¶ The History and Mechanics of Gerrymandering
It is Tuesday, June ninth at two forty two PM as we're recording this. What are we gonna talk about today?
Well, Roman, so what does the term gerrymander mean to you?
Well, as I understand it, it means like drawing a ridiculously shaped district in order to advantage your own political party.
I think that's right. So if you see a district that actually doesn't look like anything that you would find in nature or in political nature. That is, it's not a square, it's not a rectangle. Yeah. It might have very strange, contorted shapes in it. It's probably been gerrymandered. And so you're right, gerrymandering refers to the creation of a voting district that is deliberately drawn to advantage a particular political party.
And the name goes back to eighteen twelve when the Massachusetts governor Elbridge Jerry decided to approve congressional districts that were drawn to help his party, the Democrat-Republicans. And one of the newspapers at the time, the Boston Gazette, published a cartoon of one of these strangely drawn districts.
likening it to a dragon, which was a salamander, and deemed it the now famous term gerrymander, after Elbridge Jerry. And ever since lawmakers have tried to draw congressional districts for political purposes. Gerrymandering is a common part of today's electoral politics. But today the situation with gerrymandering is a mess and arguably a hyperpartisan, undemocratic mess because of recent Supreme Court decisions.
But understanding this mess, which is itself a complicated story, requires untangling several constitutional threads, and those involve redistricting. Political questions, the Voting Rights Act, and six members of the Supreme Court who are acting in increasingly polarized and partisan ways. You ready?
I am ready. Let's do it.
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This is what Trump can teach us about con law, an ongoing series of indeterminate length and sporadic release where we look at cracking, packing, and the gutting of the Voting Rights Act and use them to examine our constitution like we never have before. Our music Is from Doom Tree Records. Our professor and neighbor is Elizabeth Joe, and I'm your fellow student and host, Roman Mars.
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So why don't we start out with congressional redistricting, some of the basics. Okay. So Article 1, Section 2 of the Constitution plus the 14th Amendment means that we count the national population every ten years. That's the census. Yep. And we do this in order to distribute house seats across states.
Every state has to have at least one House member per the Constitution. But how many House members a state has beyond that minimum is based on population gains or losses that we discover from the census. So the census is a very important tool of political power distribution in the House. And it's a fixed number. You know the number.
Yeah.
Ever since Congress passed the Permanent Apportionment Act of 1929. So one state's gain is always another state's loss. And what that has traditionally meant is that after each census, states use this as an opportunity to redistrict, meaning redraw their congressional district maps within their state.
And the Supreme Court has interpreted the constitution to require that congressional districts within a state have an approximately equal number of persons, but otherwise the states have kind of a lot of freedom to redraw their districts. Now, the Constitution also gives Congress the authority to regulate congressional elections. This is also known as the Elections Clause. Roman, could you read it for us?
Sure. The times, places, and manner of holding elections for senators and representatives shall be prescribed in each state by the legislature thereof. But the Congress may at any time by law make or alter such regulations, except as to the places of choosing senators, and and here choosing is charmingly spelled C H U S I N G.
Yeah. Now, this elections clause refers to Congress's ability to regulate the time, places, and manner for congressional elections, just like it says, but it's not just literally that. Congress also has the power to regulate all aspects of congressional voting, like voter registration, voter protection, vote counting, and even protecting against voter fraud, and of course redistricting. Now, Congress has in the past relied on the Elections Clause to pass redistricting standards.
Now the last major statute was the nineteen twenty-nine permanent apportionment act. That's the same act which sets the number of house seats at four hundred and thirty-five and hasn't changed since. So actually today most redistricting is done by state legislatures. And the remainder of what's legal and isn't legal in terms of congressional redistricting is dictated by a set of judicial decisions.
Some federal statutes, constitutional principles, and state laws. It's pretty complicated. So today I thought we'd just mostly focus on what federal law and the constitution says. Great.
So how does gerrymandering become an issue here in terms of redistricting?
Well, in theory, the goal of redistricting is kind of benign, right? The idea is you have a new set of populations. They've moved from one state to another, and even within a state. So you want to make sure that within your state, each district represents a a fair portion of the voters. So that's the theory. But since most redistricting is done by state legislatures, the party controlling the state legislature has every incentive to keep itself in power and of course keep the other party out.
So that means drawing congressional district maps so that they advantage one political party over another, even if the districts end up looking very strange, like salamanders. So lawmakers might gerrymander districts in ways that are called cracking and packing.
This is... So I I know a little bit about this, but tell me more about cracking and packing.
Okay, so packing happens when voters with similar characteristics are concentrated into as few geographic districts as possible. So the idea would be you have a group of people who are Democrats or Republicans or black voters or Hispanic voters. And if you pack more than 51% of these voters into a district, then the packing essentially creates some wasted votes when you have a winner-take-all house election, because you don't need all those extra voters.
Yeah, you just need fifty-one percent. That's what you're interested in having your party control fifty-one percent, but any percentage over that uh is wasted.
In a way. Yeah, but it's actually pretty advantageous if you don't care about those voters. And so cracking is the opposite. You take the same like-minded groups of voters and distribute them across so many congressional districts that there's no chance that they can vote for the person that they want to have represent them in the House. Because of the cracking, they're unable to have the voting power they need to actually go ahead and vote someone into the House.
¶ Partisan Gerrymandering: Political Questions
Is cracking and packing legal?
Well that is a big question and it depends. So first it depends on what kind of gerrymandering you're talking about. So for our purposes, there are two important kinds of gerrymandering to distinguish. we can call one partisan gerrymandering and the other one racial gerrymandering. So partisan gerrymandering happens because lawmakers want to draw a congressional district map in a way that favors one political party over another.
So one way to think about whether that's legal is whether you can bring a lawsuit because you're claiming, hey, partisan gerrymandering is illegal or in fact unconstitutional. Now, in 2019, in a case called Rucho versus Common Caes, voters in North Carolina and Maryland challenged their state's redistricting map.
Now, they claim that the new maps were unconstitutional partisan gerrymanders, which violated their rights under the first and fourteenth amendments. But in Rucho, the Supreme Court, in an opinion written by Chief Justice Roberts, responded by saying, well, they couldn't really help the plaintiffs at all because their lawsuit raised the political question doctrine.
Okay, so what is the political question doctrine?
Well you can't find it in the constitution. That's right. The political question doctrine is one of several rules the Supreme Court has interpreted out of the Constitution's requirement that the federal courts can hear only cases and controversies. So, you know, y we've heard of a lot of high profile Supreme Court cases in the past couple of years where the plaintiffs either have or don't have what's called standing or legal injury, right? So you know that term.
Well, the political question doctrine is similar because it's about the kinds of cases the Supreme Court says that it and other federal courts either can or cannot hear because the Constitution doesn't permit it. Now, the unfortunate thing about the name is that it's pretty misleading. The political question doctrine doesn't mean that a court can't hear politically controversial issues. That's not what it means at all.
Um instead the political question doctrine means that there are some types of cases that the court says, you know, it's better if the political branches, like Congress deal with this issue rather than the courts. It's just too hard of an issue for the courts to manage in any way. And so in the 2019 case, the Supreme Court decided that claims about partisan gerrymandering were what we call non-justiciable, can't be judged, political questions.
In other words, if your legal claim is that, hey, the lawmakers in my state are redistricting to favor one political party over another, that's just not the kind of claim a court can hear. Case dismissed. So that's one constitutional thread for gerrymandering. Lawsuits over partisan gerrymandering don't go anywhere.
So it f it d de facto makes them legal because the Supreme Court says it isn't even like legal to consider it or it isn't law to consider.
Yeah, we can't even hear it at all. That's right. And there's actually something even more interesting because in Rucho, the court says, look, we can't hear this case. But we're not approving of partisan gerrymandering. In other words, you know, they they say, look, it maybe people aren't happy with this, but that's
That's not a good reason for us to hear it, but they're also not really condoning partisan gerrymandering either. They're like, Well, you know, we don't love it, but we can't hear this guy.
I mean like if you're I mean I don't know. But but I mean I guess but it but but but it sounds to me like a a generous interpretation of this is that this is a political problem with a political solution. If you don't like it, then vote the people who did this out of office. Exactly.
That is the message.
So now we've done partisan gerrymandering. What is racial gerrymandering?
¶ The Voting Rights Act and Its Erosion
Okay, so let's take a very quick look at history. So the Reconstruction Amendments, the Thirteenth, Fourteenth, and Fifteenth Amendments are passed after the Civil War. And they abolish slavery, guarantee equal protection and due process of a law, and the right to vote. But after Reconstruction, the Southern states passed all kinds of laws to restrict or burden the rights of black voters and basically to impose racial segregation. That was the Jim Crow South.
Now, the right to vote that was guaranteed in the 15th Amendment becomes in reality a long struggle to actually gain the real right to vote.
Mm-hmm.
Now one of the big turning points of the civil rights movement in the twentieth century was the brutal police attack on March seventh, nineteen sixty-five. on hundreds of nonviolent protesters marching for the right to vote. So I think lots of people remember or have seen pictures of John Lewis being beaten on the Edmund Pettus Bridge outside of Selma. So that's a pivotal, iconic moment.
So the violence there and the public attention to that violence added even more pressure to Congress as they considered what would be the Voting Rights Act, which had been introduced the very same month. So the Voting Rights Act was signed into law by President Johnson on August 6th, 1965, that same year. It is the primary federal law meant to enforce the 15th Amendment, which bans the denial of voting rights based on race.
color or previous condition of servitude. And you can see that, you know, just by thinking about where this comes from and what it's meant to do, the entire objective of the Voting Rights Act is to ensure that racial minorities can exercise the right to vote. So the Voting Rights Act is widely considered one of the great landmarks of federal civil rights legislation, along with the Civil Rights Act of nineteen sixty-four, which prohibited racial discrimination in public accommodations.
And it was pretty successful. The first two black Southerners to win house seats after the Voting Rights Act was passed won their districts after they were redrawn to follow the law. And they happened to be the first black Southerners to have been elected to the House since the 1880s. So you look at this and the Voting Rights Act absolutely made a difference to non-white representation in the House.
So how does the Voting Rights Act actually work?
Okay. Well, once upon a time, there were two important sections of the Voting Rights Act that protected voting rights for black voters. Now the Voting Rights Act Actually protects the rights of racial and language minorities, but to keep things simple, I'm simply gonna refer to the voting rights of black Americans. Okay. So sections four and five of the Voting Rights Act work together to establish what are called pre-clearance requirements for certain states. Now, when the act was first passed,
It made it mandatory for states with a history of racial discrimination. And these were Alabama, Georgia, Louisiana, Mississippi, South Carolina, Virginia, and North Carolina, to receive approval or pre-clearance. Before they were allowed to change their voting rules. That included redrawing new congressional district maps. And later amendments to the act extended that.
pre-clearance requirement, in other words, getting pre approval to additional states like Arizona and Texas. But in two thousand and thirteen, the Supreme Court effectively put an end to section four. in a case called Shelby County versus Holder. And they did that by invalidating the formula used to determine which areas should be required to get pre-approval or pre-clearance to make sure that the voting rules in those states were not racially discriminatory.
So why did the court decide that?
Well, as a matter of legal doctrine, the majority in Shelby County said Section four violated a principle of equal sovereignty among the states, given what it called current conditions. And what were those current conditions? Chief Justice Roberts put it this way. Our country has changed. While any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy
That problem speaks to current conditions. So, a short way of understanding this is like, uh, we're kind of over it. What racial discrimination? Yeah.
Yeah. They used to be racist, they're not so racist anymore. Yeah.
Nah, it's not there's not too much racism. That was the answer. Got it. The result of Shelby County guts a central part of the Voting Rights Act. Shelby County was a five-four decision. It's a major shakeup of what we think about when we think about the Voting Rights Act. And you don't really have preclearance anymore because again, this the formula that is supposed to be used, the court says you can't use it anymore.
But it's not remotely unanimous. It's 5'4. The four dissenters include Justices Kagan and Sotomayor, who are still on the court. Justice Breyer, who retired, and Justice Ginsburg, who died in 2020. Justice Katanji Brown Jackson replaced Justice Breyer. The Conservatives would lose Justice Kennedy, who retired, and Justice Scalia, who died in 2016.
But then of course President Trump added three more, Justices, Gorsuch, Kavanaugh, and Barrett. And so that's been the enduring six-three divide that we have seen all these years.
Mm-hmm. The keyword here is indured.
In court. That's right. And after Shelby County states that had previously been covered by these pre-clearance requirements immediately passed restricting voting laws. Because they don't really have to wait at all.
Yeah. Yeah. Yeah. This is the famous descent where Ruth Bader Ginsburg said, This is like throwing away your umbrella because you're not getting wet during the rain, sort of thing.
Exactly. Like how can it be that the one thing that's This kind of oppressive voter uh suppression from happening or being worse. Why have we decided that that's not needed anymore?
Yeah.
¶ Section 2 Overturned by Louisiana v. Calais
And then there's section two of the Voting Rights Act. That was not touched by Shelby County. Now, section two bans states from using what the law calls any standard practice or procedure. to deny voting rights based on racial discrimination. The states are not supposed to engage in what we'd call vote dilution. So section two has been primarily used to challenge the redistricting maps that we've been talking about. The claim here is when a state is involved in racial gerrymandering.
They are redrawing a congressional district to dilute the voting power of black voters.
Yeah.
That's right. Cracking or packing. Remember splitting up geographic areas or cramming similarly grouped voters into as few districts as possible. So both kinds of actions dilute voting strength. And if it targeted black voters, then that would seem to be a valid Section Two challenge.
So what would happen if these section two lawsuits were successful?
Okay, so there's a couple of things to keep in mind. How Section 2 lawsuits were supposed to succeed, and what courts did when challengers won their cases. Now, in 1982, Congress amended the Voting Rights Act. so that the states could not put voting rules into place that result in interfering with the right to vote on the basis of race. I've paused on that word because that's really important.
when the voting rules of a state result in what look like racially discriminatory effects. Now, why did Congress do this in nineteen eighty two? Because the Supreme Court had decided a voting rights act case. that interpreted the Voting Rights Act to ban only intentional discrimination. So those are two very different standards. You can sort of see which would be easier for a challenger to prove.
Yeah, yeah, yeah. It's much easier to prove. I mean, like you can't prove intent and then you can wait for the results, which after that, you know, the horse is out of the barn, kind of right.
Yeah. I mean it's very very uncommon for a state to say, Oh, we are intending to engage in racial discrimination. Here's the smoking gun. Yeah, it's much easier to prove results. Yeah. So as a result of those amendments to the Voting Rights Act, which I should mention here is was a bipartisan effort signed by President Reagan. States are not supposed to do things like draw districts that result in making it harder for black voters to exercise their rights, or as the act puts it.
if they have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. So there are Supreme Court cases that make this analysis much more complicated, but the main thing to keep in mind is that Congress did not want it to be so hard for challengers to win a section two claim in a redistricting case that they just couldn't prove intent.
That's why we have this results-based language. If the state drew a new map that resulted in less chances for black voters to have a meaningful vote in their state, then that might qualify as a Section 2 violation under the Voting Rights Act.
Okay.
Okay. So that's a big part of it. Now that now let's turn to what's called like the legal remedy. Let's say you're a challenger, you bring a section two case. Uh and in the old days, what happens if a court determines that, yes, the state has violated Section Two of the Voting Rights Act? Okay. Well, a court could actually demand that the state come up with a different map that would be fairer to black voters. So that their voting power is not diluted. Right.
So if you look at these cases, these decisions, you know, you can pull up one of these uh section two cases and they have little maps in the decision, you know, competing maps with different color coded districts. So that's pretty neat. But that's exactly what courts were doing. Wow.
Now, that was the way Section Two of the Voting Rights Act was supposed to work until this year. And that's because of the Supreme Court's decision in Louisiana versus Calais. And Calais broke what was left of the Voting Rights Act.
So how did it do that?
So let's go back to the basics. After a census, the states have an opportunity to redraw their maps, right?
That's right.
And we I'd imagine that every state does, right? Yeah. Right. Because you want to. You know your population changes. Sure. You know, you're s yeah, I mean that's part of the normal political process that mod modern politics is
That is how it is supposed to be working.
Yeah. Right. Now after the twenty twenty census, Louisiana redrew its six congressional districts. so that it would have one majority black district and five majority white ones. Now it's worth noting that a third of the state's population is black. So a group of black voters sued about the new map, alleging that this represented a legal racial vote dilution under section two of the Voting Rights Act.
Now, after a federal trial court said the plaintiffs were likely to win, the state redrew its map in 2024 to create a second majority black district. Okay. But then a different group of white plaintiffs. filed a lawsuit and said that this new map was itself unlawful. because it was an unlawful racial gerrymander, precisely because the state was using race to redraw a map. Okay. So they're claiming that the second black majority district not only wasn't required by the Voting Rights Act.
But it was itself a violation of their rights, the white plaintiff's rights, under the Fourteenth Amendment. So the logic, the crazy logic of the white plaintiffs here is that the state by trying to comply with the Voting Rights Act, was simultaneously violating the rights of the white plaintiffs by relying on race. to create a second black majority district in the state.
Got it.
Okay. So the Supreme Court combined both of these lawsuits and on April twenty ninth decided Louisiana versus Calais. So legally speaking, there's a lot to unpack here. The Supreme Court had to decide against the backdrop of the several complicated voting rights act decisions. And these include things like how to figure out the appropriate baseline for measuring vote dilution, things of that nature. But there's just one big and easy thing to understand from the Calais decision.
To succeed from now on on a section two claim, you need to show that the state intended to redistrict because of racial discrimination. It's the opposite of what happened in nineteen eighty two.
Yeah. Oh my goodness. Okay.
So as a result, that second majority black district that the Federal District Court had ordered Louisiana to create in order to comply with the Voting Rights Act was itself unlawful. The state can't use race to redraw a district, said the court, because this also was a kind of racial discrimination against white voters.
The only circumstances in which the state can override this ban is when the challengers to a map say that the state initially intentionally drew a district to discriminate against black voters. which, as we've already discussed, is very, very hard to do. It's hard to find that kind of evidence.
So given that decision, what is the redistricting challenge look like now?
It's really hard, if not impossible. So the kind of racial gerrymandering we've historically associated with suppression of voting rights and the dilution of black voting power has become nearly impossible. There's little chance that you're ever going to find the kind of evidence that you need. And what do you think lawmakers are always going to say?
Yeah, we didn't intend to.
Nintendo is our intention, right?
In this process, did the court overrule the Voting Rights Act?
No, interestingly, it feels like it did, but it's saying that it did not. Justice Salito, who wrote the opinion, said specifically, we are not overruling the Voting Rights Act. But now that section two claims are virtually impossible and we know from Shelby County that section four claims are also impossible, the effect of the Collet decision is to gut the Voting Rights Act. It seems formally alive, but sort of functionally dead.
¶ Alabama's Gerrymandering Battles Unfold
So th this just happened this year. So what have been the effects of the Louisiana decision so far?
Well, the general message seems to be a green light to gerrymander in ways that suspiciously look like what had been illegal racial vote dilution. We've already seen announcements in states like Mississippi and Tennessee. that the lawmakers want to draw new maps. And a good example of this just happened in Alabama, which was twice told that it was acting illegally until the Calais decision, when the very same behavior
that it had been told was illegal was suddenly legal. Yeah. And Alabama eventually ended up going to the Supreme Court three times. So let's talk about this crazy journey that they took.
Yeah, okay.
So in 2021, Alabama drew a new redistricting map after the 2020 census. That map had only one majority black district, but about 27% of the state's population is black. So that map was challenged in court as a violation of section two under the Voting Rights Act. And the federal district court agreed. It found that the state's new map diluted the voting power of black voters. And the district court told Alabama, go ahead and draw a new map.
Now Alabama said, but we can't make a new map in time before our twenty twenty-two primary election. And so the Supreme Court allowed Alabama to use their map as a temporary measure. So if you're listening to this carefully, that's right. The voters voted with a unlawful map. That's trip one. Okay.
Eighteen months later, the Supreme Court considered the case fully and formally, and they decided well actually the Federal District Court was right. Alabama's new map was a violation of section two under the Voting Rights Act. Draw a new map. Okay. Uh Alabama did not do that. They did not comply. They did draw a new map, but they drew another map without complying with the Voting Rights Act. They did not put in a second black majority district. So the plaintiffs went back to court.
The district court said, fine, we will draw the map since Alabama won't do it. We'll draw a new map for 2024. And that new map sent two black representatives to the House. So Alabama went back to court again. And in the meantime, the Supreme Court decided the Calais case about Louisiana's map. And in May of this year, the Supreme Court vacated the district court's order in Alabama to use the twenty twenty four map. That's trip two. I know it's confusing, but'cause it is confusing. Okay.
So Alabama said, Great, we'll use the twenty twenty three map, the one that the district court already said was illegal for twenty twenty six. Yeah. Well, here's the thing. There was a May nineteenth primary, a week away from the decision. So if you were a voter in four districts whose maps had just been changed because of the Supreme Court, you voted, but your vote actually did not count.
The governor said, okay, let's have a special election for those four districts. The challengers went back to court. You can't do that either. And this time the district court gets really mad. This is after the Calais decision and says, look, Alabama is in fact intentionally this time discriminating on the basis of race.
The court decided not only that was this a violation of the Voting Rights Act, it also violates the Fourteenth Amendment's Equal Protection Clause. Again, this is a decision after the Collet case. So Alabama takes trip three to the Supreme Court, and on June second, just a couple of weeks ago. The Supreme Court decided in an unsigned four-page opinion that, yes, Alabama's map, the bad 2023 one, not the better 2024 one, was fine for the state to use.
That case called Allen versus Milligan was like Collet, a six three decision. So
¶ Purcell Principle and Partisan Redistricting
Why did the court reach this decision?
Well, it's you can't really call it a finely reasoned decision. Uh this was on the court's so-called emergency or shadow docket. So it's actually just four pages long. But what the Supreme Court seems to be saying in the Alabama decision is that When legislatures redraw their maps, from now on, courts should assume that the state is acting in good faith, meaning you should presume they're not discriminating on the basis of race.
And that's true as long as the state can give some non race based reason for drawing its map. And they did it, I assume, for partisan reasons, says the court. That just happens to coincide with race. But it gets even worse because the Supreme Court has developed what's called the Purcell principle.
I am not, so please tell me. The new thing I would be disgusted with.
Okay. So the name comes from a Supreme Court case from two thousand and six called Purcell versus Gonzalez. And in that case, the Supreme Court put a pause on a lower courts block of a voter ID law in Arizona. That was just two weeks before a midterm.
Okay. Got it. Got it. Yeah.
And the reason why the lower court wasn't allowed to stop this law? Here's what the Supreme Court said in two thousand and six. Court orders affecting decisions can themselves result in voter confusion and consequent incentive to remain away from the polls. As an election draws closer, that risk will increase. So the Persilla principle basically means courts shouldn't try to change election rules too close to an election. Okay. That sounds pretty good, right? I mean that seems sensible.
Sounds prudent, yes.
Okay. But in the Alabama case, the one they really take the three trips. Yeah. The Supreme Court s now says that while courts shouldn't make last minute changes. States can. Here's what they said. States are free to decide for themselves whether last-minute changes to an election are in their best interest. Meaning that a state can make a last minute change that dilutes the power of some voters, I guess, and maybe create some confusion, but that's not the same as a court doing it.
Now I wanna if you'll go back to that crazy story of the three trips that Alabama took, one part you might remember or I'll remind you about, Alabama had complained one of the times when it was ordered to change its map. Because they said it was too hard. It's gonna take us too much time. Right. It wasn't too hard this time when they were just a week away.
Correct.
So let's sum up where we are so far. If you have a claim that a state is engaged in illegal partisan gerrymandering, that's a political question that can't be judged by a court.
Doesn't matter.
Yeah, yeah. Doesn't matter. So if you want to win on a claim that the state diluted your votes, uh the gr voting rights of a racial minority. Under section two of the Voting Rights Act, then you have to show that the state intended to discriminate, which is another way of saying you're not going to be able to win. And courts shouldn't try to change election rules too close to an election, but states are free to do so.
Okay.
Okay. So the effect of all of this is even more gerrymandering. And that explains what actually happened in Texas and California.
Okay.
Okay.
Talk about those.
All right, sure. So one hurdle that section two challengers under the Voting Rights Act now face is that they have to show intentional discrimination instead of political gerrymandering, which apparently the states can do. So remember in two thousand and nineteen, in the case of Rucho versus Common Cause, gerrymandering is subject to the political question doctrine. Courts can't hear them.
So the court also said, if you'll remember, that partisan gerrymandering, well, it isn't that great for democracy. We'll tolerate it, but let's not encourage it. But in Calais, the decision that the court just decided this year, we see a dramatic change. Justice Alito, the author of The Opinion, says. Partisan gerrymandering is in fact a legitimate state interest.
In other words, not only do we tolerate partisan gerrymandering, states can and well maybe they should gerrymander in partisan ways as much as they want. Because if partisan gerrymandering is now a legitimate state goal, it's no longer just an unfortunate side effect of politics. It's something that states should be freely encouraged to do. Okay. So what are we facing this year? The midterms. Yes. Right? So now historically, the president's party loses seats in the midterms.
And I'm sure you you're aware that the Republicans are a majority in the House, but kind of just barely. Right. They've got like both maybe I think it's a six seat uh advantage right now. Now, last year Trump called on Texas to redraw its congressional districts, right? And Texas did just that. A group of voters filed a lawsuit arguing that race was impermissibly used to redraw the districts in Texas.
And the lower federal court ruled that Texas had in fact unconstitutionally drawn the new districts based impermissibly on race. Now on December fourth of last year, the Supreme Court put a pause on that order. And what did the Supreme Court rely on? The Purcell principle. It's just too late to change the rules before an election. So for the midterms, Texans will vote on a map. that the Federal District Court had found was used to target the seats of five black and Latino members of Congress.
And then you know of course what our state, California did. Yeah.
As a reaction, we decided we were going to erase those that five advantage basically. Yeah.
You're just gonna do the exact same thing.
Except for it went to a actual popular vote.
That's right. So we approved the Voters of California proposition fifty. So as a result of proposition fifty, California set aside a district map that had been drawn by an independent redistricting commission. And in its place is a new map drawn by the state legislature, which of course is controlled by the Democratic authority. So with this new map, California Democrats stand to win five more House seats. Right. Okay.
So proposition fifty itself was challenged in court, but the Supreme Court declined to review it. Okay. And that's just California and Texas, right? As a result of what's been going on in the Supreme Court, every state now has an incentive to redistrict in as partisan a manner as possible.
A number of states have already called for special sessions to redraw maps before the midterms. And the states that don't get their act together by the midterms will almost certainly redraw their maps before the twenty twenty eight elections. Yeah. And then house redistricting as a result of all this, I think, kind of starts to look like the Electoral College, right?
Yeah.
Yeah. Because any party that wins control of the state legislature and the governorship will immediately redraw its own maps. Yeah. And they'll try to lock in power for as long as they can. So red states are gonna get really, really red and blue states are gonna get really, really blue. And I guess the question is whether that's like a meaningful kind of democracy for ordinary American voters.
Um for black voters in the South, it almost certainly means reducing their ability to elect representatives of their choice.
It's a disaster.
¶ The Supreme Court's Partisan Agenda
Yeah, and I and I think one of the things that really is remarkable is the partisan nature of what's happening in these election decisions. The Collet decision is a six-three decision. And it turns section two of the Voting Rights Act into the exact opposite of what Congress had intended. So remember the 1982 amendments. were done so that it would be easier for challengers to win. All you have to show is that what the state did in redrawing its map.
They resulted in an abridgment or dilution of your voting power. But after the Calais decision of this year, Well, it doesn't really matter because you have to show that the state intended to engage in racial discrimination. And that's again, totally impossible.
Yeah, it's like are they racist in their heart kind of nonsense? And also because political lines and racial lines are, you know, they they they're not lockstep, but they're pretty linked. And so therefore you can always rely on the permissible version of this, which is it is a partisan gerrymander, not a racial gerrymander.
Exactly. You're always going to be I mean, that's certainly true in in the South and and with black voters, right? You're always going to be able to say, Well, we're just doing this to uh redistrict against Democrats, which also happen to map on to uh the power of black voters in the South. Yeah.
And then of course there's this courts timing in these cases, right? So there's the Purcell principle again, the basic idea that courts should not change the rules too close to elections. That'll confuse voters and make people mad. So what usually happens in a Supreme Court decision is that when we read a like a high profile case, we read it on the day it comes out.
But actually there's a period of time, thirty-two days, before the judgment is considered final. It's a procedural date. So it doesn't actually take effect formally for like about about a month. That's pretty normal. But in Calais, the Louisiana case, the white plaintiffs who were successful, they asked the court, Hey, can you issue the judgment right away?
Why is that?
Well, because Louisiana's primary election was officially scheduled for May 16th, which was just a few weeks after the Supreme Court's decision. And actually mail-in ballots had already gone out to voters. So when the Supreme Court decided that Louisiana's attempt initially to comply with the Voting Rights Act was unconstitutional, the governor then suspended the ongoing primary election. He said, Oh, we're gonna have a new one.
Yeah. And to make that happen, the winning parties in Calais asked the Supreme Court to speed things up. So that part I think is, you know, it's pretty nasty politics, right? But here the Supreme Court, the court, has a choice. The court could have said, No, we do things in a normal, regular procedural way and you have to wait. And that would have made it much more difficult for Louisiana to suspend its primary, you know, like nullify the mail-in ballots and then have a do-over.
Or the Supreme Court also could have said, uh, we have this momentous decision, but it's pretty close to the midterms, so they're not gonna take effect until like the next election cycle. It could have cited the Purcell principle, right? It said we don't wanna like confuse people.
But they didn't. They agreed. They agreed to let the judgment speed up in order for Louisiana to have this do-over. The same is true for the Alabama case. The reason the Supreme Court issued a four-page opinion in the Alabama case. Is because the state asked for an emergency ruling, letting it ignore the map they had been ordered to make.
from the lower federal court. So here too, the Supreme Court could have said, look, voters in Alabama are about to vote. We shouldn't do this. But the sixth justice majority again decided it would allow Alabama to use the map.
Mm-hmm.
But the Texas case, the one where the plaintiffs argued that the new maps demanded by President Trump were an unconstitutional racial gerrymander, and the lower federal court said, yes, it was. The Supreme Court blocked that ruling. And what did Justice Alito, who would later write the opinion in Collet, say about this lower court decision, which was in December? It's just too close to the election. Texas needs certainty for the 2026 midterms. Remember, he's saying this in December of 2025.
So is there a coherent principle explaining these decisions? It's hard to see when. A cynical person might say Purcell seems to matter when it helps GOP controlled states and it doesn't matter when it doesn't. Yeah.
That's I don't think it takes cynicism to make that decision. It just takes like a pattern recognition to make that determination.
¶ Paths to Electoral and Judicial Reform
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Since this all seems to be like a one way ratchet to make GOP states more GOP and democratic states more democratic, is there any way out of this?
Well, it's like that joke that's going around. I'm sure glad Congress isn't alive to see this.
Right. That's right.
Because theoretically there are several options that Congress could take. So remember, there is an elections clause. The Constitution does give Congress the power to regulate the time, place, and manner of elections for House members. That's a lot of potential power. House representation is based on population. The Constitution says every state has to have at least one house member.
But other than that, you know, there's a lot of freedom here. Yeah. Constitution doesn't require that House members come from specific geographic districts within a state. Instead, it that comes from Congress. Ever since 1971, Congress has required that states with more than one House member have to have single member districts.
That's not from the Constitution. That's Congress's choice. It's definitely one cause of the gerrymandering problem. Congress could require what would be called at large house elections. And that would mean voters in a state could vote for as many candidates as there were seats for a state in the House. It wouldn't matter where the voters came from or where the candidates were coming from. So at large elections would definitely eliminate gerrymandering.
strict shapes to contend with at all.
There'd be none of those. Um it might make candidates more politically moderate since they have to appeal to everybody in the state.
Sure. Or they lean hard into one small group and that puts them in the top five or whatever and that's fine. Yeah. Yeah.
I mean, but there's definitely some downsides. I mean it would make house elections much more expensive. Oh and I think some voting experts think it might not help minority voters. But I think I can say with some confidence that it's not worse, clearly worse.
Yeah, I don't think it could make it worse. I mean that's it does seem like you know, uh there might be something to be said about my district thinks more like me than not, but if we collectively have enough power to put that person in fourth place. in a statewide election, that seems like that's the way to get that done as well. You know, so the the idea of the related to land mass doesn't strike me as be all that compelling of a thing to keep to keep alive, honestly.
Yeah, that's definitely a possibility. Another one is Congress could use its elections clause power and actually ban multiple attempts at redistricting. The kind of thing that you see with Alabama and Louisiana. Just like every state gets one shot after the census and that's it. Yeah. Right? That's to only with be within their power.
Yeah.
Yeah. Um Congress could also require the states to establish nonpartisan independent redistricting commissions. So that would be at least one way to address some of the extreme partisanship we see in maps. That would be nice. There are just a handful of states that have independent commissions, uh except ours uh w was one of them, but is temporarily suspended for the time being.
Yeah, you know, like you it's like you can't bring a a knife to a gunfight, I guess. You know what I mean? It's like they're like really, really concerned. I mean there I mean they're just reacting to what is already happening. I don't think that would have happened otherwise.
Yeah, it's absolutely a race to the bottom which is completely sanctioned by everything that the court has done.
Which sucks. Yeah. What about the idea of just like not not capping at four thirty five? Have anyone thought about what that would do?
Yeah. I mean, there's no reason that we have to have it that way. I mean, that's another uh coming from a completely different angle. We could just have many more representatives, period.
Yeah. I mean then there's then there's some variety to become like, well, not everyone can be You know, a sick event to the eg the the executive branch. You know, like there must be just, you know, greater variety there and therefore, you know, like maybe um this sort of moribund Congress wouldn't exist the same way.
Yeah. And then of course there's the biggest question, right? The one that's not even the redistricting question. Do we even need to keep the Supreme Court the way it is? Right? I mean, that too is up to Congress, right? Yeah. The constitution requires no specific number of justices. Um, we've sometimes historically had six, we've sometimes historically had ten.
We've had nine s justices since eighteen sixty nine, but that is entirely a matter of choice. You know, I think lots of people are familiar with FDR's court packing plan. You know, he wanted to add six more justices to the court because The conservative majority kept striking down his New Deal legislation.
Uh the proposal didn't win, but he got what he wanted in the end for you know, uh for whatever reason. Now President Biden established a commission on Supreme Court reform in twenty twenty one. Nobody really expected the commission to do anything and it delivered on that because it issued a 288 page report in 2021. And, you know, this commission couldn't agree on whether to recommend packing the court. and didn't really offer any other recommendations either.
And after that, five months later, that's the leech document where we see the court deciding to overturn Roe versus Wade. You might remember in Dobbs, Justice Alito said it's time to heed the Constitution and return the issue of abortion to the people's elected representatives. That's the same justice who would say four years after Dobbs that partisan gerrymandering is a constitutionally permissible goal of government in the Calais decision. In fact it's a legitimate thing for states to do.
So court packing ideas have been tossed around for a long time, but I think some folks are beginning to think that it's less of a fringe idea. Yeah. Um. And because the number of justices isn't constitutionally required, it's actually much easier than some of the other Supreme Court proposals that have been passed around because
like let's say one of them is like term limits for justices. That's actually much harder. It would require constitutional amendment since we all understand the constitution to guarantee what's called life tenure for federal not just justices, but all federal judges. So it'd be much easier actually to pack the court.
Yeah. I mean you could do it with a majority, right? Or I guess uh you'd have to get over a veto if you had a no non agreeing executive. But other than that, that's it, right?
Right. And much easier than changing the Constitution.
Ja, mach, mach, mach.
¶ Upholding Democracy: A Call to Action
One last thing. Um I I just want to return for a moment to Purcell versus Gonzalez. In that case, the Supreme Court said confidence in the integrity of our electoral processes is essential to the foundation of our participatory democracy. So as we get closer to the midterms, it's pretty clear that people are worried about election interference, vote dilution, voter suppression.
Will the Supreme Court play a role in supporting American democracy and diminishing partisan tension? I I don't think it's clear at this moment.
Well I mean I think it's clear.
The wrong direction.
It's the wrong direction. It's clear that they're not going to diminish anything. They're just gonna be more partisan and make it all worse. It's just a terrible situation to be in. Um, apply intent to it. You certainly can apply results to it. The result is Republicans are winning these fights all the time. At a certain point you have to assume the intent, because otherwise the results don't make any sense.
Absolutely.
Um well this is uh fascinating and depressing stuff. Um hopefully, you know, the the thing that I hope for is People are so disgusted with Trump right now. And there's like these, you know, plus thirty generic Democrat advantage that even in these ultra red states, you're talking about, you know. ten points in maybe like these these redistricting efforts like won't actually work in a way. You know what I mean? Maybe they'll surprise people by what people vote for in the end.
I think that's right. And one of the things to keep in mind is I think, you know, this is a it's an easy moment to be really really cynical and think like nothing really matters. But what is actually going to overcome all of this? It's not cynicism, but actually working hard to make sure that some of these barriers are overcome.
That that's right.'Cause these these advantages in these different states and these different different districts is not set in stone. And there's way more people that don't vote that could change the election tremendously. And you know, if we just went through a primary, you know, vote here in California and it had incredible
amount of participation. And you know, it was really It's it was heartening and so I really do hope that when we get to the next phase of it that the bad actors and all this are just surprised by the amount of people who actually care about the election enough to vote and therefore vote them out of office. So let's hope that the political remedy is actually the one that actually could actually happen. But we'll have to see. Yep. Thank you.
Thanks, Roman.
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If you want more on the Supreme Court and Article 3 and how the judicial branch is structured, check out the 99% visible breakdown of the Constitution. Our guest was Adam Liptak. It was really a fantastic episode. This show is produced by Elizabeth Joe, Isabel Angel, and me, Roman Mars. It's mixed by Martin Gonzalez. Our executive producer is Kathy Two. You can find us online at learnconlaw.com.
All the music and what Trump can teach us about con law is provided by Doomtree Records, the Midwest Hip Hop Collective. You can find out more about Doomtree Records, get merched, and learn about who's on tour at Doomtree.net. We are part of the Sirius XM podcast family.
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