Last week, the Supreme Court heard oral arguments for two cases that could have major ramifications for black and brown Americans. One, Fisher vs. University of Texas, is a more-or-less standard “affirmative action is reverse racism” case that could potentially bar or severely restrict colleges and universities from considering race in the application process. The second, Evenwel v. Abbott, challenges the practice of drawing voting districts (and thus allotting representatives) based on pure population. Instead of drawing districts with an equal number of people, districts would need to contain roughly the same number of voters, a group that does not include children, non-citizens, and, depending on the state, prisoners and ex-offenders.
It’s no coincidence that these two cases landed in front of the nation’s highest court. Both are the work of Edward Blum, a conservative activist with backing from a number of right wing foundations. Blum has a track record of developing “test cases,” recruiting ideal plaintiffs, matching them with lawyers, and bankrolling their litigation. In the Fisher case, for example, Blum launched a three-year search process before selecting Abigail Fisher as the case’s plaintiff. All of this is to say that we should understand these cases as part of a well financed, researched, and strategized conservative campaign.
Most debate has focused on the impact that these two cases could have on black Americans. And that’s not without reason. One researcher estimates that the Fisher case could lead to a 50% reduction in black admissions to elite universities and Evenwel is essentially an attempt to roll back the “one person, one vote” policies won during the Civil Rights Movement. In this way, both cases can be seen as part of the centuries-long white conservative backlash against black progress. Viewed from another angle, however, both cases reveal something new about the impact that shifting demographics are having on conservative political strategy and calculus, to which black Americans are becoming increasingly marginal. Though they’ve been presented and debated along black-white lines, both cases are just as much about Latinos as they are about African-Americans.
Fisher v. University of Texas
Affirmative action is almost always presented as a strategy to increase black access to opportunity but the reality is actually much more nuanced. Though it was originally conceived as a strategy to level the racial playing field, affirmative action was quickly expanded to include gender. As a result, white women have historically been the primary beneficiaries of affirmative action policies. Affirmative action is a challenge to all sorts of privilege, not just the race-based types. That has won it some powerful opponents. But it’s hard to build broad-based opposition to affirmative action when it actually supports broad swaths of the population (women, racial and ethnic minorities, LGTBQ people, and the poor). So the core opponents of affirmative action (heterosexual, wealthy, white, Christian, men like Blum) have successfully reframed it as a policy that just supports undeserving, under-qualified blacks.
That a white woman was selected as an ideal plaintiff for this test case is a testament to how effectively conservatives have distorted perceptions of affirmative action. Those who are beneficiaries of these policies have been convinced that they are actually victimized by them. Conservatives have long framed their agendas as defending white women (and womanhood) from various forms of black infringement. This case is no different in that respect.
What’s particularly interesting about Fisher, however, is not just that a white woman was selected as a plaintiff but that blacks were still cast as the primary beneficiaries of affirmative action at the University of Texas. Indeed, even Justice Scalia seemed to think that the issue at hand was that underprepared blacks were gaining access to such an institution. But in this case, “Hispanics [not blacks] were the primary beneficiaries of such [racial] preferences at the University of Texas.” In fact, Hispanics have surpassed blacks as the largest eligible group for race-based affirmative action policies. This is interesting for two reasons.
First, despite the reality that white women are the primary beneficiaries of affirmative action generally and that Hispanics are the largest eligible group for race-based affirmative action, the affirmative action story that is presented is that of undeserving blacks robbing white women of their hard-earned opportunities. Perhaps out of both habit and political expediency, most debate has framed this case as a black-white issue and not a brown-white issue.
Second, let’s not forget that this case was cultivated and hand-picked by conservative activists. That means that Blum was not just looking for an ideal plaintiff but for an ideal defendant as well. It’s not news that conservatives are looking to curb the influence and opportunity of Latinos but this is a clear case of a strategy that has historically been wielded against blacks being targeted directly at Latinos. Fisher certainly has important ramifications for black Americans. Still, Blum could have pursued a case in which blacks were the primary beneficiaries of affirmative action, he didn’t do that.
Evenwel v. Abbott
The Evenwel case is a little more complicated. Currently, voting districts are drawn to contain roughly the same number of people as counted in the Census. That count includes people who can’t vote like children, several classifications of immigrants, and disenfranchised felons. The logic behind this is that even though those people can’t vote, they should still be represented by their elected officials (whether or not electeds are actually responsive to those constituencies is up for debate). Evenwel challenges this practice; arguing that it dilutes the voting power of rural areas which tend to have higher voter to non-voter ratios than urban areas. This is an attack on communities of color, which tend to have higher rates of people who are ineligible to vote. In this sense, like Fisher, this is not new and is part of a decades-long effort to roll back the gains of the Civil Rights Movement. But there are a couple interesting nuances.
In the past, many rural districts actually benefited from the practice of apportioning representatives based on population and not eligible voters. Rural areas in which prisons were sited saw huge increases in their population as mostly black men from urban areas were shipped out of the inner-city and into far flung penitentiaries. These men were unable to vote while incarcerated, but were still counted as residents wherever they were held. This shifted representation from urban cores to rural communities with prisons.
This is still the case, but the role of prison in disenfranchising poor people of color has changed. Even though only 2 states allow prisoners to vote, 75% of the almost 6 million disenfranchised felons have actually served their sentence and returned to their communities. As is becoming increasingly understood, prison is not just about removing individuals from society for a limited period of time. It’s also about marking and marginalizing them afterwards. Evenwel is evidence that the calculus on prison and political power has shifted. Even though counting voters and not total population would deflate the artificially ballooned voting power of rural areas with prisons, it would still reduce the voting power of urban areas more than rural areas on the whole.
Like attacks on affirmative action, this is absolutely an attack on black Americans, who are more likely to be disenfranchised felons than any other demographic. If successful, Evenwel could compromise the “one person, one vote” policies that were among the Civil Rights Movement’s landmark achievements. But, probably even more so than the Fisher case, this is an attempt to curb Latinos’ influence. While Evenwel would cause black districts to lose representation, district with high numbers of Latinos would be much harder hit. While the number of black disenfranchised felons is high, it is dwarfed by the number of Latinos who are barred from casting a ballot. Evenwel is a shot at both black and brown Americans, but it’s targeted more directly at Latinos.
Black Political Marginalization
Many scholars have argued that black Americans have become increasingly marginal or disposable with reference to the US economy. Ruth Wilson Gilmore argues that large swaths of the black population represent “surplus” labor that is no longer useful to capital. The political ramifications of dealing with black marginality, however, have been huge. Most notably, constructing the mass incarceration apparatus was a huge political undertaking, which revolved around the “problem” of dealing with (warehousing) black surplus labor. As a result, black Americans have still figured largely into conservative politics and strategy.
This is likely to continue. But, as US demographics shift, conservative strategy will increasingly target other races as well. Whenever possible, however, conservatives will revert to the tried and true practice of presenting these attacks as black vs. white struggles, even if there is much more at stake.
Finally, these cases demonstrate that the interests of black and Latinos are often aligned. As conservatives increasingly develop strategies that target both groups, we would be well served to build black-brown alliances to combat them.