for the 15th Amendment that granted former slaves the right to vote.
And the troubling reality is that despite all that, over the past 150 or so years, while Jim Crow ruled the land, more than 4,000 of our fellow citizens were lynched for trying to exercise those fundamental rights – with millions more terrorized to prevent them from voting, So finally, in 1965 Congress recognized this unconstitutional state of affairs and passed the Voting Rights Act, to require states with histories of undermining the rights of its Black citizens to obtain “preclearance” for new voting laws that might have that unlawful impact.
By most accounts, that supervision helped level the playing field for Black voters; however, that’s not what many states, primarily in the South (I’m from North Carolina), had in mind. So, they claimed that such measures were no longer necessary, because this was 2013 after all, and they had been toeing the line pretty well — duh, because they had to. Five justices of the Supreme Court bought that fiction, with Chief Justice Roberts saying the preclearance provision was outdated and “no longer responsive to current conditions.” In dissent, Justice Ruth Bader Ginsburg perceptively noted that you don’t put away your umbrella when it’s raining just because you aren’t getting wet.
Within days, the floodgates opened and ingenious new impediments were placed on Black voting rights. Closing polling places and reducing voting hours in Black neighborhoods were just the tips of the icebergs. OK, so you’d think maybe the five who bought that “things have changed” myth would have learned their lessons when the next voting rights case came along — but no. In fact, just a month ago, with more partisan justices now on the job, six of them decided that using racial factors to create districts where Black candidates might have a shot at a majority was itself unconstitutional — because basing any rights on race, even those of the disenfranchised, was banned by the 14th Amendment’s equal protection clause.
But here’s my question: If racial factors to impede Black voting have been a fact of American life — and indeed the law of the land — during most of the past 250 years, why is it now prohibited for states to take even baby steps toward leveling the electoral playing field when it comes to the most transformative of human rights? It’s like the law has had its knee on the necks of Black voters for generations, and now it’s illegal to force — even allow — them to be removed.
Look, I know reasonable people can differ on most legal issues, but is it really debatable to allow electoral redistricting for partisan political purposes, though not if racial disparities raise their Black heads? I’d like to think not, but that’s why I’m less than sanguine about where the last 250 years have brought us — and about what the years ahead at this Supreme Court have in store.
L. Phillips Runyon III has practiced law in Peterborough for 50 years and was the presiding justice of the 8th Circuit Court for 27 years.
