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.

Read more at Election Law Blog