Race, Gerrymandering and the Constitution at the Supreme Court
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73 segmentsAmerica has abundant oil and natural gas, but energy security takes more than energy in the ground. It requires smart policies that ensure supply, modernize infrastructure, and strengthen energy supply chains. Learn more at energy security framework.org. Pay for by the American Petroleum Institute. From the opinion pages of the Wall Street Journal, this is Potomac Watch. The Supreme Court hears a case on racial gerrymandering and majority minority districts in Louisiana. What's at stake for the law in the Constitution? And are the analysts right about how a ruling in this case could change the balance of power in the House of Representatives? Welcome, I'm Kyle Peterson with the Wall Street Journal. We were joined today by my colleagues on the editorial page, columnists Alicia Finley, and Barton Swain. For years, state mapmakers have been caught between a rock and a hard place. What happened in Louisiana after the 2020 census is a good example. First, the state drew a house map that included one majority-minority district. It was sued. A judge ruled that it was required to have two majority-minority districts under the Voting Rights Act because black voters are about 30% of Louisiana's population. Then after it did that and drew a second such district, it was sued again by non-black voters, arguing that this racial mapmaking was a violation of the Constitution and the Equal Protection Clause. Let's start with a clip of Justice Brett Kavanaugh, tangling with one of the attorneys this morning in the oral argument on this case. This court's cases in a variety of contexts have said that race-based remedies are permissible. for a period of time, sometimes for a long period of time, decades, in some cases, but that they should not be indefinite and should have an endpoint. And what exactly do you think the endpoint should be or how would we know for the intentional use of race to create districts? Well, Brett Kavanaugh, you raised a very important distinction, and that's between remedies and the statute. So a race-based remedy can and should and usually does have a time limit and a durational limit. Section 2, court-ordered remedies have a time limit. And so that is something that is grounded in our case law. What is not grounded in case law is the idea that an entire statute should somehow dissolve simply because race may be an element of the remedy. And here from the other side of the Supreme Court's bench is Justice Sonia Sotomayor.
But race is always a part of these decisions. And my colleagues are trying to tease it out in this intellectual way that doesn't deal with the fact that race is used to help people. Legislators might try to keep an ethnic community in one district. They might consider it to get a sense of which district to join incumbent into. They might review it to predict what kind of issues a district voter might be particularly interested in. They might use it to inform partisan goals. We permit all of that. What you're saying to us, if you use it to remedy past lingering discrimination, intentional discrimination, then you can't use it. You can use it to help yourself achieve goals that reduce of particular groups electoral participation, but you can't use it to remedy that situation. That's what you want us to hold. Section 2 of the Voting Rights Act says it is a violation of the law if the political processes leading to the nomination or election in the state or political subdivision are not equally open to participation by all members of a class of citizens. On the other hand, Alicia, the Constitution, the 14th Amendment, demands equal protection of the laws. The 15th Amendment says that the right of citizens in the United States to vote shall not be denied or abridged by any state on account of race, color, or previous condition of servitude. So that is the tension that the are weighing, what's your read of the oral argument? So I don't actually think that there's an express tension here or conflict. And I think that the liberal press is trying to make it seem that way. But Section 2 on its face merely bars voting practices and procedures that discriminate based on race. It doesn't say anything about guaranteeing majority minority districts or redistricting in the redistricting process. It has been read by a lot of liberals groups who have an NAACP and others who have tried to. bring challenges based on a disparate impact theory and other contexts, for instance, voting ID laws and saying something if something disproportionately affects black voters, there's been a kind of back and forth in the courts and how with a standard for determining that, then it violates Section 2 ipso facto. The problem really is isn't with Section 2, it's with this 1986 Gingles precedent that read a lot into the law and it set forth a measure to determine vote dilution instead of trying to prove intentional discrimination that prove legislatures. We're trying to dilute the minority votes. And it essentially required legislatures to draw majority minority districts. And what majority minority districts are is when a minority makes up a majority in a district.
And so the Gingles decisions required these legislatures to draw majority minority districts when minority populations are, quote, large, compact, and politically cohesive. And when the vote majority votes, quote, sufficiently as a block. to defeat a minority's quote-unquote preferred candidate. Lower courts have really struggled to divine what exactly that means. So have legislatures. It's really unclear. They've come out on different sides of the case. And then there's the broader issue is that, as you point, they're in between a rock and a hard place. If they consider a race too much, courts have found that they violate equal protection because they're essentially discriminating based on race. But if they don't... consider race at all and they don't draw a majority minority district. They can be sued under Section 2 under this Gingles precedent. And how the courts have determined in Gingles, there has been a lot of dispute, even going back to the 2023 decision with Alabama, which I think is really important to note. In that case, Republicans in Alabama drew one majority minority district. It was sued under Section 2. Some liberal groups argued that this day should have to draw a second. In that case, it was a 5-4 decision with Brett Kavanaugh or the Chief Justice sided with the liberals based on the Gingles precedent. They basically held that. Well, it looks like you could draw another majority-minority districts that's compact and continuous and then meets traditional redistricting or math-making principles, and therefore you must. Now, the conservatives in that case said, no, we think you actually, one, we think you're misapplying gingles, and two, we think the real standard should be race neutrality, that you shouldn't have to improving Section 2 claims. In the map mapping or redistricting context, we should take a race neutral metric, as in the legislature should not be considering race at all. And that's where things kind of stand. Now, Brett Kavanaugh wrote an interesting concurrence in that decision, which he echoed again during the oral arguments today, and he echoed during the oral arguments when the Supreme Court initially took up this case in spring. In other contexts, the Supreme Court has always said that there should be some kind of time limit to the extent that race should be able to be considered to remedy past discrimination. You can... hear from the oral arguments that liberals don't really believe that, and neither do the liberal justices. But my overall take from this is that it's probably going to be a six-three decision. Barton, your latest column is under the headline, the Second John Roberts Court. The justices are wise to return political issues to voters and their representatives. And I wonder if this is another example of that. We had a case not too long ago where the justices took themselves and the lower courts out of partisan mapmaking, saying, essentially, we don't have any standards in the law to police, whether this map is too red or too blue, too Republican, too Democratic. And I wonder if there's a
similar sort of dynamic in this question about racial gerrymandering, because Alicia, I think does a good job of detailing some of the struggles. that lower courts have had in a similar kind of situation where the precedent that the Supreme Court has handed down says, for example, that you can require these minority, majority districts. If the minority group is cohesive enough, well, what counts as cohesive? And the difficulty is that it ends up shifting a lot of power over these kinds of maps from the political branches to judges and essentially the justices. Absolutely. I think that this would be a fine opportunity for the conservatives on the court to take themselves out of the whole business of refereeing gerrymanders and drawing district lines, not just the Supreme Court, but courts in general. I would urge any listeners willing to lose an hour of their lives to go and listen to the oral arguments in this case, the one back in March, I think it was, and today's. It's one of the most abstruse discussions you'll ever hear in a courtroom. A normal person visiting the court today would probably have no idea what anybody was talking about. Guess that's why we should be glad that we have brilliant people like Alicia to explain it all to us. The opacity has two reasons, I think. The first is that it's disingenuous on both sides of the question, right? Everybody knows gerrymandering over race is about politics and not race. Democrats don't care if this or that district is represented by a black person or a white person or an Asian person. They care if it's represented by a Democrat. And race is really a means to that end, and it always has been. Republicans, meanwhile, have to abide by these contradictory court decisions that Alicia was describing. as best they can. So all the talk is always about something else other than what the actual discussion seems to be. The other reason for the opacity, I think, and the confusion is that the courts aren't equipped to do any of this. Courts don't know how to draw fair district lines that make sense. And the concepts and rules and tests that they come up with over time to try to make line drawing fair or whatever it is have... only made the situation worse. I think most of the court's conservative justices understand that from what I can tell and want to get the courts out of the whole business and let the political sphere argue it out. And just one other thing, I would say gerrymandering could be a legitimate political issue, but it's generally not one for this reason. When someone thinks district lines are unfair,
or, you know, they look like have crazy shapes for unfair political reasons. The first place they go to is the courts. And I hope the Supreme Court is able to finally say, you know what? If you have a problem with the way the lines are drawn, take it to the public. Run a public campaign about how the other party is up to no good drawing opponents out of office. Do it all in public. Enough of these cases with their contradictory legal demands and their undefinable terms. Weirdly, I think we're starting to get a little of that out of this Texas mid-decade case in which gerrymandering for once is becoming a public issue. So let's have more of that. Hang tight. We'll be right back in a moment. America has abundant oil and natural gas, but energy security takes more than energy in the ground. It requires smart policies that ensure supply, modernize infrastructure, and strengthen energy supply chains. Learn more at energy security framework.org. Pay for by the American Petroleum Institute. This podcast is brought to you by ReliQuest. Cybercriminals are constantly attacking. They want your data. They want your identity. They want your innovation. RelyA-Quest fortifies your business with agentic defense, AI that detects, contains, and eliminate cyber threats in minutes. It helps your security team move faster at the work that matters most to protect the business now and delivers insights to help them predict what's next. R-A-A-A-Gentic Defense for the Enterprise. Learn more at Reli-E-Quest.com. That's R-E-L-I-A-Q-U-E-S-T.com. Welcome back.
Alicia, what do you make of the political potential effects of a ruling here if the Supreme Court does, as Barton suggests, says that requiring these kinds of minority, majority districts is unconstitutional? The numbers that I've seen vary that maybe Republicans in some of these states could pick up an extra district or two, depending on how tightly they decide to redistrict and gerrymander those states. I've seen estimates up to maybe 12 seats that could potentially. be in play. But Alicia, of course, there's always a risk if you gerrymander and spread your own margins too thin. So, I mean, similar to the arguments we've had about political gerrymandering, the more that a party in power in a given state decides to spread its own voters around to pick up an extra seat or two, the more that it is potentially putting itself at risk of a wave election and a wipeout a couple years down the road. Well, I think that's exactly right. And I think that's why in some many states, the majority minority districts suit both parties very well. In context, Democrats don't like it because they think it does minimize the amount of seats that would go to Democrats. Now... How many could Republicans pick up? Barton's right. These are usually Democratic seats. They're proxies. They use them as race as proxies for partisanship. And that's why it's presumed that Republicans would gain if some of these districts were challenged. I think that's what would have to happen. I don't think. I mean, maybe you could have more mid-decade redistrictings like we saw in Texas. or in California and some other states in which they just decide, legislatures decide to use a Supreme Court ruling as an excuse to redistrict and eliminate these districts. Majority minority districts and claim that they were actually initially drawn on racial grounds or racial basis. But how many they could pick up, I'm a little skeptical that they're going to pick up as many as Democrats or liberals claiming. I think they're portraying that or using this to try to scare the Supreme Court and saying it's going to shift the political ballots and it's unfair and all. that I think right now broader issues than minorities are often concentrated in urban areas of the country and this makes it actually easier to maybe pack them in but I think those boundaries would naturally be the same so I'm not sure that there's going to be a huge appetite for changing some of these districts because I think again it's in many cases does suit Republicans I think they were trying to get another Republican district in places like Louisiana, I don't think you're going to be able to draw a completely Republican map there any more than you could in Alabama. I think that maybe they'd be able to pick up one in Alabama by going back to what the original map was before you had courts intervene, tried to demand another. Now going forward in the 2030 redistricting cycle, who knows, I think the biggest upshot of the Supreme Court case is you're just going to get less challenges in the courts in the area. at least in the federal courts. You may start to see more partisan redistricting challenges in state courts. We've been seeing North Carolina, Wisconsin, Pennsylvania, and more money going into these state Supreme Court races in the hopes that they could get ruling there that decrees that their maps violate constitutional protections or prohibitions against.
partisan gerrymanders. But I think that the Supreme Court would be very happy to finally get out of this political thicket generally. Let me just add that, you know, I know a lot of people in South Carolina politics. I've made some calls today about this. And there's absolutely no way that Republicans would draw Jim Clyburn out of his seat because the sort of political and cultural national blowback would be so bad that they're not touching that. And that's sort of... how it should be. It should be a question of politics, not a question of legality. Barton, do you think also that it is too much to hope that if this kind of racially conscious mapmaking ends, that it could contribute? to a racial depolarization of politics, because one of the criticisms of this approach to drawing House districts is if you create a black district and some white districts and maybe a Hispanic district or an Asian district, then you are setting up the political system to be an argument where a candidate of one race is going into a district where the majority is that race and appealing to them on those terms. And if you end up with more racially mixed districts, I mean, they may have a partisan tilt one way or the other. But if, you know, 40% of that district is black or Hispanic, that's not a majority minority district, but it would be pretty hard to, you know, compete in that district without getting any of that vote share. I think one of the few positive trends in our politics lately is that racial identity. has taken on less predictive value in terms of voting patterns. And as that happens, racial gerrymandering, one hopes, will become less of an issue because, as I mentioned, it's all about politics anyway, not about race. And yes, to the extent that we are able to get away from race-based line drawing, we're able to get away from racialized politics. Healthy development, in my view. One of the things that Samuel Alito... pointed to in the oral arguments back in March, I think, is that one of the squiggly districts in Louisiana that they were arguing about that stretched halfway across the state and sort of scooped up black voters along the way. That was the point of it. It included rural voters, suburban voters, and some urban voters. Now, it's easy to think that many of the voters in that district, that strange-looking district, had major political differences with each other that had nothing to do with race. If we've learned anything from the last decade, it's that voters' interests are falling along geographical lines more and racial lines less. So again, there's no principle any judge can come up with to ensure districts are drawn in some ideal racial way. So let politicians figure it out. and have it all done in public. And I think it's not going to make our politics sort of, we'll still argue about race, but this will be one less factor in that argument if courts have less to do with it. Hang tight. We'll be right back after one more break.
America has abundant oil and natural gas, but energy security takes more than energy in the ground. It requires smart policies that ensure supply, modernize infrastructure, and strengthen energy supply chains. Learn more at energy security framework.org. Pay for by the American Petroleum Institute. Don't forget, you can reach the latest episode of Potomac Watch anytime. Just ask your smart speaker, play the opinion Potomac Watch podcast. From the opinion pages of the Wall Street Journal, this is Potomac Watch. Welcome back. On the point about this being the trend already, here's a report from Axios of the last Congress in 2023. It says of the 60 black lawmakers elected to Congress this year. 30 now represent states or districts with a plurality of white voters, according to an axiose analysis. And some prominent names, Alicia, I mean, Tim Scott, Senator of South Carolina from the Republican Party, Raphael Warnock, Senator from Georgia in the Democratic Party. And so I think that's part of the argument. It's not as if, you know, Democrats, Republicans, candidates of color can't win white districts, and vice versa. It does seem, though, that there's more gerrymandering, more redistricting. here to come. Democrats are now looking at doing Illinois in response to Texas. Republicans are potentially talking about Kansas. And notably, President Obama is now jumping into the argument over Prop 50 to approve the Gavin Newsom gerrymander of California. Listen to this. California, the whole nation is counting on you. Democracy is on ballot November 4th. Republicans want to steal enough seats in Congress to rig the next election and wield unchecked power for two more years. With Prop 50, you can stop Republicans in their tracks. Prop 50 puts our elections back on a level playing field, preserves independent redistricting over the long term, and lets the people decide. Alicia, how do you think that debate is shaping up? Is Gavin Newsom going to win that fight? Right now, I think the polls on the Prop 50, and that's the new maps that would strip power from the State Redistricting Commission. and give it back and approve new maps that were drawn by the legislature expressly gerrymandered that would basically give Democrats more than 90% of the state seats. Now, they're already very gerrymandered under this redistricting commission's maps. More so than by many metrics, the new Texas map is if you were to compare metrics like the quote efficiency gap or the difference between Donald Trump's vote. share in that of the number of seats that Republicans hold in the state. What Democrats are now doing is just an extreme gerrymander, and they're kind of using this excuse of the Texas gerrymander now.
didn't support, you know, what Texas did. But I think ultimately what's going on here is Gavin Newsom's trying to elevate himself on the national stage by doing this. And now you're hearing, as you point out, that maybe Illinois J.B. Pritzker will follow and they'll redraw the Illinois map, which again would be very difficult to do to get any more Democratic votes because it's so extremely gerrymandered already. And now you have Obama weighing in, you know, his attorney, former attorney general. Eric Holder was really the king of partisan gerrymanders. And when I say that, he went around and tried to sue all these states, tried to force them to redraw the maps. And that's including, by the way, on the Section 2, using that as kind of a cudgel to try to get maps drawn that benefit Democrats. So there's really a lot of double speak. They're claiming that this is a matter of fairness. But, you know, the cynicism is on both sides. And as for the Prop 50, going back to that, I think it's a close call right now. how It's leading in the polls just by a bit, but it's going to depend on what the turnout is. And most people that haven't even heard about this aren't really paying attention. This isn't off your election. And when you have off of your elections, actually the conservative turnout in California is relatively higher than it is, you know, in general election, like a presidential election or even in a midterm. And so I think that's the other point of what Obama is doing. He's trying to galvanize. Democrats by trying to galvanize Democrats to vote for this and to turn out by saying that this is about preventing overreach by a Republican Congress and Donald Trump that has no check and try to raise the stakes. The other thing that makes me skeptical of some of these predictions that one party is rigging the maps and locking the other party out of power is the candidates shift, the issues shift, the voters sometimes shift, which makes it hard to predict how this is all going to play out from year to year. And Barton, the other thing that Democrats could do if they're worried about winning the House back is they could moderate a little bit. I mean, I saw one mainstream news suggestion that the Supreme Court case could sound the death now for Democratic hopes of regaining the House was the phrase that was used there. And they could respond to that. I mean, we have two parties. It's always a push and pull, a tug between the two parties. But it's easy to forget how much of the Republican success in recent years is related, I think, in some part, to Trump moderating on some issues. In 2024, there was a push by some conservatives for a national right-to-life abortion ban. There were arguments about 15 weeks versus 12 weeks, and President Trump said, no, we're going to leave it up to the states, even going back to 2016, saying, I'm not going to touch any of these entitlement programs, Social Security, Medicare. I mean, I dissent from that. We're in a situation where within a decade or so, Social Security is staring down a 20% automatic benefit cut. I don't think there's anything particularly moderate about shutting your eyes to that and just continuing.
on the path ahead. But in the way that these things get coded in the political spectrum, that is kind of a moderate move by President Trump agreeing with Democrats that we are not going to raise the retirement age. And so there has been some moves like that by Republicans in recent years that has contributed to their success. And if Democrats want to win back some of these new districts, these rural districts, districts that are evenly split partisan or R plus one, R plus two, Barton, it's not like there is no way they can do that. We'll give you the last word. Yeah, I often think that in these kinds of matters, Democrats would benefit themselves enormously by simply honing their pitch to the middle of the country. They do much more good for themselves by doing that than by coming up with these procedural ways of gaining political advantage. I would put racial gerrymandering very much in that category. And the same category, I would put, like, court packing, creating new states, getting rid of the electoral college. Like, for one thing, you're not going to do any of those things in the end. And for another, it's distracting you from making your message sound like a sane party. Like, why come up with all these legally cockamamie ways of getting advantage when you could just refashion your message? I mean, Republicans can learn that lesson too instead of... redrawing lines in the middle of a decade, as they're doing in Texas and maybe elsewhere, you know, why not, as you say, moderate. This is supposed to be about politics and not sort of behind the scenes maneuvering, right? So, yes, I agree. Thank you, Barton and Alicia. Thank you all for listening. You can email us at PW Podcast at WSJ.com. If you like the show, please hit that subscribe button. And we'll be back tomorrow with another edition of Potomac Watch. America has abundant oil and natural gas, but energy security takes more than energy in the ground. It requires smart policies that ensure supply, modernize infrastructure, and strengthen energy supply chains. Learn more at energy security framework.org. Pay for by the American Petroleum Institute.