The Redistricting Wars Prove History Doesn't Move in Just One Direction
Abandoning the solemn commitment America made to guarantee equal representation regardless of race is a grave threat to our system of governance. And the fact that the Supreme Court has done it to enable partisan gamesmanship offends that legacy.
The late 19th century was a dismal time in American politics. Corruption ran rampant. Congress was governed by staunch partisan loyalties and nail-biting majorities. And redistricting, instead of being confined to after the census every 10 years, was a tool of manipulation and partisan hardball. “From 1872 to 1896,” a political scientist reports, “at least one state redrew its congressional districts each year.”
Of course, that era was marred by another phenomenon—one too familiar to us today. It saw a swift rollback in voting rights and representation for the newly freed Black population of the South. In 1875, after the Civil War and the adoption of the 15th Amendment, seven Black men served in the House, and one sat as a senator. Terrorism, political cowardice, and racial backlash ended Reconstruction. By 1902, Congress was once again all white.
That status quo largely held until the civil rights movement of the mid-20th century, culminating in the Voting Rights Act of 1965. The law ushered in the multiracial democracy we have taken for granted.
Nearly two weeks ago, the Supreme Court supermajority finished its project of demolishing the law. The ruling in Louisiana v. Callais convulsed American politics. Since then, we have seen an ugly frenzy in Southern states, a brutal redrawing of district lines that could, as scholar Rick Hasen put it, “bleach the halls of Congress, state legislatures, and local bodies like city councils.”
Congress must act. It can ban partisan gerrymandering nationwide, in red states and blue states alike.
Since the ruling, Louisiana has gone back to the drawing board to erase one of its majority-Black districts, even though early voting had already begun in the primary election that was set for May 16. Preparations are underway in Alabama and Mississippi for redrawing their maps. Just last week, Florida passed a new map, which had been in motion in anticipation of a favorable Supreme Court ruling. In some states, as in Tennessee, Black voters could be left without any effective congressional representation.
Blue states, too, are scrambling to redraw maps to help their party, though their success remains to be seen. In a surprise ruling last week, a closely divided Virginia Supreme Court struck down the just-passed constitutional amendment that gave the legislature the power to redraw the state’s congressional map, which would have likely handed several seats to Democrats.
While gerrymandering remains unpopular among voters at large, among the activists whose votes tend to control primaries, party loyalty rules. In Indiana, for instance, several legislative challengers backed by President Donald Trump defeated most of the incumbents who refused to get on board with the Republican redistricting agenda.
Pundits who tally up the wins for each party may be missing the bigger point: Soon, state congressional delegations will begin to resemble the Electoral College—all red or all blue. Recall that Trump won 1 in every 3 votes cast in Massachusetts, while Kamala Harris won a similar share of the votes cast in Tennessee, yet both states will have monolithic party delegations.
What can be done?
The raw power grabs on display may be just the kind of thing to rouse voters to anger. Yes, midterm elections in November will turn on issues such as affordability and the war in Iran. But when people feel something being wrested away from them, they can fight back.
And Congress must act. It can ban partisan gerrymandering nationwide, in red states and blue states alike.
It should enact legislation to make clear that American citizens can sue to protect their right to vote when it is infringed. Legislation should give voters of color a meaningful opportunity to prove intentional discrimination, and it should make sure that judges apply strict scrutiny to laws that impinge on the franchise.
And Congress should recognize the danger of an unelected Supreme Court—highly ideological, appointed for life—taking a hammer to laws that uphold political equality. This past month reinforces the need for court reform, including an 18-year term limit for justices.
Want more proof of the political role the court has assumed? Alabama took, as Brennan Center senior fellow Joyce Vance put it, a “nanosecond” to rush to the justices for permission to gain the “benefit” of Callais, even though primary voting starts in a week. The justices quickly agreed, even though the state’s map had already been found intentionally racially discriminatory by a lower court, allowing the state to eliminate one of the two districts represented by Black lawmakers. This contravenes years of the high court’s assurances that rules should not change too close to an election. Calling balls and strikes? The fix seems to be in.
Alabama, of course, is where Selma is located. Its history is more complex than you might imagine. Here’s what I wrote in my book The Fight to Vote:
Alabama previously had one of the most democratically robust systems in the country, including universal male suffrage and a bar against gerrymandering. But its new Jim Crow constitution gave county registrars great discretion in barring African American voters. White men could vote without anyone attesting to their good character, but Black men required the recommendation of a white voter. As a result Black voting rates fell from 180,000 to fewer than 3,000 between 1900 and 1903.
History emphatically does not move only in one direction.
Abandoning the solemn commitment America made to guarantee equal representation regardless of race is a grave threat to our system of governance. And the fact that the Supreme Court has done it to enable partisan gamesmanship offends that legacy.
The Brennan Center was named after Justice William J. Brennan Jr., a leading force in the brief but celebrated period when the court actually moved to ensure equality in our election system. He authored the opinion in Baker v. Carr, which established the willingness of the court to enforce what would become the “one person, one vote” rule. He also wrote Thornburg v. Gingles, which set national standards so that voters of color could go to court and seek remedies when officials unfairly limited their opportunity to elect candidates to Congress. That American achievement is what the Supreme Court has so casually tossed away. It may be a long time before the court will once again play a positive role in our democracy.
The stakes are high. Brennan put it well: “The Constitution will endure as a vital charter of human liberty as long as there are those with the courage to defend it, the vision to interpret it, and the fidelity to live by it.”
