Morgan Kousser is a historian well known for his previous book, The Shaping of Southern Politics: Suffrage Restrictions and the Establishment of the One-Party South, 1880–1910 (Yale University Press, 1974), and numerous other studies on the racial dimension of American history. In Colorblind Injustice, he deals with more contemporary matters of race and warns us that history could be repeating itself. Colorblind Injustice is essentially two books in one. The lengthier one provides guidelines for, and examples of, marshalling evidence to demonstrate the “intent” behind decisions and actions, especially as they concern the selection of the rules under which elections are conducted. This topic could not be more timely given the Supreme Court’s recent adoption of the “predominant factor” test as a trigger for requiring “strict scrutiny” of what the Court calls “racial gerrymanders.” The second, shorter book, which envelops the first, is a scathing critique of Shaw v. Reno (1993) and its progeny, the cases involving majority-minority districts through which this new approach to judicial oversight of electoral districts has been adopted.
Direct evidence of malign racial motives in the adoption of election rules, in the form of “smoking gun” statements about how some rules will adversely affect minorities, is no longer to be expected in American politics. Such intentions therefore will usually have to be marshalled through circumstantial evidence. The Supreme Court has never provided clear guidelines for proving intent through this type of evidence. Kousser tries to fill the void by suggesting explicit evidentiary guidelines for inferring intent and demonstrating them in application. Unfortunately, this is done in reverse order, with the applications, in the form of five case studies, coming before his discussions of the guidelines themselves. Readers might find it beneficial to read the guidelines (provided in Chapter 7) before reading the case studies (Chapters 2 through 6).
Kousser states that “persuasion is in the details” (7). And details he does provide! Indeed, the case studies are so detailed that one wishes they had a playbill identifying the actors and their roles, in order to keep the many players and their actions straight. The first case involves what Kousser identifies as “real racial gerrymandering” (in contrast to the Supreme Court’s recent application of the expression), the adoption of supervisory districts in Los Angeles County that diluted the voting strength of the Latino minority. The second concerns the use of at-large elections to designated places or posts in Memphis and the subsequent addition of a majority vote requirement (with runoff elections) to decide who wins each at-large seat. The third case involves the adoption of a statewide majority vote rule in Georgia in 1964. These three cases involve election rules that Kousser finds were adopted to impede the ability of minority group voters to elect representatives of their choice. In contrast, the fourth and fifth focus on the post-1990 revision of congressional district boundaries in North Carolina and Texas. There Kousser examines the mixed motives (including incumbent protection and partisan advantage) behind the adoption of districting plans that contain some districts meant to empower minority voters.
The case studies amply demonstrate why Kousser argues that there is “no mechanical test” for determining intent, as “the quality and quantity of information available” will vary greatly from case to case (346). In Memphis, he reports, “the number of incriminating statements and reports was so large that the problem became choosing which ones to leave out” (138). In other settings, however, the evidence for intent was much less direct. Kousser examines, for example, the historical context in which the changes in electoral rules were made, the background of the key participants, and other actions taken by those participants. These are just three of the ten factors that he identifies as those to examine in determining intent.
While unable to provide a “mechanical test,” Kousser does try to make the inquiry into intent more “systematic.” This is not systematic in a replicable sense, but it is an attempt to make the inquiry “more open, explicit, and comprehensive,” and therefore to make it easier for others to evaluate the evidence (365). Kousser is also very insistent that the inquiry include an examination of alternative explanations for decisions and actions, with evidence that is inconsistent with the inferred intent explicitly acknowledged and evaluated with equal care. While Kousser does not fantasize that his guidelines will eliminate conflicting interpretations, especially in the context of litigation, he does want judges and others to be forced to confront evidence in a more impartial manner, noting that this is an area in which there may be “widely disparate results, depending on judges’ preconceptions and the inconsistency in their treatment of evidence” (363).
The second part of this book is the critique of Shaw and its progeny. Despite this part being much shorter than the first, it will no doubt dwarf the first in the amount of attention it receives as Kousser’s critique is harsher than most. A five-member majority of the Court has adopted a district-specific approach to the concept of “gerrymandering” in these cases, one that uncouples that concept from the traditional notion that gerrymanders waste votes of some targeted group. Gerrymandering in these decisions is essentially deviations from so-called traditional districting principles. If these principles are subordinated to racial considerations in the construction of a district, even benign racial considerations, then that district is, by itself, a racial gerrymander that must be strictly scrutinized by the judiciary. The strict scrutiny test of course is popularly described, in application, as “strict in theory, fatal in fact.”
Kousser is afraid that the Second Reconstruction is coming to a screeching halt under these decisions. He pulls no punches in stating “Shaw I and its progeny are wrong—as wrong as Plessy, as wrong as Dred Scott” (465). While many have expressed concerns that these decisions will result in a serious retrogression in minority electoral opportunities, especially in the redistricting to follow the next census, Kousser sees an even more threatening future in which “as many as half of the nation’s elected minority officials” could be unseated (13). He attacks the conservative majority on the Court for behaving in a partisanly selective manner and for doing so under “a facade of equality-talk” (395). He contrasts the Court’s response to challenges to election districts in North Carolina, Georgia, and Texas with those involving districts in California and Ohio. The majority invalidated the districts in the first three states but could not find racial gerrymandering in the latter two, even though, according to Kousser, race had been used as a referent in the design of the districts “just as blatantly” in these states as in the other three (436). The difference that mattered to the Court, he maintains, was the expected partisan consequences of the plans. In North Carolina, Georgia, and Texas, the plans were drawn by Democrats to help Democrats. New majority-minority districts were created while white Democratic incumbents were protected. In California and Ohio, the plans were authored by Republicans, and while creating majority-minority districts, the plans were intended to help Republican candidates. As Kousser puts it, the five-member majority’s “uncompromising adherence to ‘colorblindness’ collapsed when the interests of the Republican party were at stake” (437).
Redistricting is no longer just a political thicket. Shaw and its progeny have created a conceptual thicket as well. The peculiar notions of standing, injury, and generalized harm adopted to sustain the Court’s notion of gerrymandering, as well as the ambiguous standards for evaluating particular districts that it has articulated, certainly provide room for numerous interpretations of what the Court has done and why. Many, therefore, will quarrel with Kousser, as he does with them in this book. But one need not agree with all of Kousser’s interpretations to be persuaded that the Court’s new concern with the design of districts has created a conceptual thicket to rival the political one and that it will serve as an excuse, during the next round of redistricting, to eliminate many (but not most) of the majority-minority districts currently in place.