Who counts as Black?

The thorny question has quietly found its way before the U.S. Supreme Court again, ensnared in a major legal battle over the Voting Rights Act that could further gut the landmark law and make it harder to protect the political power of voters of color.

The battle is playing out over new maps of congressional voting districts created by Republican-led legislatures in Alabama and Louisiana after the 2020 census. The fate of the maps rests on how the Supreme Court rules first in the case out of Alabama — Merrill v. Milligan — which the high court heard this month and may set a precedent for lawsuits about Section 2 of the Voting Rights Act.

In both cases out of the Deep South states, lower courts have separately found that the maps were drawn in a way that likely dilutes Black voters' strength at the polls. That would violate the Voting Rights Act by giving a minority group, as spelled out in Section 2, "less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice."

GOP state officials have pushed back against the analyses that led to those findings, partly by questioning a definition of Blackness that, for close to two decades, has been the standard in cases focused on the voting power of Black people and no other racial or ethnic group whom the federal government classifies as a protected minority population.

Voting rights cases focused on Black voters have used a broad definition of "Black"

Since a 2003 ruling by the Supreme Court, that definition of "Black" has included every person who identifies as Black on census forms — including people who check off the boxes for Black and any other racial or ethnic category such as white, Asian and Hispanic or Latino, which the federal government considers to be an ethnicity that can be of any race.

Republican state officials, however, have called for narrower definitions of Blackness that do not include people who also identify with another minority group.

Citing no evidence, GOP officials in Alabama argued in lower court filings that limiting the definition to people who mark just the "Black" box and do not identify as Latino for the census would be "most defensible."

And in the Louisiana case — Ardoin v. Robinson — officials have been arguing for the definition to only include people who check off either just the "Black" box or both "Black" and "White" and do not identify as Latino.

Before appealing their redistricting case to the Supreme Court, Alabama officials dropped their push to redefine Blackness.

But the state of Louisiana and its Republican secretary of state, Kyle Ardoin, have asked the country's highest court to weigh in with a final word on which definition should be used in Section 2 cases.

Lower courts have already found that even when using more limited definitions of "Black" as proposed by the Republican officials, the premise of the courts' analyses of the voting maps does not change.

Still, in one filing to the high court, Louisiana officials say using the more expansive definition of Blackness, which includes all people who identify themselves as Black, to analyze the state's new map of congressional districts is an "independent legal error warranting this Court's intervention."

A narrower definition of "Black" could end up allowing other redistricting plans to minimize Black voting strength.

How the Supreme Court decides the case over Alabama's congressional map, however, could have broader implications on the political power of all voters of color. Many voting rights advocates are watching to see if enough of the court's conservative majority adopts one of Alabama's more extreme arguments — that race cannot be taken into account when drawing voting districts unless there's evidence of intentional racial discrimination.

A ruling along those lines could make it virtually impossible to use Section 2 of the Voting Rights Act to challenge voting maps in the future, turning how "Black" is defined in redistricting into a less urgent question.

Still, the challenges Republican state officials have already made on who counts as Black have raised uneasy questions about the complicated history of defining Blackness and the future of Black voting power in a country where growing numbers of people identify with more than one race.

A footnote set a new definition of Blackness for redistricting after the 2000 census

There was no substantial debate about how to define Blackness for redistricting after the Supreme Court's 1986 ruling in Thornburg v. Gingles, a North Carolina redistricting case that established a way of using census data to test whether the racial or ethnic makeup of an election district, among other factors, resulted in the dilution of a minority group's voting power.

For the 1980 and 1990 census data, there was only one way people could identify their race as Black on census forms — filling in the circle for "Black" and nothing else.

But the turn of the century came with a major change in the 2000 data released by the Census Bureau.

"2000 was really a watershed moment for the U.S. census because it was the first time in American history that all Americans got the opportunity to identify themselves with more than one race," explains Ann Morning, a professor of sociology at New York University who studies racial classification and has served as an outside adviser to the bureau.

That shift brought a new layer of complication for enforcing voting and other civil rights laws. After decades of federal agencies relying on census data sorted into single-race categories, the White House's Office of Management and Budget put out new guidance on how to sort data released in 2001 about people who identified themselves as multiracial.

Based on that guidance, census responses from people who marked both the "Black" and "White" boxes should be counted with the Black population. And when focused on discrimination specifically against Black people, responses marking boxes for two or more minority races including "Black" should also be counted as Black.

That approach was echoed in a footnote of the 2003 Supreme Court ruling in a redistricting case known as Georgia v. Ashcroft, which set the current standard for who counts as Black when calculating what is called in Voting Rights Act cases an election district's "Black voting age population."

For the high court's majority opinion, former Justice Sandra Day O'Connor wrote that limiting the definition of "Black" to non-Hispanic people who identify themselves as Black and those who identify as both Black and white — as the Justice Department under former President George W. Bush's administration had advocated for in this case — "may have more relevance if the case involves a comparison of different minority groups."

But noting that the Georgia case was examining "only one minority group's effective exercise of the electoral franchise," O'Connor concluded: "In such circumstances, we believe it is proper to look at all individuals who identify themselves as black."

Republican state officials are litigating what was thought to be a settled issue

For many redistricting experts, who counts as Black in voting maps has not been up for debate since the Supreme Court's ruling in the Georgia case.

"It was thought to be settled," says Morgan Kousser, a professor emeritus of history and social science at the California Institute of Technology who wrote Colorblind Injustice: Minority Voting Rights and the Undoing of the Second Reconstruction and joined a friend-of-the-court brief with other historians supporting the groups challenging Alabama's map.

In Louisiana, however, Republican state officials claim that the ruling in Georgia v. Ashcroft — a case about Section 5 of the Voting Rights Act — should not be applied to their Section 2 case, noting in a court filing that "no court has ever conclusively settled the question of what degree persons who self-identify with more than one racial or ethnic identity should be categorized for the purposes of the Voting Rights Act."

They also argue that a more limited definition of "Black" would "prevent state actors from artificially inflating the minority counts of their redistricting plans."

That argument, though, carried no weight with the lower court judges who have heard Louisiana's case. In a trial court ruling, U.S. District Judge Shelly Dick pointed out that, when reviewing another lower court's ruling for the Alabama case that also used the more expansive definition of "Black," Chief Justice John Roberts concluded that there were "no apparent errors" for the Supreme Court to correct based on the court's past decisions.

Kareem Crayton — a former law professor and redistricting consultant who advised Alabama's Democratic state House minority leader during the drawing of the state's new congressional map — says he did not expect Alabama GOP lawmakers to challenge the definition of Blackness in court given that they've publicly emphasized they drew congressional districts "race-blind."

"It was a 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," Crayton adds. "It also made me wonder how much the Republican lawmakers were willing to just take their chances in court. That is, maybe this legislature looked at the U.S. 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.' "

Adopting a more limited definition of Blackness for redistricting would cut against the Voting Rights Act's goal of allowing racial and ethnic minority groups to "determine for themselves who they wish to vote for and how they wish to participate in the political process," says Atiba Ellis, a professor at Marquette University Law School whose research focuses on voting rights law.

"Drawing lines around identity based on what might come off as an arbitrary distinction on a census form would undercut that opportunity for self-determination," Ellis adds. "And certainly in other contexts throughout American history, having the majority dictate to a racial minority who belongs in that racial minority has been seen as discriminatory."

Who is considered Black in Louisiana has shifted

The push by Louisiana GOP officials for a narrower definition of Blackness in redistricting has resurfaced the state's history with the "one-drop rule," which governments around the U.S. once used to define a Black person as anyone with ancestors who were considered Black.

"It would be paradoxical, to say the least, to turn a blind eye to Louisiana's long and well-documented expansive view of 'Blackness' in favor of a definition on the opposite end of the spectrum," Dick, the trial court judge who heard the Louisiana case, wrote in a ruling that rejected the proposal for a narrower definition of "Black."

In fact, state lawmakers passed Act 46 of 1970, which, until its repeal in 1983, codified that "a person having one-thirty second or less of Negro blood shall not be deemed, described or designated by any public official in the state of Louisiana as 'colored,' a 'mulatto,' a 'black,' a 'negro,' a 'griffe,' an 'Afro-American,' a 'quardroon,' a 'mestizo,' a 'colored person' or a 'person of color.' "

That formula was put into place after decades of Louisiana state courts using a "traceable amount" test to determine whether a person was Black under law.

Wendy Gaudin, a historian at Xavier University of Louisiana whose research focuses on race and racial mixture in the Americas, says there was a "very specific purpose for using this blood math" — to define "racially ambiguous" people as Black and ultimately preserve white wealth and white political power when anti-miscegenation and other racial segregation laws helped enforce a color line.

Gaudin says it's important to keep in mind that definitions of Blackness have shifted over time in Louisiana, where its Indigenous history, its pasts as a French and Spanish colony and ties to the circum-Caribbean region have often defied the kind of Black-white binary that has been more pervasive in other parts of the United States.

"Blackness as an idea, as a concept, came out of a very specific history of exploitation. Over time, historians have shown us that it changes into a source of strength, a source of resistance, a source of connection," Gaudin adds.

The way Gaudin sees it, though, this current legal fight over who counts as Black in redistricting "has nothing to do with people's identity."

"It has to do with power and how different populations — whether it's their inclusion or their exclusion or their carefully curated inclusion — how all of that works to promote the political power of a person or a party," Gaudin says.

Ellis, the Marquette University Law School professor, warns that justices on the Supreme Court who may be inclined to dismantle Section 2 of the Voting Rights Act might see the highlighting of alternative definitions of "Black" for redistricting as a "kind of manipulation of race that would reinforce their view that the Voting Rights Act ought to be held unconstitutional."

"That could be the worst case of the outcomes here," Ellis says.

Whatever the court decides, efforts to redefine what "Black" or any other race means in politics are not likely to go away.

"This is a set of games that Americans have been engaged in and practiced throughout our history," says Kousser, the Caltech professor emeritus of history and social science. "This is just the most recent iteration of things."

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