Add The California Post on Google Gavin Newsom celebrated last year when Proposition 50 passed, gerrymandering California’s congressional map to favor Democrats. But the new California map should be struck down by the courts for the same reason the US Supreme Court recently blocked Louisiana’s map: Both were drawn using race, in violation of the US Constitution.
The Supreme Court doomed the Louisiana congressional map in Louisiana v. Callais because legislators in Baton Rouge had been explicit: They wanted to create a congressional seat specifically to elect a black representative to Congress.
Legislators in Sacramento were even more explicit about their racial purpose. Legislator after legislator spoke openly about their goal of creating “black districts” and “Latino-majority districts.” As in Louisiana, they garbled the Voting Rights Act, saying it mandated “voters of color be placed in districts” to elect racial minorities.
The Voting Rights Act does no such thing. Especially after the Supreme Court struck down the Louisiana congressional map, race can’t play a part in legislative line drawing.
In California, over and over and over, legislators boasted about racial retribution for redistricting efforts in Texas and other red states. Assemblyman Isaac Bryan, for one example, complained that a “black voter in Texas is worth one-fifth of the representation of a white voter in Texas. I did say three-fifths.”
All of this racially saturated rhetoric was used to push a congressional map that would wipe out five Republican seats in Congress. Partisanship might have been the outcome, but the intent was to allocate power on the basis of race.
The 15th Amendment to the Constitution makes that unconstitutional.
This week, a three-judge federal panel in Los Angeles will hear arguments from California and the Democratic Party that all of this is permissible behavior by a legislature. They claim partisanship was the intent of the California congressional maps approved in Prop. 50, despite the caustic racial rhetoric during the legislative debates.
The 15th Amendment is a rarely used provision, largely because legislatures so rarely display such open racial aims with such racially explicit language.
Ironically, California refused to ratify the 15th Amendment after the Civil War. In 1870, Gov. Henry Haight instructed the Democrat-controlled Legislature to reject the amendment’s prohibitions on denying the franchise based on race. The party’s state central committee circulated leaflets at the time, questioning if “Negroes and Chinamen” should vote.
It wasn’t until 1959 that California finally ratified the 15th Amendment, righting an old wrong.
California is now arguing that because the voters approved the congressional maps, the state should get a pass on all the racial rhetoric that featured in the legislative debates.
This is a dangerous ask, far worse than anything that a red state is accused of doing in redistricting.
“How many bubbles are in a bar of soap?” That’s what election officials asked black citizens when they wanted to register to vote in the Jim Crow south. The Supreme Court struck down these character tests. Other states like Oklahoma had grandfather clauses, which prohibited registration to vote unless your grandfather had also been registered. Again, these were struck down by the Supreme Court.
California’s dangerous position is that voters may absolve a racially motivated law if it merely passes a referendum. That’s corrosive and outrageous to our constitutional order. The majority was purposefully disconnected with the protection of fundamental rights.
The 15h Amendment and Voting Rights Act prohibit governments from allocating power on the basis of race. The Supreme Court in Callais took off the table any use of race whatsoever in line drawing except to remedy a specific Voting Rights Act violation.
If race motivated legislatures in any way, the subsequent map is unconstitutional.
Allocating power using race is wicked. We purchased the 15th Amendment with horrifying amounts of blood and carnage in the Civil War.
Our constitutional order has no place for legislatures drawing legislative maps openly for racial purposes, whether in Baton Rouge or Sacramento.
J. Christian Adams is a commissioner on the United States Commission on Civil Rights and the president and general counsel for the Public Interest Legal Foundation.
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