DEMOCRACY WATCHAnother Look at Gerrymandering
Perhaps the ultimate solution to the gerrymandering issue lies in a congressionally prescribed voting regimen that incorporates multi-member districts, at-large candidates, or outcomes that are proportional to party affiliation. To be sure, those options raise additional problems—a topic for another day.
On April 29, in Louisiana v. Callais, the Supreme Court examined what might be characterized as reverse gerrymandering. Four years earlier, in 2022, a federal judge ordered the state to redraw its congressional map to create a second majority-Black district. Previously, only one of six districts was majority-Black, even though 33 percent of the population was Black. After the legislature complied, non-Black voters claimed reverse discrimination. In response, the state insisted that the redistricting process was driven by partisan, not racial, goals—to preserve the seats of Speaker Mike Johnson and Steve Scalise.
Ordinarily, because it’s difficult to establish equitable standards for redistricting, courts do not intervene if the goals are partisan rather than racial. In Rucho v. Common Cause (2019), the Court decided that it would defer to the political process in resolving partisan disputes. But racial motives are barred by the 1965 Voting Rights Act (VRA), the 15th Amendment, and the 14th Amendment’s Equal Protection Clause.
Prior to Callais, here was the framework: Section 2 of the VRA banned discrimination in voting based on race, color, or language-unique ethnicity. In Shelby County v. Holder (2013), the Court struck down the pre-clearance formula in Section 4 as outdated, but Section 2 remained in effect. The applicable rules for Section 2 were established in Thornburg v. Gingles (1986). Majority-minority districts were OK under Section 2 as long as minority populations were: (1) sufficiently large and compact to constitute a majority within a district; (2) politically cohesive (i.e., they vote similarly); and (3) unrepresented due to bloc voting by the racial majority. If those three conditions were met, the Court then looked to the “totality of the circumstances.”
Additionally, said the Gingles Court, it was not necessary to prove intentional discrimination; discriminatory impact was sufficient. Later, in Allen v. Milligan (2023), the Court affirmed Gingles and rejected Alabama’s argument that majority-minority districts must be drawn in a strictly race-neutral way—e.g., using algorithms that ignore race. The Court specified, however, that race may not be the predominant factor. This term, in Callais, the Court has materially refined Gingles.
The Court could have gone in several directions. First, the Court could have declared that the 1965 VRA is unconstitutional—either because the 14th and 15th Amendments do not permit race-based remedies or because conditions have changed and the VRA is no longer effective or even necessary. That outcome would have overturned 60 years of Supreme Court jurisprudence. Second, the Court could have decided that Louisiana’s motives were permissibly partisan, not racial, in which case the state would have prevailed. Instead, the Court pursued a third option—modifying the Gingles framework that governs Section 2 violations.
