SADOW: Federal Court Can Fight Racism On Monday

Tomorrow a Baton Rouge federal district court begins hearing a case that has the potential to turn upside down civil rights jurisprudence and ratify an entirely noxious transformation of values in American society.

It’s the continuation of an issue first brought up a couple of years ago that gained legislative scrutiny this past session. In the last round of reapportionment of city-parish courts, East Baton Rouge had maintained its five districts, which in the present day have three with majority white constituencies and two majority black (although cases are not placed on dockets by geography; any of the judges may hear cases from any part of the city-parish). Some have complained that with the area having about 55 percent black population that this arrangement was unfair, if not illegal, in some way, and filed suit accordingly.

Since judicial offices are not considered policy-making institutions and that any judge may hear any case, federal constitutional imperatives that channel state and local governments into drawing district lines for other institutions place greater scrutiny on those outcomes that prompt these governments typically to use race as a major consideration into this districting, with the creation of “majority/minority” districts, a scrutiny lacking when it comes to judicial redistricting. However, even with the higher burden of proof suits leading to consent decrees in the past have caused the state with jurisdictions with significant minority populations to follow the same strategy with those judiciaries, with perhaps the most famous example in Louisiana being that of its Supreme Court.

But the problem from the perspective of those who see the present city-parish arrangement as violating the constitution – specifically, voters’ rights in that blacks have theirs diluted – is that intent to discriminate must be demonstrated. Thus, federal law could be used to introduce federal oversight to change the current plan to one presumably based upon have three majority/minority districts, and have it reviewed for at least (the suit asks) the next decade. However, there’s no evidence on the surface that the Legislature, responsible for this, intended to discriminate nor that this provides any obstacle to blacks voting or getting elected to these offices.

So the plaintiffs have come up with an inventive line of reasoning for square the circle. Statistically, most whites vote for white candidates, and most blacks vote for black candidates. Further, typically blacks eligible to vote actually do so at lower rates than whites. Thus, they say, not only does this “rig” election of judges in the current system so that only 40 percent of judges can be blacks where blacks make up 55 percent of the population, but that even going to an at-large system, as was used up until two decades ago, is unsatisfactory because too many blacks disproportionately may not vote, in this constrictive view.

Which begs the obvious question: nobody is forcing anybody to vote for anybody, or even to vote at all. If certain outcomes occur, they were because of voluntary actions taken by individuals facing no coercion to act in a certain way or not at all. Which introduces the insidiousness of the plaintiffs’ argument: it claims that whites are forced to vote for white candidates and blacks for blacks and that fewer blacks are forced not to vote because of some undefined, nebulous, latent discriminatory effect existing in society that cannot be measured directly (or perhaps if attempted to be measured is met with duplicity) but which nonetheless permeates society so thoroughly that we never may be rid of it.

More specifically, a “totality of circumstances” suggests that society continues to “oppress” blacks to this day to the detriment of voting rights. Disadvantages in education, jobs and health that can hinder African Americans’ ability to vote or generally participate in democracy can be used to attempt to show this by arguing what is observed by these is a product of a discriminatory system. To show that there is intent by whites in creating such a system, information about the city’s history of voting discrimination, the number of black candidates who have been elected outside predominantly black districts in Baton Rouge and the number of African Americans who ran for office can be introduced.

In other words, accepting this relies upon a common tactic used by its advocates who say race must be taken into account in the making of laws which define discrimination not on the basis of intent, but results. Numbers that reveal inequality by definition and alone mean policy intended to produce inequality must exist, regardless of whether there exists any discriminatory design to that policy. This redefines equality not as a concept of all having (if need be guaranteed by government regulation) the same opportunities, but as them having the same outcomes regardless of the actions taken by individuals that led to those outcomes. It’s largely an alien concept to America’s historical definition of equality.

Yet it gets worse, as demonstrated by the words of one supporter of the suit, state Rep. Pat Smith. She argues that the problem with having, in numerical terms, blacks underrepresented on the bench (reputing implicitly that the current system “causes” this) relative to the population (and especially in that blacks disproportionately are accused of crimes relative to the population) is that black judges have a personal understanding of the ills of society black residents face that helps guide their sentencing, or what we might term the “wise Latina” theory of U.S. Associate Justice Sonia Sotomayor.

Notice the invidious consequences of this thinking. According to Smith, the only way a person of a certain race truly will get justice is if a judge of the same race hears that trial. Thus, if 80 percent of those accused in the East Baton Rouge court system are black, why not have four M/M districts? And isn’t Smith advocating for legal reverse discrimination here, in that a black judge may rule inappropriately on the fate of a white defendant, since he is disqualified by his race from knowing about the lives and environments of whites, yet she seems unconcerned about this alleged miscarriage of justice? Does she not think it possible that a person’s erudition and wisdom, regardless of whatever immutable characteristics that person may possess, allows them to understand general principles and apply them to specific cases, instead of having to be like the specific case in order truly to understand it?

These views simply are stupidity writ large, ignoring if not denying truths about the human condition and the state of civil rights in America today. There are no literacy tests today. There are no poll taxes. It is illegal to prevent someone from registering to vote on the basis of race. It is illegal to intimidate people from voting, period. Lower incomes and unemployment are not inevitabilities stamped onto someone because of their race, but products of choices made (with laws preventing attenuation of those choices) that may require more effort and sacrifices by some than others to avoid. To argue otherwise is to assert that there is no individual agency in decisions to vote, or for whom to vote, or to stay in school, or to work hard, or to make voluntary choices in your personal life that facilitate attaining these goals.

Yet arguing against these truisms is what this suit is all about. Its mechanistic view, of some unseen force in the shadows visiting oppression onto some and privileging onto others (while still having the vast majority of even the privileged ultimately unknowingly under the control of a powerful few to whom attitudes about race rule their lives) that predetermines elections and therefore justice, a distortion of the real world based upon race, is itself a racist attitude, ascribing motives without evidence but only on some concept of racial advantage or disadvantage. It dehumanizes people in that it does not consider them either capable of thinking for themselves or able of acting in their own best interests, without the intervention by the propagators of this odious notion to lead them around.

Despite that there are no laws preventing people to register or vote on the basis of race, or making them vote or in a certain way, nor any institutionalized forces that compel the same, the plaintiffs and the ideological supporters behind them want the court to buy into the notion that none of this is true, that America need not be race-neutral in its policy-making. That court needs to reject this repugnant redefining of the roles of the individual and the state that is decisively at odds with America’s founding principles.

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