“As a child in the deep South, I’d grown-up fearing the lynch mobs...as an adult, I was starting to wonder if I’ve been afraid of the wrong white people all along. My worst fears had come to pass not in Georgia but in Washington DC where I was being pursued not by bigots in white robes but by left wing zealots draped in flowing sanctimony.”
—Justice Clarence Thomas
“Racial gerrymandering is cool but only when it benefits the Democrats.” I sadly suspect this is the de facto legal status quo in the United States of America when it comes to congressional redistricting.
Indeed, where the Voting Rights Act of 1965 was meant to prevent racial discrimination in American elections, it is now used as an unprincipled cudgel to privilege racial discrimination in a particular direction that almost always benefits the Democratic Party.
If gerrymandering is an inherently political process whereby partisans use their power to draw election maps to maintain and gain more power, then that process must be equally allowed to all partisans in power – regardless of their party, sex, race, color or creed – or even the sovereign state in which they reside.
Unfortunately, Democrat partisans in blue states are effectively “more equal” in their gerrymandering powers than red state Republican partisans, especially in the deep South.
Why can’t deep red Texas, Louisiana or Alabama draw a congressional map that benefits the party in power just as deep blue New York, Massachusetts, California and Illinois do to their benefit?
The answer, in part, lies in the Voting Rights Act – specifically, how Section 2 of the law is interpreted and applied by federal courts.
Alabama was recently ordered by the federal courts to create a second black-majority congressional district after the Supreme Court ruled against the state in 2023’s Allen v. Milligan. Unsurprisingly, Alabama Democrat Shomari Figures now represents the brand-new, court-ordered congressional District 2 (where I happen to reside).
Though political representation has long felt like a farce to me no matter my congressional representative, the court’s ruling in Milligan only makes the farce greater. I went from being represented by Alabama’s most conservative congressman, Barry Moore, to being represented by the former deputy chief of staff for Attorney General Merrick Garland – all because some federal court said so – and for reasons much more nebulous than the court’s majority would have you believe.
After recently reading through the Supreme Court’s majority opinion in Milligan, which felt like perusing a Kafka novel stripped of its existential intrigue, I was left more confused than enlightened.
On a common-sense basis, at least to this citizen, the opinion seems to read that the state of Alabama isn’t allowed to gerrymander to the GOP’s benefit, even in a race-neutral way, so the court hereby orders the state of Alabama to gerrymander in a race-conscious way to Democrats’ benefit.
Something especially felt off about the logic of the Gingles test used by the court’s majority to make their decision – that there was no clear objective standard guiding their logic – and that much like politicians, they were just making things up along the way, poorly pounding the political power plays and compromises enshrined in legislative law into counterfeits of principled reasoning.
Luckily, my sentiment was seemingly vindicated when I read Justice Clarence Thomas’s dissent (starting on page 46) in the case.
Here are a few excerpts:
By affirming the District Court ... It guarantees that courts will continue to approach vote-dilution claims just as the District Court here did: with no principled way of determining how many seats a minority ‘should’ control and with a strong temptation to bless every incremental step toward a racially proportional allocation that plaintiffs can pass off as consistent with any reasonable map.
…
[B]y approving the plaintiffs’ racially gerrymandered maps as reasonably configured, refusing to ground §2 vote-dilution claims in a race-neutral benchmark, and affirming a vote-dilution finding that can only be justified by a benchmark of proportional control, the majority holds, in substance, that race belongs in virtually every redistricting. It thus drives headlong into the very constitutional problems that the Court has long sought to avoid. The result of this collision is unmistakable: If the District Court’s application of §2 was correct as a statutory matter, §2 is unconstitutional as applied here.
…
The plaintiffs did not even prove that it is possible to achieve two majority-black districts without resorting to a racial gerrymander. The most that they can be said to have shown is that sophisticated mapmakers can proportionally allocate Alabama’s congressional districts based on race in a way that exceeds the Federal Judiciary’s ability to recognize as a racial gerrymander with the naked eye. The District Court held that this showing, plus racially polarized voting and its gestalt view of Alabama’s racial climate, was enough to require the State to redraw its districting plan on the basis of race. If that is the benchmark for vote dilution under §2, then §2 is nothing more than a racial entitlement to roughly proportional control of elective offices—limited only by feasibility—wherever different racial groups consistently prefer different candidates.
Reading as a layman, I felt as though Thomas was laying down yet more groundwork after having done so for years already – seemingly with a hidden tone of “I told you so” and “I’m getting too old for this” – all to be used in a later court decision.
In fact, that decision may be imminent in Louisiana v. Callais, wherein Thomas recently provided yet another searing dissent against even re-arguing the case.
His latest dissent ends with this boast and bet:
For over three decades, I have called for ‘a systematic reassessment of our interpretation of §2.’ … The Court’s decision in Milligan is the latest and most damaging ‘installment in the “disastrous misadventure” of this Court’s voting rights jurisprudence.’ … I am hopeful that this Court will soon realize that the conflict its §2 jurisprudence has sown with the Constitution is too severe to ignore. Because the Court declines to reach that conclusion today and instead inexplicably schedules these cases for reargument, I respectfully dissent.
Thomas definitely wants to put an end to racial gerrymandering, but will the rest of the Supreme Court let him?
Hopefully, the answer is “yes” – that gerrymandering will soon be deemed equally “cool” whether it benefits Republicans or Democrats, regardless of race.
Joey Clark is a native Alabamian and is currently the host of the radio program News and Views on News Talk 93.1 FM WACV out of Montgomery, AL, M-F 12 p.m. - 3 p.m. His column appears every Tuesday in 1819 News. To contact Joey for media or speaking appearances, as well as any feedback, please email [email protected]. Follow him on X @TheJoeyClark or watch the radio show livestream.
The views and opinions expressed here are those of the author and do not necessarily reflect the policy or position of 1819 News. To comment, please send an email with your name and contact information to [email protected].
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