The NPR Politics Podcast - The Push To Redefine 'Black' And End Anti-Racist Voter Protections

Episode Date: January 2, 2023

In this episode of Code Switch, NPR's Hansi Lo Wang reports on the effort by Republican officials in Louisiana to change how Black people are counted in voting maps. If their plan is successful, it could shrink the power of Black voters across the country — and further gut the Voting Rights Act. Unlock access to this and other bonus content by supporting The NPR Politics Podcast+. Sign up via Apple Podcasts or at plus.npr.org. Connect:Email the show at [e-mail] the NPR Politics Podcast Facebook Group.Subscribe to the NPR Politics Newsletter.Learn more about sponsor message choices: podcastchoices.com/adchoicesNPR Privacy Policy

Hey there, it's Asma Khalid from the NPR Politics Podcast. For today's episode, we've got some incredible work from the NPR podcast Code Switch. Our colleague, Hansi Lo Wang, who covers voting, joined the show to break down some of his recent reporting out of Louisiana, where Republican lawmakers are pushing to change the way black people are counted in the census, which could have drastic effects on Black voter influence in elections. And the state legal battle may have nationwide implications, since the Supreme Court is weighing multiple cases this term and next that could have the potential to dismantle even more of the Voting Rights Act. That's on this episode of

Code Switch, and here's the show. What's good, y'all? You're listening to Code Switch. I'm Gene Demme. And joining us today is our play cousin, Hansi Lo Wong. He's NPR's resident census expert. He's a correspondent on NPR's Washington desk. He's a South Philly native like myself. Oh, yeah, and he's also a Code Switch alum. HL Dubs, what's good with you, man? How you doing? It has been too long. Too long.

All right, Hansi, so whenever you come onto the podcast, you always bring us some story from Censusland that is low-key terrifying. That is my brand. So are you about to tell us something really unsettling right now? Well, I mean, let's see. Okay, here we go. Let me introduce everyone first to this Louisianan. My name is Raina David, and I live in New Orleans, Louisiana.

Raina's an artist. I'm into fashion. I do quilts, and I'm a painter, artist. I mean, I'm scattered all over the place when it comes to creativity. And she, her husband, and their children have lived in New Orleans for decades. Reina is Garifuna. Oh, yeah. The Garifuna have a fascinating history.

It traces all the way back to the 1600s, I think. Yeah, that's what Reina said. You know, there were African people who were being brought to the Caribbean by slave traders, but there was a cheap rack near the St. Vincent Island. And some of those Africans survived. And they started families with indigenous people who were living on the island. And over time, their descendants and those of other African people who escaped slavery, they formed new communities. Yeah, today there are Garifuna communities all over Central America and the Caribbean.

They have their own language, although many Garifuna speak Spanish. Tazi, you were the census expert. I got to ask you, do you know how Reina fills out her census form? Well, Reina said on forms she usually checks off the box for Hispanic or Latino and... I'm Black, you know, we're Black. So we're African-Americans, whether you're in North America, Central America, South America, we're African-Americans. OK, so for the purposes of the census, Reyna is Black and Hispanic. Right. Which is something she has in common with another Louisianan I want everyone to meet. I am Dr. Carmen Luz Cosme Puntiel, and I am from New Orleans.

Carmen is an assistant professor in the language department at Xavier University of Louisiana. That's one of the HBCUs in New Orleans. Right. And Carmen was born in the Dominican Republic, and she said she was forced to think about her racial identity differently after she left the DR when she was younger and got off the plane in New York City. It was not until I arrived in JFK that I had to be identified as Black. So growing up in an island where the majority of people that surrounded me were people of color, people of mixed heritage, people of dark skin, we had all the things that separated us and united us at the same time that was not just race.

Okay. So since this question, Hansi, how does Carmen identify on the race question? Well, here's what she said. When I have the opportunity to fill out a formal form that has the option Black or African American, Latino, Hispanic, I take advantage of that. And I checked both because I consider myself a Black person in the African diaspora. And I am also identified as Hispanic or Latina. So I am conscious there are Black people in Latin America and the Caribbean. So that is why I checked both boxes. Carmen also said she had her car stolen once.

And when she had to fill out a police report, the cops identified her as a Black woman in their paperwork. You know why? Because when you're Black, you can't escape from being Black. And you're Black, you're Black. And some people that identify themselves as Black, sometimes they have the opportunity to pass for something else. But some people like me, you just can't. You just can't. So either you embrace it or you reject it. And I chose to embrace it. So Raina and Carmen, you know, both immigrants to the U.S., both have become part of the Black population in New Orleans, which, you know, makes a lot of sense. Like, Louisiana is one of the blackest states by percentage in the United States. There's lots of black people. And Louisiana also

has a long and very particular history of black people who would have likely checked off more than one box if they had the chance to, but who all still fit under this big umbrella that we call black. Yes. And this is why I wanted to introduce them and humor me while I extend your umbrella metaphor here. Go for it. Recently in Louisiana, some Republican officials have been trying to make that umbrella of Blackness smaller. Huh. These Republican officials want to use a narrower definition of Blackness that might not count Black people like Carmen and Reina in voting maps. And the U.S. Supreme Court is set to decide whether this argument holds water.

And, get this, if these Republicans can narrow who counts as Black, it could reshape how Black people get to vote, not just in Louisiana, but across the country. Congratulations, Hansi. I am sufficiently terrified. Well done. You know, I'm just trying to live up to my brand. And I'm going to raise the stakes here a little more. So brace yourself. Oh, Lord. This legal fight over who counts as black and redistricting, it's tangled up right now with the fate of the Voting Rights Act of 1965, which is on its last legs. Yeah, we've talked about this on the show before, and we should probably do a quick explanatory comment on the Voting Rights Act, or maybe it's more of an obit. But here it goes. From the moment slavery formally ended, white Southerners conspired to make sure that newly

freed Black people could not vote. Remember, in many places in the South, Black folks far outnumbered white people, so Black people voting was a threat to white supremacy. So white people threatened black people with violence. They carried out spectacle lynchings and executions. And decades on, states and counties and towns throughout the South were using things like poll taxes and these impossible literacy tests, and obviously more violence, to maintain this order. Almost 100 years after the end of slavery, though, in one of the signature achievements of the civil rights movement, the Voting Rights Act was signed into law. of every race and color and origin in this country have the same right as all others

to share in the process of democracy. The VRA fundamentally changed U.S. politics. It made most of the voter suppression practices that we talked about legal. Black voter registration skyrocketed. And one particularly important piece of the VRA said that certain places with really bad histories of denying voting rights, a list of places that included Louisiana at one point, had to get approval from the federal government before they made new changes to their voting laws. That was just to make sure that these new voting rules weren't really like some new racist shenanigans in disguise. And that part of the Voting Rights Act that you mentioned, that was a major plank of the Voting Rights Act.

And the Supreme Court struck it down in 2013. And therefore, we have no choice but to find that it violates the Constitution. And that took the teeth out of the bulk of the Voting Rights Act. And what we're left with right now is a part of the Voting Rights Act called Section 2. And what's in Section 2 are protections for making sure that when a new map of voting districts is created, the political power of voters of color is not minimized by how those maps are drawn.

Mm-hmm. And drawing up a voting map that favors Republicans and minimizes the voting power of Democrats, that can look a lot like racial gerrymandering since 90 percent of black voters cast ballots for Democrats. These attempts to weaken the power of black voters are what the VRA was actually designed to stop. As you just said, the Supreme Court under Chief Justice John Roberts has made that a lot harder to do. So, Hansi, what is happening at the Supreme Court around this? Well, there are these two lawsuits over redistricting that the Supreme Court is taking up this term.

The first is from Alabama, and it's about Section 2 of the Voting Rights Act. We'll hear argument first this morning in Case 21-1086, Merrill v. Milligan, and the consolidated case. And what happened in this Alabama case is Republican lawmakers used data from the 2020 census to make new maps of congressional voting districts. And when they drew those maps, they only drew one majority black district, which means there's only one district where black voters have a realistic chance of electing their preferred candidate to represent them in Congress. One out of seven districts. In a state where more than one in four people are Black. Right. And a very similar thing happened in Louisiana. Just one out of six districts was drawn to be majority Black.

In a state where nearly one in three people are Black. Right. So groups of Black voters and civil rights groups, they sued the Republicans who drew up these voting maps because they looked at these new maps and concluded there should be more majority black districts, according to the Voting Rights Act. Right. And the lower federal courts basically agreed with them.

They said these maps drawn by these Republicans likely violate the Voting Rights Act, that these are not close calls, and new maps should be drawn with more majority Black voting districts. That makes sense. But the Republicans appealed these lower court decisions, and they got the Supreme Court to agree to use their maps for the midterm elections that just took place. So just to get this straight, the lower court said, this is straightforward. These voter maps are janky. Get them out of here. But the Supreme Court said, actually, we want to have a look at this.

Right. That's basically what a majority of the conservative justices said. And the Republicans in Louisiana in particular, they said in a Supreme Court filing that there shouldn't be more majority black voting districts because these black voters and voting rights groups who sued them. These Republicans say they counted the black population incorrectly. OK, they counted the black voting population incorrectly. But the voting rights groups, you're looking at census data, right? Like this is how many black folks live in Louisiana. This is where they live, et cetera, et cetera.

Right. But what these Republican officials in Louisiana are saying in their court filing is actually, in their opinion, if we're counting black people, we should only include certain people who identify themselves as black on census forms. Specifically, people who just check off the Black box and people who check off both Black and white. And these Republicans argue people who identify as Black and anything else should not count as Black. Should not count as Black. So people like Reina and Carmen should not count. Right. This definition of Blackness that they're pushing for leaves out Afro-Latinos. It leaves out Black people who also identify as Asian, Pacific Islander, American Indian, and or Alaska Native. Okay, so this narrower definition of Black kind of perpetuates an out-of-date Black-White binary,

like doesn't really reflect the country's demographics today? And maybe it never really did. Like, why are Republicans making this argument, Hansi? What are they basing this on? Their on-paper answer is, well, the Supreme Court has never definitively decided who counts as black in voting rights lawsuits. But some experts I talked to said there's something else going on here. They told me if you can muddy the waters around how race is defined and considered under law, you could then try to argue for dismantling civil rights protections for people of color. I think that there are political forces that want to erase considering race from our politics. All right, let's get into it. After the break, stay with us, y'all. Gene.

Hansi. Codeswitch. And Hansi, before the break, you were explaining that Republicans in Louisiana want to narrow who counts as Black for the purposes of drawing up voter maps. And you said their argument is that the Supreme Court has never really said conclusively who counts as Black when it comes to these matters. Right. But that's not exactly true. Because back in 2003, there was this other

redistricting lawsuit. The first is number 02182 Georgia v. Ashcroft. Sandra Day O'Connor was a justice on the court at the time, and she announced a ruling for this redistricting case out of Georgia that hinged in part on this calculation. And there's a technical term for

this calculation. It's called Black Voting Age Population. Black Voting Age Population? Right. Black Voting Age Population. Okay. What you need to know is it's a number used to help measure whether the way a voting map is drawn minimizes the voting power of Black voters. That would violate Section 2 of the Voting Rights Act. Okay. And determining who makes up that Black voting age population, that became more complicated after the 2000 census. Hmm. the 2000 census. Is that because the 2000 census, as you told us before, was the first one in the history of the country that allowed people to check more than one box on the race question?

Right. Before 2000, counting the Black voting age population was more straightforward. You know, you just pull the data of everyone of voting age in an area who marked the Black box on census forms. Right. But after 2000, the data was more complicated. So in this Georgia redistricting case, the Supreme Court set a standard for any voting rights lawsuit

that's focused only on the voting power of black people. And that standard for the black voting age population is include every adult who checked off the census box for black, including black people who also checked off the box for White, Asian or another racial category, and Black people who identify as Hispanic or Latino. So that's still pretty straightforward. Like everybody who identifies themselves as Black on the census,

whether it's just Black or Black and something else, we all count as Black. That makes sense? Yeah. So did anybody have a problem with that standard? Not really. Okay. You know, since the Supreme Court set the standard back in 2003,

there's been no substantial debate about this. I talked to Kareem Creighton, a former law professor who now works on redistricting issues. Here's what he told me. You're looking at, as far as the census is concerned, people who report to be any part Black, or for that matter, any racial group, Latino, Asian American, etc. Because we recognize that our society has people who are biracial or multiracial, that if they are reporting to be a part of that group, even one among many of the boxes they check,

that you respect their membership as part of that group, even one among many of the boxes they check, that you respect their membership as part of the group. And Kareem said this broad definition of Blackness is more or less settled policy that Democrats and Republicans have used in voting rights lawsuits. Okay. And as a census nerd, I should also point out for context here, census results show that more and more people in the U.S. are counted as identifying with more than one race. So it's really important to keep in mind that racial categories like Black may include more people than some might assume. So Hansi, if this is basically settled, then why are Republicans in Louisiana bringing it up right

now? I wanted to ask them that. I reached out for interviews with Louisiana Secretary of State and State Attorney General, who are both Republicans involved in this Supreme Court appeal. They either didn't get back to me or they said they cases are about different parts of the Voting Rights Act. Huh. Just to reiterate, the lower courts, they weren't buying any of this. They thought this argument was weak sauce, but the Supreme Court still decided to take on this case. Yes. And to be clear, the Louisiana Republicans are making other arguments about race and redistricting in this case, too. But yes, the U.S. Supreme Court is taking on this case. That is worrisome. You know, I should add, there's another point the Republican officials in

Louisiana are trying to make. They're arguing that a narrower definition of Black would keep people from overcounting the number of Black people in a way that could give Black voters more voting power than other groups when voting maps are redrawn. I mean, okay, but is there any evidence that people are overcounting Black folks? Or is this just, you know, concern trolling? There's a lot of evidence that Black people are undercounted in the census. And when you're talking about overcounting black people, I'm only aware of it coming up in the context of these Republican officials making this argument. And, you know, voting rights advocates I've talked to say if fewer black people can be counted as black, then it's going to be harder to make a case that a majority black voting district should be drawn to protect black voting power. Right. Okay. You know, what's interesting is that this

push to narrow who counts as black, it also came up in that Alabama redistricting case that's also at the Supreme Court. Okay. And in that case, Republican state lawmakers were arguing for an even narrower definition of blackness than what Republicans in Louisiana are pushing for. The definition that the Alabama Republicans wanted would only include people who marked just the black box full stop. So unlike in Louisiana, not even people who checked black and white would count as black in Alabama. Right. Just black only. But get this. The Alabama Republicans are not even pushing for their narrow definition of black anymore. It didn't make it through the lower courts. And the redistricting consultant I talked to, Kareem Creighton, he advised Alabama's Democrats when the state's new congressional act was drawn.

And Kareem said he was side eyeing this Republican plan to narrow who counts as black when he first heard about it. It was mild surprise that a group that had in many places tried their best not to talk about race, at least in the formal proceedings, all of a sudden took a very, let's just say, staunch and I'd say retrograde understanding of race and decided to say that in court. It also made me wonder how much the Republican lawmakers were willing to just take their chances in court. That is, maybe this, you know, legislature looked at the United States Supreme Court and said, you know, we're going to try our hand at revisiting what most people thought about both racial definitions and frankly, the state of the law on race and how race is used. Maybe they're taking their chances and trying to redefine blackness because the court now has a super majority of six conservatives,

the three liberals. And so those conservatives might be amenable to this argument. Possibly, possibly. And I know there's a lot to talk about in this push to legally define who is Black and who isn't in voting maps. But there's an even bigger legal battle happening here. What Republicans in Alabama are pushing for at the Supreme Court right now is basically to stop allowing race to be considered in redistricting. I think that there are political forces that want to erase considering race from our politics, despite the long history and even the de facto problems that we see ongoing today. Who was that, Hansi? That was Atiba Ellis. He's a professor at Marquette University Law School. I spoke with him because he specializes in voting rights law. And Atiba was telling me

that there could be a strategy here by the Louisiana Republicans to ultimately dismantle civil rights protections for Black voters and other voters of color. of Blackness so that they can become amenable to another argument that considering race and voting rights lawsuits opens the door for gaming and manipulating how minority voting groups are counted. And if the justices buy that claim, they may be open to ruling that no one's race should be considered when voting maps are redrawn. And by the way, that kind of extreme argument is before the Supreme Court right now in this Alabama case. So the end goal was getting to the point where the courts are like, maybe we should just get out of the business of counting race altogether. Yes. And redistricting. Alabama Republicans have raised in their case is race should not be taken into account when

drawing voting districts unless there's evidence of intentional racial discrimination. Okay, so if the Supreme Court does rule that you basically can't consider race in redistricting, then does it really matter how the court rules on this question about, you know, who counts as Black or whatever? Not really. You know, this whole discussion, this whole question about redefining Blackness might end up becoming less urgent because if the court says you can't take race into account when you're drawing up redistricting maps, it might become virtually impossible to use Section 2 of the Voting Rights Act to challenge voting maps that weaken Black voting power. And that would effectively be game

over for the Voting Rights Act. Like most of the big protections set out in the Voting Rights Act and the tools to enforce them would be gone. Basically. But if the Supreme Court doesn't go that far, but ends up maybe endorsing a more limited definition of Blackness for redistricting, Atiba Ellis told me that would cut against the original purpose of the Voting Rights Act. The goal of erasing barriers to voting, including improper redistricting and basically diluting the strength of a racial group's voting preference, is to allow that racial group to determine for themselves who they wish to vote for and how they wish to participate in the political process.

You know, this case, it touches on so many layers of history that have informed what Blackness has meant in Louisiana. You know, Louisiana's indigenous history, its history as a former French and Spanish colony, and its ties to the circum-Caribbean region. You know, all of that has really defied in many ways the kind of black-white binary that's been more pervasive in other parts of the U.S. Hmm. I mean, it also just reminds me of the story of New Orleans' own Homer Plessy. He was Creole, like he was so light that people assumed that he was white. But in order for anyone to even know that he was black, Homer Plessy chose to out himself as a mixed-race black person

to get kicked out of the whites-only train car he was sitting in, which of course was on purpose and precipitated the notorious Supreme Court case and decision named after him. Plessy v. Ferguson. So in that case, which established a formal legal color line for Jim Crow, it was based on this really, really broad view of blackness, right? Like blackness has in the U.S. both legally and culturally been really expansive. And Hansi, I know you are the census nerd here, but. Yeah, go on. Like, you know how back in the day, a census worker called an enumerator would come to your house and, like, record your race based on how they understood your race?

Right. Well, according to the surveyor, the enumerator, who counted Homer Plessy in the 1890 census, Homer Plessy was Black, right? But Plessy could have been counted as an octoroon, which was a category on the census in 1890, which meant that he was one-eighth Black. And octoroon was a category like quadroon and mulatto. By 1910, those same enumerators were listing Homer Plessy as a mulatto. But by 1920, he was being recorded by the census enumerators as white. Wait, what? Right? So the man whose name is associated with the color line was placed on different sides of that line at different times of his life? Right, exactly. Isn't that wild? That's so wild. Anyway, you crazy for that one, racism? All right, sorry, sorry.

Back to today. Back to 2022. That history has not gone away. You know, in fact, one of the lower federal court judges who heard the Louisiana redistricting case we've been talking about, this judge cited Louisiana's complicated history with blackness in the trial court ruling. U.S. District Judge Shelley Dick rejected the Louisiana Republicans' proposal for a narrower definition of black and wrote, quote, it would be paradoxical, to say the least, unquote, to ignore Louisiana's long and well-documented expansive view of Blackness in favor of a definition

on the opposite side of the spectrum. Yeah, like, as the Plessy case demonstrated, like, for the purposes of white supremacy, Blackness was considered in absolute terms, like any amount of black ancestry or heritage meant that you were black. Yeah. And for decades, Louisiana state courts put a lot of weight on this mythical quote unquote

Negro blood and used what was known as a traceable amount test to determine whether a person was Black under law. You know, in 1970, lawmakers passed a law that said, quote, a person having one thirty-second or less of Negro blood, unquote, shall not be considered Black by a public official in the state. One thirty-second? Like, what even? That's? That's like your great, great, great somebody. Like if that law is passed in 1970, you're talking about pre-emancipation. You might not even have the family records.

And if one eighth black means you're an octaroon, by the way, don't say that word. Don't say octaroon. What are you if you're one thirty second, like lacto ovo semi room? Well, you're white. Oh, yeah. You're white. Yeah. Well, technically, it said you could not be considered black under law.

Right. Right. And by the way, that law was not repealed until 1983. 1983. Oh, my God. More than a decade after the Civil Rights Movement and when some elder millennials were born. So we are talking about relatively recent history here.

Wow. I was trying to put all this into context, so I talked to Wendy Godin. She's a historian at Xavier University, Louisiana, and her research focuses on race and racial mixture in the Americas. There was a very specific purpose for using this blood math. That purpose was to define racially ambiguous people, racially mixed people, as Black. After that, there are laws that referred specifically to race.

For example, anti-miscegenation laws, which said that white and other races cannot marry. And so if white people cannot marry other races, that means that there's a certain protection of white wealth. And it wasn't just about protecting white wealth, Wendy Goddard said. It was also about protecting white voting power, white political power. And given that history, Wendy said, it's not completely surprising that these Republican officials in Louisiana are going in kind of the opposite direction in defining Blackness? Well, I think that it has nothing to do with people's identity. It has to do with power. Wendy said we can think of race as categories with lines and borders.

But at the same time, race is this dynamic concept that's constantly being made and remade, challenged and critiqued. And we can't forget all that history of defining a Black person as someone with any ancestors who were considered Black and how that history is still affecting people today. Hmm.

You know, since Carmen and Reina, who we heard from at the top of the episode, are likely to be directly affected by, as Juan Diego Dan said, like changing the lines and borders around Blackness, I'm curious as to how they feel about this push by the Republican officials in their state. Yeah.

Here's what Carmen and then Reina said. I tell you this, they forcing me, if I have to choose between Latina and Black, is forcing me because I am conscious of the situation that race and racial discrimination is doing to the U.S. American Black people. And I tell you, I will be forced to just check the box Black. And the reason why is because that is what defines me every day.

It's not my Dominican-ness. It's not my Latinidad. Yeah, if they are going to, you know, change the districts and all that because of race or ethnicity, I would rather be acknowledged as African American. Basically, that's what I am here. When are we expected to find out how the Supreme Court is going to rule on this proposed redefinition of Blackness? The court is expected to rule first in the Alabama redistricting case by the end of this term, which could be in early July.

And that ruling is expected to be applied to the Louisiana case. And we'll have to see if the justices ultimately decide to touch on this question of who counts as black that the Louisiana Republicans have raised. I mean, you know, we talk about this a lot on the show. We talked about this a lot on the team, on Code Switch, like how hard it is to codify race. Like no matter how you want to do it, you always are leaving out people who belong to that group for all intents and purposes.

You know what I mean? Like whether you decide like for what it means to be black, all those rules, like, count certain people and discount other people who are clearly in those identities. You know what I mean? Right, right, right. I mean, it's messy. It's so messy and imprecise and kind of unrelated to the way people actually are living their lives and walking through the world. But when we are talking about policy and the courts, you know, they want to take that messiness

and make it neat, make it concise, quantifiable. And that's the tension. You know, when we're talking about race, it's actually very hard to try to accurately, comprehensively try to quantify someone's identity, which is always changing in different contexts yeah and i guess it's like which blunt instrument do you want to use to make this category make sense like do you want to say blackness is an absolute thing that everyone

go you know going up to 1 32nd black ancestry gets to belong to, or is it this thing that is super narrow? Like both of those things are blunt and imprecise in completely different directions. Right. And, you know, who is holding these instruments? Yeah, I mean, there's a way we identify on a human level. But like as Wendy Godin said, if you zoom out even a little bit, it becomes about a whole bunch of other stuff. Like power and who gets to wield it. Hansi Lo Wong is a correspondent on NPR's Washington desk and a Code Switch OG. Thank you as always, Hansi, for coming back on the show.

Appreciate you, man. You're very welcome. All right, y'all. That is our show. You can follow us on IG at NPR Code Switch. Our email is codeswitch at NPR.org. And subscribe to the podcast on NPR One or wherever it is you get your podcasts. We just want to give a quick shout out to our Code Switch Plus listeners.

We appreciate you and thank you for being a subscriber. Subscribing to Code Switch Plus means getting to listen to all of our episodes without any sponsor breaks. And it also helps support our show. So that's dope. So if you love our work, please consider signing up at plus.npr.org slash code switch. This episode was produced by Christina Kala. It was edited by Dalia Mortada and Verlin Williams. And we would be remiss if we did not shout out

the rest of the Codeswitch Massive. B.A. Parker, Lori Lizaraga, Karen Grigory-Bates, Alyssa Jong-Perry, Deepa Modisham, Thomas Liu, L.A. Johnson, and Jess Kung. Our intern is Yordanos Tesfazion. As for me, I'm Gene Demby. Be easy, y'all.