The Supreme Court says racist redistricting is illegal
Racist gerrymandering against white people is illegal, the Supreme Court decided last week in Louisiana v. Callais. It turns out, you cannot actually redraw congressional district lines to benefit black voters over everyone else without violating that one part of the Constitution that says you have to treat everyone the same under the law. You know, the Fourteenth Amendment.
What happened was, Louisiana previously had one congressional district of mostly black voters out of a total of five districts. That means the elected official from that district, Troy Carter, was the only black person in the state’s delegation at the U.S. House of Representatives. The delegation was therefore 20% black even though blacks make up 30% of the state’s population. To some, that doesn’t seem fair. If blacks are 30% of the state’s population, they think, shouldn’t its representatives be 30% black?
But here’s the problem with that kind of thinking. Louisiana is also 53% Protestant and 22% Catholic. Should half its representatives be Protestant? Does at least one have to be Catholic? What about atheists? Or Muslims? Or gays? What about trans people? Non-binaries? Furries? And if you think that’s going too far, how about if we just keep it to racial groups? Latinos are almost 10% of the population, so is Louisiana soon going to have to redraw districts on their behalf too? And what happens if you draw a district in order to produce a black representative, but the black voters there refuse to comply by voting for a non-black delegate?
When I visited Portland a few years ago, there were so many homeless tents on the sidewalks that you had to walk in the street. Portland’s woke progressives didn’t seem very concerned with the negative impact this was having on working people. I was reminded that American communism had shifted from class-consciousness to phenotype-focus years ago. But when it became evident that people in wheelchairs were unable to get around, and were suing as a result, suddenly the people of Portlandia had to make a difficult decision. One group had to go. The homeless, of course. But the Portlandians predictably tried to please everyone, made a right mess of it, and are still sadly chipping away at a half-measure to this day.
Situations like that are a good illustration of Pareto efficiency. In the field of computational redistricting, which uses mathematics and graph theory to analyze how district lines translate into political power, one key concept borrowed from economics is Pareto efficiency, or the idea that you can’t improve outcomes for one group without making things worse for another. In redistricting, this problem becomes vivid when multiple minority groups live in the same geographic area. If you draw a district to maximize black voting power in a neighborhood where Jewish and Latino voters also live, then you dilute those other groups’ influence in that district. And if you redraw the line to benefit one group on the basis of their race, then you are harming other groups on the basis of their race. You cannot use “positive racism” to fight negative racism because it’s all racism.
One counter-argument is that the heart of the matter is not about having a delegate whose skin color matches your own, but about having a voice of your own and the ability to choose your own representative, regardless of skin color. But if so, why do blacks get to have a protected voice in that sense and not other oppressed minority groups? One might say the reason is because of historic oppression, particularly against black voters in this country, and there’s no denying that. But the problem is, gerrymandering has been used to reduce the voting power of other groups too. That includes Latino voters along the southern border, Chinese immigrants in western states, Native American voters on reservations, Irish and Italian immigrants in northern industrial cities, and Catholics and Jews pretty much anywhere you find them. Even if you wanted to get out your scissors, there’s no way to cut the map to make it fair for everyone because all the ideological and phenotypical aspects of human identity are far to complex to capture within the mental and physical limitations of the five or even six representatives you’d have on hand. It’s impossible.
And, even if you try to maximize your coverage of identity groups by selecting for the most intersectionally representative people — picture, if you will, a black trans disabled Catholic drag queen — you’re still never going to succeed because there are simply too many possible demographics. Say you create a district that benefits blacks, but that most of the gay people in your state are whites who live in the parishes that make up that district. You’d better hope those gay voters lean in the same direction as those black voters, otherwise your new pro-black district is going to end up also being, according to the divine laws of Kendian algebra, an anti-gay district.
These race games — whether it’s affirmative action, restorative justice, or racial redistricting — are often well-intentioned. But then, so is war. And like war, race is a strange game where the only winning move is not to play. The government really ought to stay out of it as much as possible, and the way that the Supreme Court has decided to do this is by stepping in only to prevent active discrimination. So if you want to use the Voting Rights Act to prevent deliberate racism, such as by making it illegal to gerrymander districts in a way that seeks to dilute black voting power, that’s fine. But if you want to use the Voting Rights Act to carry out deliberate racism, such as by gerrymandering districts in a way that seeks to strengthen black voting power (and weaken non-black voting power), that’s a problem.
So to review, under two lower court orders, Louisiana redrew its congressional map to create an absurdly gerrymandered second district that would also be mostly black. The lower courts had reasoned that having just one black district probably violated Section 2 of the Voting Rights Act, which was created to prevent racist gerrymandering that would redraw district lines to dilute black voting power. This was done either by spreading black voters thin across a number of districts, making them a minority in each one, or by packing them into one district so that they dominate that one but lose in all others. The Voting Rights Act stopped this, but it doesn’t legally guarantee fairness. It just prevents states from deliberately rigging their districts to make sure that blacks can’t elect their preferred candidates. Its wisdom is that it says you cannot make elections fair for everyone in every way, but you can stop folks from deliberately trying to make them unfair.
It’s important to keep in mind that in 2023, the Supreme Court also ruled in Allen v. Milligan that Alabama’s map illegally diluted black voting power, a precedent that voting rights advocates then successfully applied to Louisiana. So you can use racial considerations to prevent people from having their voice taken away. But again, race cannot be your primary consideration when advantaging one group over another. Let this be a lesson, though few will deign to stoop low enough to learn it. The best way to prevent racism in this country is by having the government generally step back, leave people alone, and step in only when racism is actively taking place in a way that prevents people from accessing their rights. In almost every circumstance when the government did otherwise, the results have been catastrophic, have often led to an increase in racism, and have rarely done the black community any lasting good.
In its recent decision, the Court agreed to let Louisiana to draw a new map ahead of House elections this November. That map is expected to favor Republicans, who will now likely take all six House seats. Justice Ketanji Brown Jackson, the loudest judge on the bench, was predictably the lone dissenter, arguing that the court’s ruling “has spawned chaos in the State of Louisiana.” As if telling her to calm the hell down, but in the reserved diction of one who sits on the Supreme Court bench, Justices Samuel Alito, Clarence Thomas, and Neil Gorsuch replied that her comment “lacks restraint.”
Critics are now calling the decision a death blow to the Voting Rights Act. Politico declared the law effectively a “dead letter.” Obama posted on X that the decision “effectively guts a key pillar of the Voting Rights Act, freeing state legislatures to gerrymander legislative districts to systematically dilute and weaken the voting power of racial minorities.” There may be some truth to this, but to the extent that active racism is required to prevent the dilution of that power, such power has no place in America. What comes next will be a major political shift in the South, and what shape that takes is anybody’s guess. But at least it will no longer take the crooked, gerrymandered shape of explicit racism. And, as the constitutional law professor Josh Blackman recently wrote, “Going forward, black people will no longer be moved around like pawns to maximize Democratic districts.”