NRPLUS MEMBER ARTICLE {T} he Supreme Court this morning dealt a blow to House Republicans by unanimously turning away Alabama’s emergency appeals in its ongoing congressional-redistricting fight. That fight isn’t over as it goes now to a special master who’ll draw new lines, but it means that the Alabama legislature’s replacement map (which would likely have been 6–1 Republican, like the existing map) goes the same way as its current map, which was effectively thrown out in June under Section 2 of the Voting Rights Act by the Court’s decision in Allen v. Milligan.
This increases the likelihood that the special master will draw a map with a second majority-black district. It’s not impossible that Republicans can sometimes win such a district, because it is hard to draw plausible maps with two safe Democratic districts in a state with Alabama’s electorate and geography. But from a strictly partisan perspective, it would be a distinct change from the current map, where each of the six Republican seats is rated at least R+16 in the Cook Partisan Voting Index.
The Allen decision effectively requires race-conscious gerrymandering. Alabama had argued that a computer asked to draw the lines on the basis of other traditional criteria, but with no information about the race of voters, would be overwhelmingly unlikely to come up with two majority-black districts in the state. Only by making race the predominant consideration would the legislature be likely to draw a second such district. Because of their reading of Section 2 and the Court’s precedents under it, however, Chief Justice John Roberts and Justice Brett Kavanaugh concluded that the sort of explicit race discrimination they’ve condemned in other contexts is mandated here.
This time, that helps Democrats at the expense of Republicans. To the extent that black voters in Alabama and nationally identify their interests with Democrats rather than with Republicans, it advances black voters’ preferred political outcomes. But that’s not always the case. In a number of states over the years, the drawing of majority-black districts has helped Republicans by packing the most loyal Democratic voting blocs into lopsidedly Democratic districts (an outcome that has caused Democrats and liberals to object selectively to the practice). A second-order effect of such districts is to channel black politicians away from cutting their teeth in competitive, racially mixed districts where they might learn the skills and build the voting records needed to make the leap to statewide office.
Why should we, in 21st-century America, draw the lines of House districts on the basis of race?
Set aside for the moment the more general question of partisan gerrymandering. Neither the Supreme Court nor Congress has banned this, although some state constitutions do, and I would support some outer limits on the most abusive practices in drawing really oddly shaped districts.
The theory of racial gerrymandering is that black voters have a right to be represented in Congress in something resembling proportion to their numbers. American elections are not, however, conducted on the basis of proportional representation but on the basis of winner-take-all elections. Elections to the Senate, since the ratification of the 17th Amendment, are all about majority rule: The choice of the state’s majority goes to the Senate, and so long as that majority remains unified, even a determined 48 or 49 percent of the state’s population never sees one of its own elected.
Because each House district is winner-take-all, the minority within each district will likewise be shut out — sometimes if the district is competitive, every time if it’s not. And it’s hardly unusual for entire state delegations to leave a partisan or other minority with disproportionately little or no representation. Current Democratic-drawn maps have produced some lopsided partisan delegations ranging from all-Democratic to more than 80 percent Democratic: 9–0 in Massachusetts, 5–0 in Connecticut, 7–1 in Maryland, 8–2 in Washington, and 14–3 in Illinois. Some of these are due to egregious gerrymanders, but not all of them.
Is that unjust? Aside from generalized complaints about gerrymandering, nobody in American political life today seriously argues that Republicans in Massachusetts and Connecticut having no representation in Congress is an injustice deserving of some remedy similar to the Voting Rights Act. Those Republicans are largely white and may have other things demographically more in common with one another than with the majority. If Democrats in Alabama and Mississippi do have such a right on account of being black, what is the basis for that superior right?
Does that right vary based on whether more majority-black districts equal more national representation for the party those voters support? If we equate the interests of black voters with the interest of maximizing the power of Democrats to win a national House majority, can’t black voters in Alabama take solace in the disproportionate power of Democrats in Maryland and Massachusetts? After all, that’s what we tell white Republicans in those states — don’t worry, you’ll be protected from abuse by your state so long as your party has a national foothold.
There are a few variations on the argument for requiring racial gerrymandering in Congress, but they boil down to three claims:
- Black voters have different interests than other voters to the extent that they won’t be equally represented even by a map that has fewer majority-black districts but the same partisan composition.
- Black voters for historical reasons (given the history of race discrimination in America in general and in the South in particular) are entitled to special solicitude that ensures their representation — perhaps to the extent of ensuring the maximization of the national power of the party they prefer — in a way other political minorities are not.
- For similar historical reasons, we don’t trust states to treat black voters as fairly as they treat other political minorities in the process of partisan gerrymandering.
We can leave aside the third concern because there is really no reason why it cannot adequately be handled by preventing states from considering race in drawing districts in the first place.
The first argument had a strong basis in, say, 1955. The parties, Democrats in particular, did not act as if the interests of black voters within their own party were to be treated the same as the interests of their white constituents. Southern systems that were originally rigged against black voters (both in terms of voting rights and in how election and district systems were drawn) did not cease to be rigged once those voters began supporting the Democrats in large numbers during the New Deal.
But is it true today? Consider a Democrat in a typically 55–45 state or district, where 20 percent of the voters are black and 90 percent of them vote Democratic. Is it realistic to say that those voters won’t get a fair hearing from an elected official whose survival in office depends on their turning out at every election? How many Democrats today would argue that their party doesn’t give its black voters the same attention and service it gives the rest of its voting base? Sure, everybody has their complaints about feeling taken for granted, but in the hyper-partisan climate of 2023, the one thing both parties can be reliably counted upon to do is cater to the interests of their voters.
That includes the drawing of districts. If federal law were to be read to place no restrictions on the racial composition of House districts, how many would be majority black? Fewer, because some Republican-controlled states such as Alabama and Mississippi would prefer, if possible, to have all-Republican delegations, because some Democratic-controlled states would prefer to distribute black voters into more districts where they could help Democrats win, and because other competing factors would make it less likely that really strangely shaped districts would be drawn solely for racial purposes. But by no means zero, not so long as black populations in some states were large and geographically concentrated. And, again, black voters who regularly vote Democratic and end up in Democratic districts would still be better represented than white voters who vote Republican but live in states with no Republicans in their federal delegations.
Of course, there may be particular things that black voters want done that Democrats won’t do because they won’t fly with the rest of the electorate. But how many of those things can actually be done by a small caucus within the House anyway?
There may well be a stronger argument for ensuring black representation as such — rather than ensuring fairness for all in representation — at the level of state legislatures, for two reasons. One, state governments do many more things that are geographically particular, such as allocating education and infrastructure funding, building locally unpopular things like prisons, etc. Two, in the federal legislature, an outvoted minority in one state can be balanced against an outvoting majority in another, but if you’re a black Alabaman, your state government is Republican; it shouldn’t be able to draw maps that make it unanimously so.
But then, there is also less need to be creatively race-conscious in drawing state legislative districts because most such districts are smaller than House districts, and it’s much harder to draw a map that creates no majority-black state-house districts in a state with significant black communities. The average House district now exceeds 750,000 residents. Per Ballotpedia, that’s much bigger than any state-assembly district and almost all state-senate districts:
Out of all state senates, California’s senators represent the most residents, 989,419 per senator, while North Dakota’s senators represent the fewest, 16,589 per senator. Amongst all state houses, California’s assembly members also represent the most residents, 494,709 per representative, while New Hampshire representatives represent the fewest, 3,448 residents per representative. . . . On average, the 5,413 state representatives served 61,169 Americans as of the 2020 census, while each of the 1,973 state senators represented 167,820 Americans.
That, by the way, is yet another argument in favor of expanding the House, which has been frozen at 435 members for a century now after having expanded regularly during the first century or so under the Constitution. More districts would ensure that more and smaller communities each get their House members, no matter how the borders are drawn.
Let’s consider the other argument: that there is an essentially remedial reason why we should give some racial-minority groups a legal right to their own district while denying the same right to other Americans. Consider an illustrative, simplified example of five otherwise-identical states. All five have ten House districts. All five are solidly red states: Republicans get 57 percent of the statewide vote in a typical year, which may vary a few points in either direction based on the national environment.
State A is an overwhelmingly white, rural state. The state’s Democrats, including most of the state’s small black population, are spread about evenly across the rural areas but are more concentrated in the state’s few, relatively small cities.
State B is the same as State A, but its electorate is deeply polarized along religious rather than racial lines. The minority religious group is concentrated in particular parts of the state and is typically shut out in statewide elections.
State C is (like Alabama) close to 40 percent black. Its electorate is polarized along racial lines, with most white voters supporting Republicans and most black voters supporting Democrats. But State C is a northern state with no particular history in the past century and a half of using gerrymandering or obstacles to voting to suppress black political participation.
State D is the same as State C, except that a third of the state’s population is made up of some third group (Hispanic, Asian, and/or Native American voters) that swings between the two parties.
State E is the same as State C, except it is a Deep South state that had, until the end of the 1960s, a long, nasty history of Jim Crow and everything that entailed.
In each of these five cases, the state’s Republican legislature uses computerized simulations that consider partisan voting behavior as well as neutral criteria such as compactness of the districts and respect for county lines. In each of the five, the simulations yield an essentially identical map full of plausibly shaped districts that manages to give Republicans a disproportionate share of the seats — maybe all ten, or maybe eight or nine. This is not an entirely implausible outcome. None of these simulations consider race.
The question I’m proposing is this: Should the Voting Rights Act treat States A through E the same? If not, why not?
State A and State C, for example, both have an outnumbered Democratic minority, and neither has the kind of history of discrimination that would have placed the state under any legal rule of suspicion. Should State C’s Democrats be entitled to more seats than State A’s Democrats just because State C’s Democrats are black?
If State C’s Democrats are treated the same as State A’s Democrats, should State E’s Democrats be entitled to more seats than State C’s Democrats because there’s a history of electoral discrimination — even though State C’s Democrats are also black?
If the politics of the white and black voters of State C and State D are the same, should they live under different legal regimes due to the presence of a large, third racial group? If so, is that fair to State D’s black voters? If not, is that fair to the third group? In an increasingly multiracial America, this is a question that arises more and more frequently. And if all groups other than white voters are given the same right to representation as black voters, is there a point in the process of changing demographics at which that should cease?
What about State B? If the minority of State C’s voters get special solicitude for being a racial group, and the minority of State A’s voters don’t, where do we put the religious minority?
Merely to explore how the theory might apply in practice is to see how it’s flawed. In the context of a national legislature and two parties highly motivated to maximize their own power and cater to their own voters in order to do so, there’s no longer a good reason to draw Alabama’s House districts under different rules than we use for Connecticut’s. There’s no longer a compelling justification, in a multiracial democracy, for using the race of some voters and not others as a basis for determining how much political power they should have.