The Supreme Court Was Right to Ban Race-Based Gerrymandering

The Supreme Court’s April 29 ruling by a 6-3 vote in the case of Louisiana v. Callais striking down the practice of race-based gerrymandering as an improper application of the 1965 Voting Rights Act has been widely decried by ostensibly liberal scholars and journalists as, in the words of dissenting justice Elena Kagan, a setback to “the foundational right Congress granted” in the Act to “racial equality in electoral opportunity.” Similarly, Janai S. Nelson, president of the NAACP, decried the decision as representing “a day of loss of any remnant of credibility of this Supreme Court to rise above partisan politics.” 

In fact, the decision’s critics are wrong, and it actually​ ​​constitutes ​a tremendous victory for the principle that the allocation of voting rights should not be based on racial considerations. The 1965 Act was based on just that principle. It aimed at overturning the outrageous acts of governmental discrimination at the ballot box against black people that had been widely practiced throughout the former Confederate states and in other states with large African-American populations, ever since the end of Reconstruction in 1876. While the Act, notably in its requirement that states with low percentages of “minority” voting should obtain “pre-clearance” from the Justice Department for any changes to their electoral laws that might weaken minority voting, constituted an unprecedented intrusion of Federal authority into state affairs, it was fully justified as an essential means of enforcing the Fifteenth Amendment.  

Here, a bit of history is needed. The Voting Rights Act (hereafter VRA) had authorized the Attorney General “to enforce the guarantees of the fifteenth amendment in any State or political subdivision” where a court found “that a test or device has been used for the purpose or with the effect of denying or abridging the right of any citizen of the United States to vote on account of race or color,” by “suspend[ing] the use of tests and devices in such State or political subdivisions as the court shall determine is appropriate and for such period as it deems necessary.” Aside from authorizing criminal prosecution of those engaged in abridging the votes of persons of color, the law provided for preclearance in any “political subdivision or state” wherein the Census Director determined that fewer than half the persons of voting age residing therein were registered on November 1, 1964, or that fewer than half had voted in that year’s Presidential election.   

While the law’s broad coverage, which wound up encompassing areas with substantial Latino and Asian-American populations that failed to meet the 50-percent voting requirement despite the absence of evidence of discrimination against them, was more or less arbitrary, given the goal of vindicating black people’s right to vote and hold office, it worked. Given the rise of black political participation and officeholding to record levels, a Court majority in the 2013 case of Shelby County v. Holder struck down the preclearance rule as no longer needed, thereby eliminating Federal interference in state electoral procedures. (Prefiguring the Democrats’ current stance, New York Senator Chuck Schumer declared the ruling a “back door way to gut” the VRA. But Census Bureau statistics have demonstrated a continuing rise in black voting-age voter participation since then: leaving aside the high number of black voters in the two elections when Barack Obama was on the ballot, African-American turnouts in the midterm elections of 2018 and 2022 (voter turnout typically declines in off-year Congressional elections) rose to 51.1% in 2018 and 45.1% in 2022. 

Congress, however, had added a further fillip to the VRA in 1982 by eliminating the requirement that plaintiffs prove discriminatory intent in order to overturn changes in voting regulations. And this fillip exacerbated a distortion of the Act’s meaning and purpose that courts and Federal officials had already introduced: first holding that the Act required electoral districts be drawn in a way that was proportionate to their current population strength in a given area (effectively eliminating at-large districts at the local level in places where the “minority” was in fact in the minority) and then requiring the adoption of voting methods that facilitate the election of the maximum possible number of minority officeholders. (This change and its effects are amply documented in Abigail Thernstrom’s classic 1987 study​,​ Whose Votes Count? Affirmative Action and Minority Voting Rights.) It is that misinterpretation of the Voting Rights Act that the Court ​aimed largely to dismantle in Callais​.  

In Callais, the Court overruled the Louisiana legislature’s creation of a revised map for Congressional representation that established two majority-Black districts, holding it violated the VRA, after two lower courts had ruled that an earlier map with just one majority-Black district violated the VRA. Advocates of the legislation had claimed it was necessary to comply with the VRA provision that banned the use of standards or procedures that interfered with the voting rights of specified minorities. Yet it did no such thing. How ironic: in the name of preventing discrimination in voting procedures based on race, advocates were demanding just such a rule. (For the NAACP president to attribute the Callais ruling to purely “partisan politics” is laughable, since everyone knows that the chief motive of the planned redistricting was to increase the number of Democratic members in Congress, on the assumption that blacks are more likely than whites to vote Democratic - while also bestowing on some one member of the race favored by the map the opportunity to win office.) 

Louisiana was one of several states that had created race-based gerrymanders with a view to maximizing the number of districts wherein blacks were in a majority, on the assumption that having the right to vote means not just participating in the choice of an elected official, but guaranteeing that the winner will be like oneself in the single characteristic of sharing one’s race or skin color. There are several things wrong with this policy. In the first place, it wrongly assumes that blacks (or Latinos) can be nearly all​ assumed to vote on the basis of race, rather than for reasons of shared policy views that have little or nothing to do with skin color. This assumption can easily be refuted by noting divisions among black voters (or members of other races) on policy matters, as indicated by the number of black Republicans elected to national office (from Senator Ed Brooke of Massachusetts in the 1960s and ‘70s to Tim Scott of South Carolina today). It equally flies in the face of evidence that well-qualified and professedly or actually moderate black candidates are able to win the votes of white majorities, including not only Brooke and Scott but Governor Doug Wilder of Virginia and President Obama (twice)! It is demeaning to black people to treat them as if they lacked the capacity for judgment possessed by whites to make a reasoned assessment of a candidate’s qualifications for office, based not only on his race but on whether the policies he stands for are most likely to benefit the state or nation as a whole. Finally, it ignores the growing prominence of insightful black political commentators and intellectuals who lean conservative, regardless of their political affiliation, such as Thomas Sowell, Shelby Steele, and Adam Coleman.  

Another harmful effect of creating districts based on race is to promote the election of candidates who will take the most extreme stances on public policies, figuring that in order to win, they need only “out-black” their rivals. But the promotion of extremism is just what we should want to avoid in choosing legislators, whose proper job is supposed to consist in joint deliberation and compromise with other representatives, rather than grandstanding to please one’s core constituents. (For examples of such extremism,  consider the behavior of longtime California representative Maxine Waters, who loudly browbeat Al Gore over the issue of affirmative action as a condition of winning her support in the 2000 Democratic Presidential primary, and Texas representative Sheila Jackson Lee, who made the news in 2017 when she successfully ordered United Airlines to displace the holder of a first-class seat to make room for her, lest it be guilty of “racism.”)  

Finally, one should consider the politically harmful effect of drawing Congressional districts chiefly ​​​​based on​ race, especially when this requires bringing together constituents who live far from each other and are therefore less likely to share common interests. In fact, the district that Louisiana had been sued to create to ensure a second “majority-minority” constituency stretched 250 miles, in an effort just to scoop up enough black voters, regardless of whatever their constituents’ more local interests were. Of a similar character was the new majority-minority district recently carved out by the legislature in Virginia, although its adoption was immediately struck down by the Virginia Supreme Court as violative of the procedures required by the state’s constitution. And why should being black or Latino always be the chief element to be considered in promoting the interests of minorities? Consider the 1977 Supreme Court ruling in United Jewish Organizations of Williamsburgh v. Carey, which was upheld by 8-1 a redistricting plan that sliced Hasidic-majority Senate and assembly districts in Brooklyn in half, and was openly designed to increase the number of “nonwhite” (black and Puerto Rican) legislators elected. (If anything, one would think that the Chasidim have a greater claim to have a representative reflecting their views in a state’s legislature, since Chasidism, a form of strictly Orthodox Judaism, entails a common set of beliefs, whereas skin color, or Latino or Asian ancestry, do not.) 

​As America celebrates its semiquincentennial, it is time to return to the principles of the Declaration of Independence and the Constitution, which dictate that citizens should be represented in their government as individuals, rather than as members of pre-selected groups based on race or ethnicity. ​

​David Lewis Schaefer is Professor Emeritus of Political Science at College of the Holy Cross.