The "Nixon Sabotage": The Political Origins of the Equal Protection Challenge to the Voting Rights Act

Abstract: Critics of the Voting Rights Act argue that the anti-discrimination law requires states to engage in unconstitutional discrimination, as state decisionmakers must be conscious of race in order to ensure that voting policies do not weaken minority representation. This argument relies on the idea that subjective racial motivation is the essence of unconstitutional discrimination (even if benevolent, or to promote racial inclusion). The conventional understanding among constitutional scholars is that this "search for the bigoted decisionmaker" developed in employment and housing discrimination decisions between 1976 and 1979. Previous accounts have not recognized the role that the 1971 school desegregation decision of Swann v. Charlotte-Mecklenburg Board of Education played in laying the foundations for this definition of unconstitutional discrimination. Swann is important because it vividly illustrates how the elected branches gave traction to the present definition of unconstitutional discrimination. The justices' archives reveal the Swann Court's uncertainty about focusing on the racial motives of present authorities as the basis for finding unconstitutional discrimination, and that a narrow majority preferred a draftof the opinion that eschewed this approach. Yet all justices acquiesced to Chief Justice Burger's self-assigned opinion, which emphasized subjective racial motives as the core of unconstitutional discrimination, and as Justice Douglas described it, "wr[ote] President Nixon's view . . . into the law." The justices did so because they perceived unanimity as necessary for compliance in the face of both political branches objecting to judicial authority in the area of school desegregation. Swann demonstrates how the view of unconstitutional discrimination that centers on racial motives first gained traction out of deference to political branches calling for limits on judicial policymaking. This concern that animated defining unconstitutional discrimination in terms of racial motives-judges making social policy under the guise of constitutional remedies-does not apply in the current challenge to the Voting Rights Act, when the Court is asked to extend the racial-motives limitation, forged in deference to elected officials, to restrict the ways that elected officials have chosen to address discrimination.IntroductionCritics of the Voting Rights Act argue that the anti-discrimination law, designed to eliminate racial discrimination in voting, requires states to engage in unconstitutional discrimination.1 This conflict arises from the contemporary view that racial motivation is the essence of constitutionally prohibited discrimination. Under this view, policies that effectively exclude members of one race-school zoning that reinforces neighborhood segregation, voter identification laws that disproportionately keep Hispanic voters away from the polls, and "verbal skills" tests that systematically disfavor black job applicants-are constitutionally permissible if the burden on racial groups is apparent but not intended, or incidental.2 And the corollary of this focus on racial motives as the essential characteristic of unconstitutional discrimination is that racial motivation designed to include, rather than exclude, members of different races is also claimed to be suspect as unconstitutional discrimination.Although the Constitution does not prohibit unintended racial discrimination, Congress has chosen to address such discrimination through Title VII of the Civil Rights Act, which prohibits employment criteria that tend to exclude applicants of a particular race, and Section 5 of the Voting Rights Act, which prohibits covered states from changing their voting policies in ways that effectively weaken a minority group's ability to elect its preferred candidate.3 As these public policies are threatened by the understanding that any form of racial motivation is unconstitutional, I aim to illustrate how this understanding gained traction out of deference to political pressure. …