John Roberts and Racial Gerrymandering

But Alabama has seven House seats, so one majority-black district comes out to 14%, while 26% of the state’s voting-age population is black. A federal court said in January that Alabama is required by the Voting Rights Act (VRA) to create a second majority-black district, which would be 29% representation. Is this the law, or is it another misguided effort in what Chief Justice

John Roberts

once called a “sordid business, this divvying us up by race”?

Section 2 of the VRA bans voting practices that aren’t “equally open” or that give racial minorities “less opportunity” to “elect representatives of their choice.” The High Court has blessed claims of vote dilution, with the operative precedent being Gingles (1986). It sets forth a multipart test: Is the minority group big and compact enough to be its own district? Is it politically cohesive? Is a VRA violation indicated by “the totality of the circumstances”?

On the other hand, Section 2 explicitly says it doesn’t create any sort of “right to have members of a protected class elected in numbers equal to their proportion in the population.” More recent Supreme Court rulings have said gerrymandering by race is “odious,” and so strict scrutiny applies if it’s a “predominant” factor for mapmakers. Scylla, meet Charybdis.

Alabama argues that its critics were able to draw alternatives maps with two majority-black districts “only by starting with a ‘nonnegotiable’ racial target and backfilling with other redistricting criteria after that target had been hit.” These plans split the Gulf Coast region to combine black voters across the state.

In February, when the Justices stayed the lower court’s decision, Chief Justice Roberts dissented, saying it looked like a faithful application of Gingles. But he advocated hearing the case, since “Gingles and its progeny have engendered considerable disagreement and uncertainty.”

One thread in the Chief’s VRA jurisprudence is that it isn’t 1965 anymore. South Carolina has a black GOP Senator. Georgia has a black Democratic Senator, whose Republican challenger is also black. Reps.

Steve Cohen

and

Rashida Tlaib

aren’t black but win majority-black seats. The reverse, black Democrats in majority-white seats, happens, too, such as in Georgia’s 6th. What distinguishes a district favoring black voters, who happen to be Democrats, from a district favoring Democrats, who happen to be black?

Further, how much are these dynamics perpetuated if courts read the VRA as mandating racial quotas, more or less? “Few devices could be better designed to exacerbate racial tensions than the consciously segregated districting system currently being constructed in the name of the Voting Rights Act,” Justice

Clarence Thomas

wrote in 1994. He predicted it would “deepen racial divisions by destroying any need for voters or candidates to build bridges between racial groups or to form voting coalitions.” How right he has been.

The left hopes to bully the Chief Justice into leaving Gingles alone. Here’s how the Atlantic recently characterized his vote not to stay the lower-court ruling: “To resurrect a pungent phrase, his colleagues out-segged him.” Imagine the warped mentality in which it’s possible in 2022 to get “out-segged” by Clarence Thomas.

The Democratic-media chorus is ready to shout that the Court’s ruling for Alabama in Merrill is the end of the VRA and democracy. It would in fact be a step away from the sordid business of proportional representation by race, which really is anti-democratic.