In law school I wrote a research paper that declared Brown v. Board of Education did the country a disservice. No doubt, it is a monumental decision that put an end to the “separate but equal” lie and vanquished the worst ruling (so far) in the country’s history, Plessy v. Ferguson.
But it also overshadowed another case, brought a decade before by the same attorney — future Supreme Court Justice Thurgood Marshall — to protect the right to vote for Black Americans. In 1944 Smith v. Allwright eliminated “white primaries” in the South.
Before Smith, Democratic parties in the South (or more properly the postbellum anti-Lincoln parties) barred Black Americans from voting in their primaries. Because the winner of the primary almost universally won the general election in the fall, this effectively disenfranchised Black voters.
Smith exposed the insipid racism and condemned it to history’s wastebasket. Or so we thought.
It laid the groundwork for Brown as well as the Civil Rights Acts of 1957 and 1960 (which focused on voting rights), the Civil Rights Act of 1964 (which barred discrimination based on race) and the Voting Rights Act of 1965. The single greatest spurt of civil rights progress since the Civil War can be traced to that decision.
In my paper I argued that as important as education is, the right to vote — unabridged, unencumbered and undiluted — is the fundamental right in a democracy. Consequently, Smith should trump Brown in the pantheon of landmark decisions. Today, I am afraid I may have been more right than I realized.
Without so much as acknowledging Smith, the current Supreme Court just gutted the spirit of that opinion.
The current iteration of SCOTUS has been eyeing the Voting Rights Act in opinions, concurrences and dissents for over a decade. With a 6-3 advantage on the court, all they needed was a case. Louisiana gave it to them.
In Louisiana v. Callais, the Supreme Court effectively endorsed racial gerrymandering. As long as the map makers keep their racism limited to a wink and nod and publicly state the lines were drawn for partisan purposes, they can set the country back eight decades.
Of course the majority claimed they left the Voting Rights Act intact. But that is like saying a disassembled car is still a car. The parts might be there, but you cannot drive it anywhere. As Justice Elena Kagan rightly noted, Section 2 of the Voting Rights Act — which barred racial gerrymandering whether intentional or unintentional or simply unstated — now becomes a “dead letter.”
Unless the Grand Wizard of the KKK draws the maps, it is unlikely Section 2 will ever be implicated. And even then it might not matter.
It did not even take a week for southern states to take advantage of the ruling. Tennessee went first by chopping up Memphis — which has a Black population percentage of over 60%, making it one of the highest in the nation — into three different congressional districts. The Black population in Memphis went from having a minority-majority district where its voice mattered to a minority in each new district.
In redistricting terms, it is called “cracking” a population. In lay terms, it is just cracked.
Now each of those districts leans heavily toward Republicans. In districts like that, where one party has a substantial advantage, the general election is a foregone conclusion. Consequently, the primary election becomes the most critical.
Because Tennessee is a closed primary state — the only people who can vote in a party’s primary are voters registered with that party — only Republicans will be choosing who will eventually go to Congress. And because Black voters are overwhelmingly registered as Democrats in Tennessee and Memphis, they will not have a say.
Does that sound familiar?
Tennessee will not be the last state to celebrate the SCOTUS decision. Indeed, states across the South have already set plans in motion to redraw their own lines. Black Americans in those states will be split, cracked and left on the side of the road. We are only a few firehoses and billy clubs away from a return to the Jim Crow era.
In case you believe that is an embellishment, remember that it was the Voting Rights Act that we thought put the nail in the coffin for Jim Crow laws. Apparently the nostalgic majority on the Supreme Court decided to play necromancer and raise them from the dead.
While the immediate aftermath of Louisiana v. Callais has been on the electoral impact it will have on the redistricting wars for control of the House of Representatives — Mike Littwin wrote a terrific column on why Colorado must play its part — long term it is secondary.
What we really witnessed was an assault on rights that took nearly a century to obtain, stood for almost another century, but crumbled to the whims of a court unburdened by history, justice or decency.
Smith v. Allwright helped set America on a path toward equality. In fits and starts, we remained on it for decades. But now the Supreme Court has spun the wheel and sent us back in the opposite direction.
Mario Nicolais is an attorney and columnist who writes on law enforcement, the legal system, health care and public policy. Follow him on BlueSky: @MarioNicolais.bsky.social.
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