Dem
47
GOP
53
Yesterday, we had an item on the Supreme Court's (second round of) oral arguments in Louisiana v. Callais. It was the big news of the day, and we wanted to mention it in a timely fashion. However, it's an important and weedy enough story that it's worth taking another look, with a bit more depth. And so...
During the Wednesday hearing, there was a notable lack of interest by the Court in the legislative history of the Voting Rights Act or the law's overall purpose. Enacted in 1965 to prohibit race discrimination in voting and to implement the Fifteenth Amendment to the Constitution, it's been amended 5 times since, including as recently as 2006, and has been wildly successful in expanding the franchise for minority voters. Because of this landmark law, minority groups, especially Black voters in the South, have been able to vote in greater numbers and elect their preferred candidates. When the VRA was passed, there was one Black member of Congress; today 66 members of Congress identify as Black. In fact, the 119th Congress is the most diverse in history. Much of that progress is due to the law.
In 2013, the Roberts Court gutted the preclearance requirement of Section 5 of the VRA, which required preclearance for any changes in election laws by states with a history of discrimination. Chief Justice John Roberts claimed the section was obsolete because racial discrimination in voting no longer existed. Associate Justice Ruth Bader Ginsberg famously wrote in dissent that getting rid of Section 5 because it had been so effective was like "throwing away your umbrella in a rainstorm because you aren't getting wet." And indeed, she was right. Since 2013, those same states that were under preclearance rules rushed to enact draconian laws that suppress the vote in minority communities.
The same "logic" seems to be infecting the Court with respect to Section 2. Once again, the goal is to weaken this section to such an extent that it is worthless as a tool to prevent race discrimination, while claiming its decision is in service of the goal to which we simpletons down below should all aspire if only we had the vision to do so: race neutrality. Can't we all just get along?
The Court can accomplish this sleight of hand by once again ignoring the facts on the ground and assuming that all Black voters are Democrats, so allowing them to vote for Democrats should be sufficient for purposes of that pesky Fifteenth Amendment. This argument, put forth by the Deputy U.S. Solicitor General Hashim Mooppan, is especially infuriating and hypocritical. The Trump administration and Louisiana Solicitor General Benjamin Aguiñaga spilled a good deal of ink bemoaning the appellants' alleged "stereotyping" of Black voters that they all vote alike, and so should be placed into the same districts with each other. And yet, the government's entire argument itself rests on stereotyping: that Black voters only elect Democrats.
This argument ignores the central purpose of the VRA—that the Fifteenth Amendment's prohibition against discriminatory voting laws and Congress' power to enforce the amendment requires examining whether minority groups are being prevented from electing their preferred candidates through vote dilution or other means, whether intentional or not. It is the Fifteenth Amendment itself that guarantees that minority groups' voting rights not be abridged. This requires an examination of the voting patterns of minority groups in the jurisdictions where their rights are alleged to have been violated. One can't ignore race to rectify race discrimination. And yet this Court is trying mightily to do just that.
To accomplish this, they are likely to convert Section 2 into an intent-only prohibition, even though the Fifteenth Amendment uses the passive voice ("the rights of citizens of the U.S. to vote shall not be denied or abridged... on account of race..."), and to limit its duration, even though Congress did not include such a time limit. (Silly us, we thought Congress was supposed to write the laws—so much for Schoolhouse Rock.) Plaintiffs alleging a racial gerrymander will only succeed if they can prove intentional race discrimination. At the moment, they need only prove a discriminatory impact, whether it was intentional or not.
If the Justices bothered to confine themselves to the facts of this case, there was a mountain of evidence, including statistics and witnesses, to show that the original Louisiana map resulted in race discrimination against Black voters. The evidence showed that Black voters could not elect their preferred candidate if their votes were diluted. For example, white Democrats would not elect a Black Democrat over a white one and neither would white Republicans. So, in this case, even if the legislature articulated a purely partisan reason for the original map and had no ill intent, the effect would still be discriminatory and could only be remedied by taking race into consideration. The Court apparently doesn't believe that's appropriate.
Put another way, the Court seems determined to make it virtually impossible to prove a Section 2 violation. Associate Justice Brett Kavanaugh even seemed to endorse an argument by Mooppan that so long as a state can articulate a partisan basis for the gerrymandering, even if it's just a pretext for racist maps, that will satisfy Section 2. Just keep your racist motives to yourself and come up with some other plausible explanation and you can discriminate to your heart's content. After all, that was really the goal of the Fifteenth Amendment—just to pay lip service to equal voting rights.
If the Court holds that race can never be considered even to remedy a discriminatory map, and even if the main goal is permissible partisan gerrymandering, there is no doubt we will see aggressive dismantling of all majority-minority districts, as (V) pointed out in yesterday's item. And the justification will be that the state is merely complying with the law as redrafted by the Supreme Court. So much for judicial restraint and non-activist judges—the Republicans will have officially cornered the market on judicial activism, if that is the outcome here.
So, if the Supreme Court is going to pursue this course of action, and if the red states are going to use that to get rid of majority-minority districts and gerrymander their states to create even redder House delegations, the Democrats are screwed, right? Well... not so fast. The red states are not the only ones that have majority-minority districts. The blue states do, too. The effect of this, in red states, is usually to turn a red district into a blue one. The effect of this in blue states, by contrast, is to turn a blue district into an even bluer one. The general situation is that because blue-state minority voters live mostly in cities, and cities lean very blue, it's not especially possible to make districts that have: (1) a majority of minority voters AND (2) a sizable number of Republican voters. It's necessary to choose one or the other. The former increases minority representation in Congress, while the latter is the key to gerrymandering, since making a district 45%-47% Republican keeps it safely Democratic while rendering the maximum number of Republican votes moot.
Consider an example. The D+22 NY-08, currently represented by Yvette Clarke (D) is plurality Black (about 40%) and is also majority-minority (about 60%). It is next to NY-11, the R+10 district currently represented by Nicole Malliotakis (R). It would not be too hard to move some white Republicans out of NY-11 and into NY-08 (and also into next-door NY-09, which is also plurality Black, and is represented by Hakeem Jeffries, D). But doing so would likely make NY-08/NY-09 plurality white, and might end those districts' majority-minority status, as well. So, New York hasn't done it, in part due to a belief in fairness, and in part due to the VRA.
There are a fair number of majority-minority districts like this in New York, New Jersey, Illinois and California. There is already a VRA-free map of New York that hands the Democrats five more seats in that state. There is a VRA-free map of Illinois that would wipe out all three of that state's Republican representatives. New Jersey should be able to send either two or all three of its Republican representatives to the unemployment line. Nevada would be able to do the same with its only Republican representative (Mark Amodei). California might even be able to get into the act, despite the fact that it's already about to re-gerrymander its maps. The best estimates are that the blue states could pick up 12-14 seats this way.
On hearing this, the skeptic might observe that: (1) some or all of these states might not have the political will to play hardball like this; (2) some or all of these states have redistricting commissions or other laws that make this kind of hardball difficult or impossible or (3) some of these states have, or may have, Republicans in positions of power, and people like Gov. Joe Lombardo (R-NV) are not likely to sign off on something like this.
Fair enough. However, as California looks likely to demonstrate a few weeks from now, you can never know what will happen when people get desperate. More importantly, however, if the Supreme Court does rule that majority-minority gerrymanders are not acceptable, then... they all become unacceptable. The Louisiana case was brought by a group of white Republicans who felt they were being short-changed with the two-majority-minority-district Louisiana map. One could imagine the same happening in New York or Illinois. One could also imagine people who are actually friendly to the Democrats bringing such suits, too. This would give Democratic leaders plausible deniability. "I didn't WANT to undermine the Black plurality in NY-08," Gov. Kathy Hochul (D-NY) might say, "but the courts said I HAD to."
Whether or not there end up being shenanigans in blue states, the decision the Supreme Court appears poised to make will almost certainly have these four consequences: (1) less diversity in Congress, (2) greater polarization in Congress, (3) more voter support for federal anti-gerrymandering legislation, and (4) more voter resentment of the Court, and thus more support for some sort of change to the Court's structure or power. John Roberts does not seem to care about #1, and he might not care about #2, but #3 and #4 are likely concerning for him, particularly given the possibility that the Democrats might be able to prevent the anticipated loss of House seats. We don't really know if Roberts ever thinks long and hard about his decisions—he seems not to, since he's often surprised by predictable outcomes. In this case, though, he really should. (L & Z)