Members Only | October 25, 2022 | Reading Time: 4 minutes

The Republicans want judges to define ‘Black’

We’ve been here before. It was bad then. It’s bad now.

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America has a long history of trying to define race.

Very badly. 

There has never been a consistent definition applied universally and non-arbitrarily. That’s not surprising. Race makes no sense. 

The concept developed post-hoc as justification for othering and oppression in the service of hierarchical desires and economic need. 

While we know race is a social construct and nonsensical, we can’t ignore race and the legacy of racial distinctions without reproducing the faux neutrality central to white supremacy. Pretending the laws that don’t mention race are neutral usually results in privileging the white cishet men who have historically made the same law. 

The Republicans and their allies hope to take the country back to the time of asking judges to define race. That hope lies in the Supreme Court case concerning gerrymandering, Ardoin v. Robinson.

While we know race is a social construct and nonsensical, we can’t ignore race and the legacy of racial distinctions without reproducing the faux neutrality central to white supremacy. Pretending the laws that don’t mention race are neutral usually results in privileging the white cishet men who have historically made the same law. 

Since the end of Jim Crow segregation, conservatives have had to enforce racism through “facially neutral” legislation (that is, laws that don’t mention race). They have had to rely on the discriminatory outcomes of neutral law that’s still racially targeted, such as voter ID requirements or mandatory minimum sentencing, all under the guise of “colorblindness” and the promise that the law does not see race.

The response from those concerned with actually addressing racism in law has been to argue for “race conscious” laws that might explicitly acknowledge race but only in order to address racial harm. 

The Voting Rights Act was a gold standard for race-conscious law in that it required the consideration of race when examining the impact of congressional district maps or voting restrictions. 

That it worked meant it has also been repeatedly targeted by the Republicans. In 2013, the Supreme Court struck down two key sections of the VRA in Shelby v. Holder. Now, the Republicans are trying to weaken section 2 of the VRA. That section prohibits any voting procedures that discriminate based on race. 


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Section 2 is used for lawsuits claiming “vote dilution,” which typically concerns redistricting maps. The VRA requires congressional maps be drawn in such a way as to not “dilute” Black voting power. 

In defending a Louisiana congressional district map in Ardoin v. Robinson, the Republicans are trying to restrict the definition of “Black,” which could definitely serve to dilute Black voting power. 

Rather than counting everyone who checks the “Black” box as Black (the current definition), the Republicans want to limit those counted as Black as only including people who only check the “Black” box – excluding anyone who checked multiple ethnic or racial boxes.

Racial definitions have always been imposed on racialized populations. Courts defining who counts as “white” or “Black” is not only arbitrary and nonsensical but an enactment of white supremacy. 

The only way to address racial harm without reproducing white supremacist racism is through relying on the self identification of those within the racialized groups. The court redefining Blackness is trying to subordinate Black people and define their group identity for them. Blackness must be defined by Black people.

While, technically, this restrictive definition would still rely on the self-identification, it would limit the definition of “Black” to not include anyone who might be Black and something else. 

It would limit inter-group solidarity and likely serve old racist goals. Reducing Blackness to some kind of Black purity of one race forces racial conversations back to rigid binaries and made-up race science.

Race is an arbitrary social construct, not a rigid binary. Mixed race people have always threatened white supremacy, because they challenge the race-science claims that race is essentialist and rigid. 

They also invoke absurd concerns for white people that they could be around a Black person without really “knowing” it. 

In miscegenation cases, a white spouse could accuse his spouse of fraud if it was determined the spouse was mixed race and “passed” to marry a white person (this could also be used in states without miscegenation statutes to get out of an interracial marriage). 


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Such claims support Cheryl Harris’ argument that whiteness is a type of property in white supremacist society. Whiteness as property only works in opposition to Blackness and is strengthened by restrictive definitions of Blackness imposed on Black people by white people. 

During slavery and Jim Crow segregation mixed race people were automatically included in Blackness, because it served economic goals and protected white purity from “pollution.” Interrogation into sufficient blood quantum for racial distinction will always serve white supremacy and reinforce race as scientific essentialism.

Lower courts have found the more restrictive definition wouldn’t change the Louisiana map, but adopting a more restrictive definition for Section 2 claims could have far-reaching consequences. 

If mixed race people aren’t counted as “Black” for the purposes of voter discrimination, or dilution claims, what are they counted as? 

If they are counted as white, they cannot make voter discrimination or dilution claims at all despite the likelihood that they are still experiencing such discrimination. It’s unlikely such a definition would be restricted to redistricting maps. 

With conservative justices questioning due process claims under the 14th Amendment, it’s possible even Loving v. Virginia is in danger. 

Before interracial marriage was legalized, anti-miscegenation statutes could be read as restricting marriage for all-mixed race people. This argument was used by those challenging the statutes. 

While it wasn’t successful, the claim was thrown out because the court was not presented with a mixed race person trying to marry another – not because judges found the claim ridiculous. 

In 1982, Congress amended Section 2 to include any law that has a discriminatory impact on voting to be unlawful in response to Mobile v. Bolden. In Mobile, the Supreme Court ruled that for laws to be in violation of the Voting Rights Act the legislators must have had an intent to be discriminatory if the law was racially neutral. 

A more restrictive definition of “Black” would make the discriminatory impact of a law smaller. Therefore excluding mixed race people from Blackness could make discrimination claims from those included in Blackness more difficult to prove.

This critical race theory (yes, I said it) analysis is necessary to understanding the danger that we face if the Republicans take us back to a time when the court imposed rigid race binaries and enforced definitions of race on marginalized groups. 

We must defend voter power every chance we get.


Mia Brett, PhD, is the Editorial Board's legal historian. She lives with her gorgeous dog, Tchotchke. You can find her @queenmab87.

2 Comments

  1. Dan Butler on October 25, 2022 at 10:25 am

    Amazingly, the fight against the Voting Rights Act is coming from the former confederacy! The losers of the Civil War are STILL trying to control the narrative concerning “race”. Great Article.

  2. Dan Rahm on October 31, 2022 at 11:39 am

    .
    Pro Tip: Watch your quantifier scope

    The following paragraph was completely opaque after my first three or four readings —

    “Rather than counting everyone who checks the ‘Black’ box as Black (the current definition), the Republicans want to limit those counted as Black as only including people who ONLY CHECKED the ‘Black’ box – excluding anyone who checked multiple ethnic or racial boxes” —

    Until I finally realized (I know — slow me) that what you meant was ” . . . the Republicans want to limit those counted as Black as only including people who CHECKED ONLY the ‘Black’ box . . . ”

    (“ONLY CHECKED the ‘Black’ box” could be construed as “excluding anyone who x’ed, circled or blacked in the ‘Black’ box”)

    Thank you for sharing your insights, analysis and experience here
    .

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