Voting Rights Ruling Could Help Dems

Posted bydave cieslewiczPosted inUncategorized

In support of last week’s Supreme Court decision on the Voting Rights Act, I’m tempted to run the image below and just drop the mic.

The red area above is Louisiana’s Sixth Congressional District and the one that was struck down by the Court. It is the very definition of a gerrymander, which was a term coined to describe districts drawn in 1812 by Massachusetts Gov. Elbridge Gerry that looked like salamanders.

The district exists because a lower court ruled that Louisiana hadn’t created enough majority Black districts. In order to create another one, the legislature drew this snaking district which connects Black communities.

This, of course, is a gerrymander for purposes of racial representation, but gerrymanders are most commonly used for partisan purposes. In fact, here in Wisconsin, after the 2010 census the Republicans committed what many believe to be the most severe partisan gerrymander anywhere in the country and perhaps in American history.

One of the ironies of last week’s SCOTUS ruling is that the Court had previously ruled that it wouldn’t touch extreme partisan gerrymanders because, while troubling, they couldn’t be defined. I strongly disagreed with that ruling (they’re actually easily defined), but I think this latest decision makes sense, which like so many other issues, puts me in political no man’s land.

Democrats have blasted both rulings while Republicans like them both. Those of us who regret the first and cheer the second could hold a convention in a closet.

I like the ruling against racial gerrymanders for a bunch of reasons. First, I agree with the Court majority that they aren’t necessary. Currently, 63 of the 435 members of the House are Black. That’s 14% which matches the overall Black population perfectly. The number has steadily increased since the Voting Rights Act was passed in 1965.

But the VRA didn’t envision creating racially gerrymandered districts. Rather, it sought to tear down barriers to Black voting, like poll taxes and literacy tests. The VRA sought to create a level playing field. But things took a turn in the 1980’s when a federal court ruled that some innocuous language in the VRA saying that people should have a chance to vote for the candidate of their choice actually meant that Black voters should have a chance to elect Black candidates, as if race is all that mattered.

That unfortunate ruling was at the start of a few decades where the whole concept of civil rights took a wrong turn. Affirmative action, which was also about leveling the field and fighting discrimination, morphed into Diversity, Equity and Inclusion programs that promoted active discrimination to make up for past discrimination. When we moved away from the principle of fighting racial discrimination and toward the notion that discrimination was okay, and even necessary, we lost vast swaths of the American public. It was a horrible mistake that this ruling, in addition to a broader backlash against DEI, starts to correct.

Opponents of the ruling claim that it could result in the loss of as many as 15 Black House seats. We’ll see, though I suspect they’re overstating the case because the number of Black Republican representatives is likely to keep increasing. One of those Black Republicans is Josh Williams, who represents a white-majority lower house district in Ohio. “The idea that Black Americans need special districts carved out just for them is complete nonsense,” Williams posted on social media, noting that he was currently running for Congress in a district that is also majority-white. “It’s a violation of the law and blatantly unconstitutional.”

And let’s be honest about this. If Williams were to gain a House seat for Black Americans, liberals would not cheer. The same applies to Justices Clarence Thomas and Amy Coney Barrett. Thomas gets no credit for being Black and Barrett none for being a woman because they are conservatives. Democrats would be glad to see them replaced by white men, so long as they were liberal white men. The hypocrisy here is just so obvious.

But here’s a twist you may not have thought about. It could be a blessing in disguise for Democrats.

Something people forget is that when Wisconsin Republicans, under pressure from the state Supreme Court, adopted Democratic Gov. Tony Evers’ maps, some of the ‘no’ votes came from Black Milwaukee Democrats. They were unhappy because they saw that the maps, while helping their party pick up seats, also diluted some Black districts. The upshot was that some of those new districts favoring Democrats might not necessarily deliver Black Democrats.

Because blue states no longer have to maintain Black majority seats by packing those voters into a few districts, they can split them up, creating more Democratic leaning districts. So, I get why Black Democrats might object. But since white liberals tend to want to support Black candidates, I wouldn’t be so sure that this will actually result in fewer Black representatives.

That’s my theory, but of course, nobody knows what all this will mean for the partisan makeup of Congress or state legislatures going forward. In fact, we might not be able to appreciate the full impact until after the 2030 census and the redistrictings that will follow. But it’s entirely possible that for every red state that wants to use this ruling to create fewer Black (read, Democratic) districts, a blue state will use it to spread out Black votes, creating more Democratic seats.

The bottom line is that it’s way too early to declare this a big victory for Republicans or even to claim with much confidence that it will reduce the number of Black representatives. And, if it makes us consider voters as individuals with a simple right to vote, rather than as faceless members of a bloc that votes all the same, so much the better. Now, that would be true progress.

Published by dave cieslewicz

Madison/Upper Peninsula based writer. Mayor of Madison, WI from 2003 to 2011.

2 thoughts on “Voting Rights Ruling Could Help Dems”

  1. A lot to unpack and clarify in this one, on a complex subject. I’ll try to be as brief as I can and I can’t cover everything. But I do appreciate the attention paid to this decision. 

    [1]: “But the VRA didn’t envision creating racially gerrymandered districts. Rather, it sought to tear down barriers to Black voting, like poll taxes and literacy tests. The VRA sought to create a level playing field. But things took a turn in the 1980’s when a federal court ruled that some innocuous language in the VRA saying that people should have a chance to vote for the candidate of their choice actually meant that Black voters should have a chance to elect Black candidates, as if race is all that mattered.”

    • A lot here to clarify.
    • In a 1973 case, White v. Regester SCOTUS determined that under the 14th Amendment political subdivisions (states, counties, cities, etc.) could not dilute minority voters so that they had less opportunity to participate in the political process and elect legislators of their choice. That is, the effects (results) of the districting or type of political body could violate the 14th amendment.
    • In 1980, in City of Mobile v. Bolden, SCOTUS reversed course and stated a violation of the 14th Amendmentrequired discriminatory intent, the fact that a districting scheme had discriminatory effects did not create a claim under the 14th Amendment. The challenge in Bolden was that the city Mobile had 3 city commissioners who were elected at large. The effects were that no Black person had ever been elected to the commission despite the 35% of the population of Mobile being Black.
    • In response to Bolden, Congress amended the VRA in 1982 to explicitly prohibit any voting practice that “results” in the denial or abridgement of the right to vote based on race. In short, the statute incorporated the reasoning of White that minorities cannot have less opportunity to participate and elect a candidate of their choice.
    • So no, a federal court didn’t randomly rule after 20 years that “some innocuous language in the VRA” required this. Instead, the courts were following a statute, as written, that Congress had just amended. (Signed by Reagan no less, with a Republican Senate.)
    • But in the decision last week in Callais, SCOTUS rewrote years of its precedent to reverse to an intentional discrimination standard under the VRA. I.e., to win a section 2 claim under the VRA, plaintiff’s must find a smoking gun that the districting was done specifically because of race.
    • This leads to two of the most egregious parts of the ruling last week in Callais. First, this overturns years of the Court’s precedent (without specifically saying so). Precedent is supposed to be followed, and it carries “enhanced force” when, like here, the precedent is interpreting a statute. Because if Congress does not like the Court’s interpretation, they can change the statute. Congress has not done so in over 40 years of the Court interpreting the VRA. Second, as explained above, while under Bolden the Constitution only prohibits intentional discrimination based on race, Congress has long been understood to have the power to enact legislation to enforce the promises of the 14th and 15th amendment “by appropriate legislation.” For decades Congress has enacted legislation, in many contexts, that prevents result-based discrimination, not just intentional discrimination. In short, the hypocrisy is thick with this SCOTUS that often decries “judicial overreach” of previous courts.
    • Also, in 2021 SCOTUS also placed an intent test on practices like “like poll taxes and literacy tests.” A study showed there have been 0 successful lawsuits since that ruling under the VRA.

    [2]: “One of the ironies of last week’s SCOTUS ruling is that the Court had previously ruled that it wouldn’t touch extreme partisan gerrymanders because, while troubling, they couldn’t be defined. I strongly disagreed with that ruling (they’re actually easily defined), but I think this latest decision makes sense, which like so many other issues, puts me in political no man’s land.”

    • Well, the Court in Callais doubled-down and affirmatively said the redistricting for partisan purposes is totally fine. Despite the fact the political preferences often track along racial lines, those two must be disentangled to prove a VRA claim now. In other words, district shapes like the one you show above will likely be more common now. One can imagine districts, drawn, like sprockets on wheel to reach into urban areas from rural areas to crack votes.
    • Also, as hinted at above, the VRA initially mostly remedied minority vote dilution in the kind of districts used, like the at-large district in Mobile, or multi-member districts that were used to prevent minorities from electing any candidates. After those were remedied, the vote dilution tactic switched to the cracking and packing seen in gerrymandering – like the map above. With this new ruling, the old types of vote dilution, via the kind of district, will likely come back to city councils, school boards, county boards etc. 
    • I am less optimistic about you as to the progress of our nation in being less racist. To pull from the district court’s record in Callais. “The evidence showed that as few as 12% of White voters in Louisiana would support Black-preferred candidates in statewide contests… the court assessed the totality of the circumstances recounting, among other things, the State’s long history of racial discrimination, including that “Louisiana has never had a Black Congressperson elected from a non-majority-Black district”

    [3]: “First, I agree with the Court majority that they aren’t necessary. Currently, 63 of the 435 members of the House are Black. That’s 14% which matches the overall Black population perfectly. The number has steadily increased since the Voting Rights Act was passed in 1965.”

    • To borrow from RBG in a different VRA case, that reasoning is like “throwing out your umbrella in a rainstorm because you aren’t getting wet.”
    • Also, the statistic you picked doesn’t make sense to me. Why does it matter if the House Black proportion matches the national population? The House is a body that represents the citizens of the states. It isn’t elected nationally at-large. The statistics that would be more apt is the proportion in each state that has representation in their state delegation. Said differently, I think Black voters in NYC might have different priorities than Black voters in the South or West.

    [4] “Something people forget is that when Wisconsin Republicans, under pressure from the state Supreme Court, adopted Democratic Gov. Tony Evers’ maps, some of the ‘no’ votes came from Black Milwaukee Democrats. They were unhappy because they saw that the maps, while helping their party pick up seats, also diluted some Black districts.”

    • I believe that is because the original map that passed created another majority-Black district, but SCTOUS reversed that map, requiring the map you described be drawn instead. 

    [5] “And, if it makes us consider voters as individuals with a simple right to vote, rather than as faceless members of a bloc that votes all the same, so much the better. Now, that would be true progress.”

    • Yes, voters are people and people are complex and cannot be categorized neatly into boxes based on one trait.
    • However, the reality is that voters’ race heavily corresponds to their political preferences throughout most of the country. This decision supercharges the ability to gerrymander because partisan advantage is a fine reason.

    Finally, I should also note that the vote dilution claims under the VRA were not easy to meet. The evidence presented in district courts is staggering, the district court opinion in Callais was over 100 page long. One of the factors that plaintiffs needed to meet was to show actual racial polarization. That is, they needed to show that whites voted as a bloc to defeat minority-preferred candidates. In other words, that the group suing was politically cohesive not just racially cohesive. Your post seems to undervalue these criteria. The VRA didn’t just allow districts to be drawn because minorities lived there, as your post suggests. They had to show they were racially AND political cohesive AND had been routinely denied representation. 

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    1. Ok. So, look. Any other site have anybody who writes a response like this? I think not. I’m not saying that my blog DESERVED this level of insight. I’m just saying that.. well… yeah, I am, in an indirect way, taking credit for it. So sue me.

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