Crum: Racially Polarized Voting and the Fifteenth Amendment

The following is the fourth in a series of guest posts by Travis Crum on the 150th anniversary of the 15th amendment:

In yesterday’s post, I outlined how originalist Justices have conflated the Reconstruction Amendments and applied Fourteenth Amendment principles in Fifteenth Amendment cases. In today’s post, I challenge the application of colorblindness to the Fifteenth Amendment.

In recent years, the conservatives on the Court have questioned the legitimacy of anti-discrimination statutes that impose liability without a showing of discriminatory intent. According to the conservatives, discriminatory-effects standards unduly inject racial considerations into the decision-making process, raising constitutional concerns. This critique evolved from the colorblind view of the Equal Protection Clause and has now migrated to the voting rights realm. 

As applied to redistricting, the colorblind approach targets race-based redistricting and Section 2’s requirement that voting be racially polarized. The Court has opined that race-based redistricting oftentimes relies on an “impermissible racial stereotype” that “members of the same racial group … share the same political interests and will prefer the same candidates at the polls.” And in his oft-quoted concurrence in Holder v. Hall, Justice Thomas stated that the “underlying premise” of “every minority vote dilution claim” is “that the group asserting dilution is not merely a racial or ethnic group, but a group having distinct political interests as well.”  The colorblind critique, therefore, treats recognition of racially polarized voting as a constitutional problem and endangers Section 2’s attempts to ameliorate the predictable effects of racially polarized voting.

Contrary to what the colorblind critique assumes, racially polarized voting was a feature—not a bug—in the passage and ratification of the Fifteenth Amendment. Whereas the Founders failed to foresee the rise of party politics, the Reconstruction Framers were intimately familiar with partisanship. Indeed, the Reconstruction Amendments were passed on nearly uniform party-line votes. Prior to the Fifteenth Amendment, Republicans had already received overwhelming support from newly enfranchised black voters in the former Confederate States and expected that support to continue. In fact, in pushing for the Fifteenth Amendment, the Reconstruction Framers were explicit in their belief that blacks and whites in the South and Border States had divergent political views and voted as racial blocs.

The Reconstruction Framers, moreover, understood that the right to vote is more than an individual right to cast a ballot. Political rights are exercised collectively and votes need to be aggregated to have real-world meaning. And once empowered by the ballot, blacks could defend their political interests and safeguard their civil rights.

Thus, the Fifteenth Amendment’s historical context turns the colorblind critique on its head. Rather that treating recognition of racially polarized voting as a constitutional taboo, the Reconstruction Framers were attentive to the realities of racially polarized voting. This insight puts racial vote-dilution claims—and their predicate findings of racially polarized voting—far closer to the heart of the Fifteenth Amendment than they are under current doctrine. And Congress’s decision to counter the predictable consequences of racially polarized voting by amending the VRA in 1982 to encompass a discriminatory-effects standard and prohibit vote dilution should be entitled to considerable deference.

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