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.

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.

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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."

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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.