The Supreme Court is Wrong: Get Race Out of Redistricting


Last week, the Supreme Court, in the case of Alabama Black Caucus v. Alabama, overturned a redistricting plan for Alabama’s State Legislature, with the Court’s majority (the four liberals and Justice Kennedy) arguing that the new district lines didn’t do enough to preserve the influence of black voters. As I write in my new column for Defining Ideasit’s a mistake to accept the redistricting status quo in which the majority party (Republicans, in Alabama) constructs relatively safe districts for itself and then gives the minority party a handful of even safer seats as compensation. As I write:

In a sensible world, the best counter to these dangerous tendencies uses explicit formal requirements to remove this unpleasant form of tit-for-tat politics. Two constraints, taken together, could achieve this result in a relatively simple fashion. The first is to stick with a requirement of rough numerical equality across districts. The second is to require relatively compact districts, which look more like simple squares than some grotesque 28-sided monster that white citizens (outnumbered by 4 to 1) consciously created in Tuskegee, Alabama in 1957 to block the possibility that newly enfranchised black residents would soon take over local politics. Six years after Brown v. Board of Education, the Supreme Court in Gomillion v. Lightfoot struck down this ploy under the Fifteenth Amendment, which provides that the “right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.”

When it comes to black political participation, however, the real conflict is between African-American politicians and ordinary black voters:

In dealing with this issue…the Supreme Court seems to make some unexamined but highly dubious empirical assumptions that the means chosen will fit the ends in question. But the set of social considerations do not lend themselves to these easy calculations. The original goal of the 1965 [Voting Rights Act] was to increase black participation to the level of white participation. That end has already been achieved, at which point the influence of formerly disenfranchised voters is felt in every district in which they vote. Winning elective office is always an arduous task of stitching together complex coalitions, minority voters included, assuming that they vote as a bloc, which they need not do.

It is therefore fair to ask why, once the vote has increased, is it better socially for minority voters to be part of winning coalitions in multiple districts or to be the dominant players in a smaller number of districts? Owing to the immense variations in local politics, only the foolhardy would be confident which way the balance tilts. Ignoring race in redistricting does not strip minority voters of influence. But it does reduce the influence of the Alabama Black Caucus, whose number decreases if black voters are dispersed through multiple districts, leading to a deep conflict of interest between the Black Caucus and ordinary black citizens. The Black Caucus is composed exclusively of blacks elected to public office. A rule that refuses to make race-conscious classifications will surely thin its ranks, but may also increase the overall influence of black voters who are parceled out across multiple districts.

Our approach to voting rights remains mired in the 1960s, with precious few adjustments to reflect the tremendous progress that African-American voters have made in the past half-century. Only Justice Thomas, who wrote a powerful dissent in this case, seems to fully grasp the harm being done by the Court’s current approach.

This sorry episode once again validates a central theorem of constitutional law: once a legal system goes off the rails on its major premises, it cannot undo the institutional damage by fine-tuning the rest of the system.

Read the full piece at Defining Ideas and let me know what you think in the comments.

Published in Law
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  1. Ricochet Member

    Could this be a parallel to the post-segregation era forced busing? As I understand, the Court in Brown held that “separate but equal” schooling was unconstitutional, and required that schools be integrated. Then, when it was discovered that many schools were de facto segregated, rather than de jure, a number of lawsuits emerged protesting the forced busing to accommodate the Court’s ruling in Brown. This practice was allowed in a 9-0 decision in Swann v. Charlotte-Mecklenburg Board of Education but revised in Milliken v. Bradley. From what I’ve read, Milliken doesn’t fully refute Swann, but after being so far removed from the Jim Crow age it seems it basically does.

    I’m sure the issue of racial gerrymandering is almost devoid of such nuance. The thinking is that there is no distinction between de facto and de jure segregation. Add such a mess like redistricting into the mix and you’ve got a complicated problem.

    There was another case concerning the redrawing of congressional districts, in Arizona State Legislature v. Arizona Independent Redistricting Commission, which I think must favor the legislature (by “legislature” I mean the body that makes laws.) Seems like this might be the start of a big issue.

    • #1
  2. Douglas Inactive

    LOL @ the “Libertarian” Anthony Kennedy.

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