The Supreme Court continues to bollix up congressional redistricting. Congress should fix it.
Constitutional textualists — the term the late Justice Antonin Scalia applied to his jurisprudential approach — note persuasively that a close reading of the language and history of of the Voting Rights Act does not mandate any particular racial thresholds or results. Instead, it says that if electoral results are consistently and suspiciously skewed, that “is one circumstance which may be considered” when assessing if a violation has occurred, “provided, that nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population.” (The italics were mine, for emphasis.)
The language was added to a of Section 2 that Congress, with President Ronald Reagan’s assent, amended in 1982 in response to a Supreme Court decision, . That ruling said courts had no grounds to overturn multi-member districts in Mobile, Alabama, even though the multi-member system effectively gave little voice to what was then a Black minority in the city.
Once the 1982 language was added, many Democrats, aided by court rulings that from that actual text, often have tried turning the “one circumstance” that “may be considered” into a near-absolute mandate for so-called “opportunity districts” for Black voters. For years, their interpretations have skewed ever farther from the actual 1982 language.
Contrarily, many Republicans, including legislators in Louisiana and Alabama in the wake of last month’s Supreme Court decision in the case, are guilty of ignoring the importance and intent of Congress’ 1982 amendment to Section 2. That amendment wasn’t a mere piffle; it clearly did add something to the landmark 1965 civil rights legislation.
To wit: Legislators still tread dangerously if they draw weirdly configured districts that shoehorn geographically separated groups of Black voters into a single district in ways that dilute those voters’ influence in the rest of the state. Remember: The animating goal of the Voting Rights Act is indeed to safeguard minority rights.
The 1993 decision in , widely celebrated by conservatives, reaffirmed that “traditional districting principles such as compactness and contiguity” shouldn’t be flouted. Yet produced by the GOP-dominated state Senate last week arguably violates those principles, especially in appending a predominantly Black section of East Baton Rouge to a district to which it has only the slimmest geographical connection.
Yes, that’s bad.
Alas, the Callais decision — whose conclusion I supported, but not its reasoning — did little to stop the endless parsing of what is and isn’t a racial “result” or a racial “intent” in drawing district lines, or of how to adjudge if districts are compact and contiguous enough to pass muster.
A half-century of confusion and discord over redistricting, combined with the past year’s abominable re-redistricting across the country, is too much. Louisiana’s former Sen. Mary Landrieu and former U.S. Rep. Charles Boustany, in I saw only after I began writing this piece, are right to suggest nearly the same thing I propose here. Namely, Congress must take charge.
After all, while the Constitution gives state legislatures primary authority over the “times, places and manner” of holding federal elections, it then gives plenary power to Congress “at any time by law [to] make or alter such regulations.”
Therefore, Congress should do two things. First, completely ban mid-decade redistricting except in response to a specific court order. Each state should redistrict only once after each decennial census. Stop the partisan bloodsport.
The second congressional action would be more complicated, perhaps necessitating a special commission’s help. It would require taking redistricting away from state legislatures entirely and permanently. (A constitutional amendment doing so might be even better). Instead, completely without regard to racial considerations pro or con — and without regard to Section 2, which would no longer apply to redistricting but still apply to all other vote-related practices — Congress could make each state abide by the exact same, utterly neutral computer algorithm in drawing districts.
Essentially, the algorithm would be programmed to start in one corner of each state and, following parish or county lines in contiguous order and to the maximum degree of compactness, create the state’s districts in compliance with one-person/one-vote principles.
No human intent. No political considerations. Just a combination of pure, blind math and already-established political boundaries.
If Black citizens (or Hispanic ones, or whoever) live in enough proximity to each other to form a majority in a district, as they quite often will, fine. If not, then not. Regardless, the rules would be neutral, all discriminatory intent removed and gerrymandering would be eliminated forever.
If Congress doesn’t do something like that, the vicious political brawls, admixed with racial grievance, will only intensify.