Less than three years ago we discussed here the case of Allen v. Milligan, in which the United States Supreme Court, somewhat surprisingly, upheld the constitutionality of section two of the Voting Rights Act and ordered Alabama to create a second black-majority (and therefore Democrat-majority) congressional district. Four conservative justices dissented; I concluded the post by saying that “In their own anti-democratic fashion, the dissenters have logic on their side, but their day has not yet come.”
Now it has. Last week, in Louisiana v. Callais, the two conservatives who had voted with the majority in Allen joined the other four for a six-three majority to gut section two. Neither Allen nor the act itself has technically been overruled, but they have been reduced to a dead letter. The last effective limitation on a state’s ability to gerrymander has now been removed, and with just on six months to go until mid-term congressional elections, Republican states are falling over themselves to take advantage of the opportunity.
The reason I said that the conservatives had logic on their side was that the alternative view depends on distinguishing between racial gerrymandering and partisan gerrymandering. But in the American south, where voting polarises along racial lines, that distinction is unworkable: the two are practically identical. As I put it then, “the project of ensuring that Black voters have an adequate opportunity to elect representatives of their choice – the idea behind the Voting Rights Act – is in practice inseparable from ensuring that Democrat voters are adequately represented.”
So if partisan gerrymandering is to be permitted – and back in 2019, in Rucho v. Common Cause, the court insisted that it must – then differential racial impact is unavoidable. The proper way to “disentangle race from politics,” as the majority claims to want, would be to overturn Rucho and force states to use non-partisan (and non-racial) criteria to draw their districts: or, better still, get rid of single-member districts and make them adopt proportional representation.
Because single-member districts are inherently non-proportional, the objectives of the Voting Rights Act have always required some creative map-drawing. The supporters of racial minorities, being themselves committed to retaining that system (or just despairing of ever getting support for an alternative), have gotten used to the messy compromises involved. Their outrage at the Supreme Court is completely genuine (Rick Hasen’s Electoral Law Blog will give you plenty of examples).
But creating weirdly shaped districts based on racial categories was never a good look. Nor will it stop now. Callais says that racially-conscious districting is unconstitutional unless it’s necessary to comply with the Voting Rights Act, and its interpretation of that act means that requirement will almost never be met. But since partisan districting is OK, and since in the south at least the two are indistinguishable, the only difference is that now both sides will be doing it.
That means an escalation in what was already a war of competing gerrymanders. The Republicans set off the contest last year in Texas, trying to squeeze an extra five seats out of an already badly slanted map in that state. In response the Democrats decided that unilateral disarmament was a losing strategy, so they have been trashing the independent processes that they had previously established and aggressively re-drawing the boundaries in the states that they control.
Hence things like the remarkable new map of Virginia (currently tied up in the courts), which manages to construct 11 districts of which only one has a majority that voted for Donald Trump, even though he received 47.1% of the vote statewide. Watch now while Republican legislatures in the deep south try to outdo it.
The World is Not Enough 