COLORBLIND JUSTICE: MINORITY VOTING RIGHTS AND THE UNDOING OF THE SECOND RECONSTRUCTION by J. Morgan Kousser. Chapel Hill: University of North Carolina Press, 1999. 590 pp.
Reviewed by Susan Gluck Mezey, Department of Political Science, Loyola University Chicago.
J. Morgan Kousser's Colorblind Justice is a thoroughly researched, exhaustively documented, and, ultimately, very convincing indictment of the role of the Supreme Court in the battle over equal voting rights. Kousser, a historian who served as an expert witness in numerous voting rights actions demonstrates a historian's skill as well as a practitioner's knowledge in explicating this complex subject.
The major thesis of this work is that the First Reconstruction failed because the political institutions, including -- and perhaps especially -- the courts, declined to enforce the federal post-Civil War laws that had enfranchised the former slaves. In contrast, the Second Reconstruction, beginning at the end of the Second World War, succeeded because the political institutions, courts included, supported the extension of black suffrage through generally expansive interpretations of the Voting Rights Act, as amended, and the Reconstruction Amendments. However, the author maintains, that success is now threatened, in large part, by the Supreme Court's interpretation of the "proper" role of colorblindness in electoral practices, an interpretation that has contributed to the rollback of the gains in equal voting rights that had been won by minorities over the last thirty years.
The book is largely devoted to a series of case studies that demonstrate the long history of racial politics in the U.S. and show how racial minority groups were prevented from exercising any political clout through the ballot. In meticulous -- although at times overwhelming -- detail, the case studies examine electoral laws and redistricting in Los Angeles, Memphis, Georgia, North Carolina, and Texas over the last thirty to forty years. The case studies provide the basis for his refutation of Justice O'Connor's assertion in SHAW V. RENO (1993) that racial considerations have not previously played a role in the nation’s redistricting and electoral policy decisionmaking.
In chapter 1, Kousser traces the history of the two Reconstructions and shows how in the first era, whites used a combination of tactics, including violence, fraud, and legal disenfranchisement, to suppress African American suffrage and officeholding. In the second era, which he dates from the Supreme Court's decision in SMITH V. ALLWRIGHT (1944), judicial and legislative support for black voting rights prevented a recurrence of the experiences of the earlier period. The threat to the Second Reconstruction, he argues, started to emerge in the mid-1990s, aided and abetted by SHAW and the Republican takeover of Congress in 1994.
Chapter 2 on Los Angeles County is intended, in part, to demonstrate that voting inequality extended beyond the South and affected groups other than African Americans. He shows that district lines were drawn to facilitate the election of select members of the County Board of Supervisors, a body exclusively dominated by white males until 1991. Contrary to O’Connor’s claim, he argues, redistricting decisions reflected a pro-Anglo and pro-incumbent bias through the early 1980s at a huge cost to Latino representation. And he points out that no thought was given to the shape of the districts carved out by politicians who were primarily concerned with keeping their jobs.
In chapter 3, he surveys electoral practices in Memphis where white political leaders went to great lengths to preserve their supremacy in office by continually changing the rules of the electoral game. The designated slot, the runoff election, and the at-large election all played a role in maintaining white power and all, he argues, were designed to minimize the impact of African American votes at the ballot box.
	Chapter 4 presents evidence showing that when Georgia was forced to abolish its county unit system, it sought to reduce the influence of bloc voting, a practice understood by all to be synonymous with black voting. Kousser presents and rejects four non-racial alternative hypotheses to explain the policy changes occurring in the early 1960s in Georgia, ultimately proving that the new electoral practices were adopted for racially discriminatory purposes.
Chapter 5 provides an analysis of more recent electoral changes in North Carolina, changes that ultimately led to SHAW. He presents evidence of racial discrimination against blacks in drawing district lines before 1991 as well as evidence suggesting that the size and shape of districts were never important variables. Indeed, he emphasizes that the difference between redistricting in 1981 and 1991 reflected the use of an "effects" test by the Court, a result of the 1982 Voting Rights Act amendment. When the North Carolina state legislature, in response to the U.S. Justice Department prodding, created two minority opportunity districts, it did so for a number of non-racial reasons as well, namely to protect Democratic incumbents and avoid potential litigation.
In chapter 6, he details the often bizarre methods by which district lines were drawn in Texas by politicians with the mixed aims of protecting incumbents, seeking partisan and ideological gain, and keeping minority influences to a minimum. It was, he insists, hardly race-neutral, as O'Connor would claim in the Texas redistricting case, BUSH V. VERA (1996). At last in 1991, he says, there was race-conscious redistricting that was, at least in part, intended to increase black electoral power by creating three minority opportunity districts. But, he stresses, race was never the sole motivating factor after 1991 either; as before, partisan, personal, and ideological -- as well as racial considerations -- all influenced the decisionmaking process as well as the final outcomes.
The last three chapters, in which Kousser recapitulates the thesis of the book, bring us to the present and assess the future. Chapter 7 offers an in-depth exploration of a century of equal protection jurisprudence, the standards for judging discriminatory intent and effect, and the critical difference between the two. It concentrates particularly on electoral laws and points out the inconsistency and irregularity of the various tests the Court has applied to reapportionment and voting dilution cases. He complains that the Court, among other things, has not created a clear standard to determine discriminatory intent in voting rights cases. The chapter concludes with his suggested five "rules" for assessing intent in electoral laws and practices.
Chapters 8 and 9 contain a strong indictment of the Supreme Court, describing its decisionmaking as "revolutionary," "contradictory," and "incoherent" (p. 368). Kousser carefully documents how in the main the Court's earlier Voting Rights Act decisions and congressional efforts extended voting rights for minorities, and how through willful misreading of precedents and legislative intent, the "radicals" on the Court are now undoing the benefits of these victories. He is sharply critical of the use of law to protect white privilege, manifesting outrage at the way in which the Court has subverted the intent of the Voting Rights Act and the Fourteenth and Fifteenth Amendments. Instead of being used to promote equality and fairness, he shows, they are being used to impose a new meaning of colorblindness that was never intended by the framers.
He shows how Court majorities, typically consisting of O'Connor, Kennedy, Scalia, Thomas, and Rehnquist -- in ruling after ruling -- have ignored the history of racial discrimination in the nation, specifically, the role that race played in electoral arrangements. Indeed, he argues, race has always been a crucial factor in such decisionmaking and it was only after 1991 that minorities' voices were finally heard in the redistricting process. Notwithstanding O'Connor's assertions to the contrary, he shows that race, incumbency, and party were the traditional criteria for formulating electoral laws and practices and that the shape of a district was of little concern. He claims that by taking an almost categorical position against the use of race in drawing district lines in SHAW and its progeny, the Court refused to let minorities reap the benefits of their hard-won political battles.
There is a lot to absorb in this book, and at times, the reader may become somewhat lost in the myriad of details. This is certainly not a book for undergraduates, and only the most dedicated graduate students will be able to make their way through it. This will be their loss, however, for the author’s critique of the current Supreme Court's "radical" interpretation of equal opportunity law is an important one. Kousser demonstrates that whatever its theoretical virtues may be, at this moment in history, colorblindness in electoral laws and practices is antithetical to racial and ethnic equality. Race must be taken into account to avoid continuing the racially discriminatory policymaking of the past. Not surprisingly, because Kousser is a historian, this book will likely resonate more with historians; however, his cogent analysis of constitutional law and voting rights policy speak to a number of disciplines.
REFERENCES
BUSH V. VERA, 116 S.Ct. 1941 (1996).
SHAW V. RENO, 113 S.Ct. 2816 (1993).
SMITH V. ALLWRIGHT, 321 U.S. 649 (1944).