The Supreme Court’s Whites-First Reasoning on Gerrymandering

Will the Supreme Court’s evident desire to assist the GOP before the midterms override a decision by three Republican-appointed judges to spare Black-majority districts in Alabama from being gerrymandered out of existence?

This is the question posed by possible Supreme Court review of the finding by an Alabama judicial panel that Alabama could not use a congressional district map that deliberately discriminated against Black voters.

Two of the three judges on the panel, which found race-based discrimination, had been appointed to the bench by President Donald Trump; one, by President Ronald Reagan. The issue now is whether the conservative justices of the Supreme Court will upend the panel’s racial discrimination finding, notwithstanding that the Alabama judges had followed legal standards set in the Supreme Court’s recent decision in Louisiana v. Callais.

If they allow the Alabama decision stand, it will be a rare exception to the flood of Supreme Court-encouraged gerrymandering prompted by the Callais decision. Those Republican gerrymanders are likely to purge one-third of African-American representatives from Congress by destroying the Black-majority districts that elected them.

For the Supreme Court to say there is no remedy because the racial wrong is politically advantageous to a party whose politics rest on racial ideology is a travesty of reason and justice.

Nonetheless, the six justices of the Supreme Court who caused this political bloodbath along racial lines claim that Republican gerrymandering does not violate the voting rights of African Americans. The purge is lawful under the Voting Rights Act, say the justices, because the GOP has partisan reasons to eliminate the Black districts that cannot be “disentangled” from racial motives.

Through a convoluted logic we explore below, and in the supposed interests of a “color-blind” Constitution, the right-winger justices have emasculated the Voting Rights Act. The majority insists we ignore the reality of race relations in America and ignore the link between Republican partisanship and Republican racial politics. But judicial ignorance cannot yield justice.

Partisanship and race have always been inextricably linked in Southern politics. Since party identification for white people in the South has, first and foremost, been driven by race, any “disentanglement” requirement makes it impossible for the Voting Rights Act to protect the voting rights of Black and other minority citizens.

The 15th Amendment to the Constitution, adopted in 1870, recognized that the right to vote serves as the great protector of civil and human rights. The amendment prohibits states from denying or abridging the right to vote on account of race. But for nearly a century, the former Confederate states in effect suspended the 15th Amendment. Decade after decade, they prevented Black people from voting through legal chicanery, violence, and economic intimidation.

The long civil rights struggle of the 1950s and 1960s against Jim Crow and for racial equality reached its culmination in the Civil Rights Act of 1964 and the Voting Rights Act of 1965. The Voting Rights Act recalled the 15th Amendment to life by giving federal courts broad and flexible authority to protect African-American voting rights. Overwhelming majorities of both parties supported the act, with 80% of senators and 80% of congresspeople voting for it.

Among other protections, Section 2 of the Voting Rights Act prohibits states from imposing any electoral “practice or procedure... in a manner which results in a denial or abridgement” of the right to vote “on account of race or color.” Notably, it does not require proving the racial intentions behind supposedly neutral voting requirements or election practices. The Voting Rights Act was passed precisely to protect the Black franchise even when those who oppose Black voting rights don’t say so out loud. Consequently Section 2 bars a practice if it “results in... abridgement” of voting rights.

In an effort to avoid any ambiguity, the act was amended in 1982 to specifically confirm that Section 2 is violated if a political processes gives racial minorities “less opportunity than other members of the electorate... to elect representatives of their choice.”

For decades federal courts applied this provision to protect African-American voters from racial gerrymandering. But in last month’s Louisiana v. Callais decision, the Supreme Court deleted those protections and turned the Voting Rights Act upside down. What was the supposed logic behind the decision?

Callais expanded on the court’s 2019 decision in Rucho v. Common Cause, which unleashed states to engage in unlimited gerrymandering. “Partisan” gerrymandering represents a majority party power grab. With gerrymandered districts, a slight majority of voters could elect a supermajority in a state legislature. Or, as President Trump hopes this year, multistate gerrymandering might give the GOP enough purloined congressional seats to retain their hold on Congress even if most voters, nationwide, vote against Republicans.

Gerrymandering defies the fundamental principles of America constitutional democracy; nonetheless the Rucho majority held that courts could not restrain the practice.

Bad enough. But in this anti-democracy decision, the conservative justices also found an excuse for gutting the Voting Rights Act.

Disempowering Democratic voters and disempowering African-American voters commonly go together, and the court’s right-wingers saw a danger: Disadvantaged voters might try to “evade” Rucho’s green-lighting of gerrymandering by “repackaging a partisan-gerrymandering claim as a racial-gerrymandering claim.”

This stands reality on its head. The real danger is packaging (and therefore excusing) a racial gerrymander as a partisan one. Of the two “risks,” why did the right-wingers choose to privilege the one that de facto enhances white voting power, not the voting rights of citizens of color?

The “danger” in thwarting partisan gerrymandering is that a white majority won’t be allowed to unfairly magnify its power beyond its actual level of voter support. The danger in racial gerrymandering is that voters of color will, once again, be denied a meaningful voice in the political process because of race. In a multiracial democracy with a history of white racial oppression, it is obvious which concern should matter more. Except to white nationalists and their allies.

In order to put a state’s supposed “right” to gerrymander first, the conservative justices held that African-American voters who attack gerrymandering as racially discriminatory have a “‘special’ burden to overcome.”

“Courts must treat partisan advantage like any other race-neutral aim,” so an African-American plaintiff must “disentangle race from politics” and prove racial considerations drove a decision to eliminate Black majority districts.

“If either politics or race could explain a district’s contours, the plaintiff has not cleared its bar,” the Callais majority held, and the state is free to gerrymander away African-American congressional districts.

The right-wing justices have not interpreted the Voting Rights Act. They have interred it.

The unexamined premise of disentanglement is that partisan advantage is a “race-neutral aim.” But how can partisan advantage be deemed “race neutral” when the very identity of the political party seeking advantage rests on racial ideology?

Supreme Court Justice Oliver Wendell Holmes once wrote, “A page of history is worth a volume of logic.” So it is here.

Following the Civil War, white Southerners became the “Solid South” of the Democratic Party. The politics of the Democratic Party were grounded, before all else, on white supremacy. But in the 1960s, as the national Democratic Party became the party of civil rights, Southern support of Democrats eroded, then washed away.

White segregationist voters fled to the GOP, pushed by President John F. Kennedy’s and President Lyndon B. Johnson’s support for civil rights and pulled by Republican support for resistance to integration. The GOP’s Southern Strategy was employed by Richard Nixon in 1968 and Ronald Reagan in the 1980s. Reagan’s presidential campaign launch in Philadelphia, Mississippi, notorious as the site of the murder of three civil rights workers, made unmistakable that Reagan was making a racial appeal to anti-integration white Southerners.

The racially motivated movement of white voters transformed the South from Democratic stronghold to Republican bastion. The GOP’s stance on race also found a sympathetic audience among whites outside the South, who often fought to preserve de facto segregation and white advantages.

In short, the Republican Party of the last 56 years was constructed on white resistance to integration and opposition to African-American rights. When, consequently, Republican politicians attack African-American political participation, the attacks advance GOP partisan interests by invoking voter-perceived racial concerns.

There can be no disentangling of race and politics when the means of attaining partisan advantage is racial politics—any more than you can “disentangle” cream from coffee after you’d poured it in. The mixture of race and politics is the Republican flavor.

By imposing a “disentanglement burden” on those seeking the protection of the Voting Rights Act, conservative justices made it impossible for the act to ever provide a remedy for the denial or abridgement of minority voting rights. What is true of redistricting applies to any other electoral practice that impairs minority voting effectiveness: Its discriminatory impact must always confer partisan advantage on a political party whose underlying ideological appeal is white resentment and white supremacy.

Consider what this means for people of color in our multinational, multiracial society.

Discrimination, past and present, in housing, zoning, employment, education, policing, and community resources, along with inequalities in wealth and income, have contributed to concentrating African Americans and of other people of color in America’s inner cities.

Although racial minorities are inevitably vulnerable in a larger society that disdains them, the existence of population centers in which minorities are the majority should at least mean that those non-white majorities can elect representatives to the tables of power. In the language of the Voting Rights Act itself, they are entitled to equal “opportunity... to elect representatives of their choice.” Redistricting that is simultaneously racial and partisan denies that right.

Tennessee’s post-Callais redistricting divided Memphis, a city with a 63% African-American majority, into three pieces, which were then distributed to three majority white districts. What could be more obvious than that this is precisely the kind of political practice Congress intended to outlaw in passing the Voting Rights Act? But the court’s “disentanglement burden” likely makes this legal atrocity untouchable.

For the Supreme Court to say there is no remedy because the racial wrong is politically advantageous to a party whose politics rest on racial ideology is a travesty of reason and justice. The Republican Party’s entanglement of politics with race is no reason for the Supreme Court to deprive minorities of the opportunity to elect representatives of their choice.

The right-wing justices have not interpreted the Voting Rights Act. They have interred it. Since their timely promotion of Republican political advantage cannot be disentangled from the GOP’s racial politics, we can fairly conclude that Supreme Court Justices John Roberts, Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett are intentionally advancing white supremacy.