Gerrymandering and Disenfranchisement
Race and partisanship collide once again.
In “Justice Kagan’s peculiar idea of voting rights,” WaPo columnist Jason Willick comes at the issue I was wrestling with in “Is Partisanship Merely a Proxy for Race?” from a different angle. He inadvertently illustrates why separating race and partisanship is more difficult than it may seem.
Think of a Republican living in San Francisco. She always votes, but the politicians she wants to send to Congress lose to Democrats by a wide margin every time. She is never represented by the candidate of her choice. Is she disenfranchised?
Or think of a Democrat living in Wyoming. He also goes to the polls every election cycle, but his preferred candidates for federal office are always outvoted by Republicans. Is he disenfranchised?
The answer is no. If people can vote, and their votes are counted equally, they are enfranchised even if they are outnumbered.
That’s too simplistic, actually. If the citizen in question is voting to decide the next mayor of San Francisco or governor or US Senator from Wyoming, Willick is right. They were simply outvoted by their fellow citizens. But I would contend that those citizens are indeed disenfranchised when voting for President, owing to the wildly undemocratic nature of the Electoral College.
That principle was at the philosophical core of the Supreme Court’s 6-3 decision last week in Louisiana v. Callais.
The court held, in a nutshell, that states no longer need to go out of their way to draw majority-Black or majority-Hispanic congressional districts under the Voting Rights Act. The VRA says that racial minority voters must have equal opportunity “to elect representatives of their choice.” But voters of all races have that opportunity at the ballot box, the court said, even if they live in congressional districts where their favored political party is unlikely ever to prevail.
Justice Elena Kagan’s dissent condemned the majority for “stripping minority citizens of their voting rights.” But, of course, no one’s right to cast a vote will be affected. What will change is the political composition of the districts people vote in, assuming states change their congressional boundaries in light of the new rules.
Here, I tend to agree. I’ve always found the idea that, if 70 percent of a state’s population is White and 30 percent is Black, we should expect 30 percent of the elected representatives to be Black rather odd.
Yet, I absolutely think that, if 70 percent of a state’s population is Republican and 30 percent is Democratic, we should expect roughly 30 percent of the elected representatives to be Democrats. Because party affiliation is directly on the ballot, we readily see that drawing the lines in such a way that 90 percent of the representatives are Republican is unfair. In that scenario, the state’s Democrats have clearly been disenfranchised.
We’ve all seen this many times over the years:
It’s seldom possible to draw Congressional District lines to perfectly match the partisan preferences of the citizenry, simply because there aren’t enough districts. But a neutral observer would clearly judge the fairness of the outcome by how close it came to the 60-40 split.
For Kagan, voting in a jurisdiction where your favored candidate will lose is next to meaningless. “What if the districts in which minority citizens exercise voting power” — that is, districts where a state’s minority population has been grouped together to comply with the VRA — “are sliced up, and the pieces appended to districts in which they can play no meaningful role?” she asked.
The right to vote, as Kagan formulates it, seems to include the right to have the satisfaction of voting for the winner. For those in the political minority, “voting power” is a mirage.
But that’s not Kagan’s position. She’s simply refusing to separate race and partisanship. Here’s the opening paragraph of her dissent (joined by Justices Sotomayor and Jackson):
Consider the story of a hypothetical congressional districtin a hypothetical State, subjected to a redistricting scheme. The example is admittedly stylized, but in its essence simulates the dispute before us, and clarifies the immense issues at stake. The district, let’s say, is a single county, in the shape of a near-perfect circle, sitting in the middle of a >rectangular State. The State is one with a long history of virulent racial discrimination, and its many effects, including in residential segregation and political division, remain significant even today. The population of the circle district is 90% Black; the rest of the State, divided into five surrounding districts, is 90% White. And voting throughout all those districts is racially polarized: Black residents vote heavily for Democratic candidates, while White residents vote heavily for Republicans. The circle district thus enables the State’s Black community to elect a representative of its choice, whom no neighboring community would put in office. But that arrangement, in this not-so-hypothetical, is not to last. The state legislature decides to eliminate the circle district, slicing it into six pie pieces and allocating one each to six new, still solidly White congressional districts. The State’s Black voters are now widely dispersed, and (unlike the State’s White voters) lack any ability to elect a representative of their choice. Election after election, Black citizens’ votes are, by every practical measure, wasted.
If we change Black and White to Democrat and Republican, respectively, there’s simply no question that she’s right. It’s only when we separate out race as a separate category—one that’s supposed to be immaterial in the drawing of districts—that it’s a debatable proposition.
That’s a jarring conception of representative democracy, which depends on the idea that representatives “speak for” their entire constituency. Hundreds of millions of Americans can’t all gather and deliberate on how to govern themselves, so they select a few hundred politicians to do so on their behalf. For that process to work, everyone has to be bound by the decisions of the political representatives — even those who didn’t vote for the politician who represents their district.
Kagan is calling that bargain into question. And the bargain, admittedly, is fragile: How can a person be represented by someone against his will? A litigant can choose the lawyer he wants to represent him in a contract negotiation. But many millions of Americans are represented in Congress by politicians of the opposing party they see as working against their interests. They have to accept the outcome of the legislative process anyway, or government by consent of the governed yields to government by force.
This strikes me as deliberately obtuse. A Democrat living in Alabama has every reason to expect to live under laws made by Republican governors with a Republican-leaning state legislature and state Supreme Court. To the extent the laws they pass are in accordance with the Alabama and federal Constitution, they’re legitimate.
But judging from their presidential voting history over the last quarter-century, Alabama is roughly a 60-40 state. There’s no way to draw its seven Congressional Districts to exactly match that, as 4-3 would skew in the Democrats’ favor and 5-2 would skew Republican. The current map is indeed 5-2, owing to a court-imposed requirement to draw a second majority-minority district. Given the ruling from which Kagan dissented, we’re likely to see the state pass a 6-1 map. That’s grossly unfair but, notably, that was the result that prevailed from 2010-2022. Before that, the state typically had two Democrats and, indeed, had three for a single term pursuant to the 2008 election.
Where Willick and I disagree slightly with Kagan is how to factor race into this. Like Willick, I don’t think there’s any inherent right for the roughly 26.5% of Alabamians who are Black to have a Representative that looks like them. But I do think that the roughly 40% of Alabamians who are Democrats—including probably 90-odd percent of the Black population—to be represented in Congress.
The Supreme Court’s ruling involved how to draw legislative districts, but the most important elections for federal office these days are not subject to a gerrymandering frenzy. Senators are elected in statewide contests with fixed boundaries. So are presidents, for the most part — the electoral college is a winner-take-all contest in 48 states.
If Kagan is right that the minority party can be, in effect, disenfranchised in lopsided congressional districts, that is already true in more-consequential elections for the Senate and the presidency in deep-red and deep-blue states. Democrats in Alabama, and Republicans in Hawaii, for example, can’t expect their preferred presidential candidate to win their state’s electors in the foreseeable future.
Again, this seems deliberately obtuse. The whole point of Congressional Districts, at least as we’ve conceived them historically, is to represent local interests. “Cracking” localities to skew the outcome is undemocratic. Senators represent states, so electing them at large makes perfect sense. My objections to the Electoral College have been documented at length for the last two decades, so I won’t rehash them here.
There are several more paragraphs in the column, but it’s more of the same.
I have ben menaing to write about this issue specifically, and may yet. So, Hobby Horse Time (TM): all of this is trying to use an old, inadequate technology (single seat districts) to create a more modern outcome (representative elections) .
As a matter of democratic theory, all voters shoild count the same, but results should be determined by the vote itself. As we are being reminded daily these days: our system is all about them maps, so to speak.
The VRA’s attempt to a to stop white from diluting minority votes meant the awkward meachnical tinkering of lines on the map was the only way to fix it. It is trying to force an old
machine to do a new trick and hence the mess of it all.
@Steven L. Taylor: I still have a reflexive aversion to having Virginia’s 11 or Alabama’s 7 Congressional Districts allocated based on a proportional outcome of a statewide vote, as I cling to the notion that the districts should represent community and not political parties. But they’re not doing that now, anyway, so I’m warming to the idea.
Ah, so you do understand Willick’s schtick.
You still have a right to cast a vote, it just doesn’t matter. Isn’t that the definition of “electoral autocracy”?
@Steven L. Taylor:
Yeah, when I read that first quote about a Republican living in SF, my thought was, “This is why we need PR”
@James Joyner: So you’d be OK with expanding the House? I see there are proposals: The Real House act for 585 seats, the Equal Voices act for 689, and the Wyoming rule which would mean districts of about 600,000 people.
Personally I’d prefer recognizing it’s the 21st century, they can work remotely. Go for a thousand or more. They would, as you want, then represent communities and make it really hard to gerrymander. Set up regional Houses for occasional in-person sessions, maybe in New York, Chicago, Dallas, Denver, and San Francisco.
Willick’s framing is that everyone must accept the outcome of the legislative process, or consent of the governed yields to force. This echoes the implicit bargain Socrates accepts in the Crito.
But the Crito also contains an important escape clause, namely that the bargain only binds if the citizen retains the right to persuade.
Gerrymandering eliminates that right by design. And when race is the hidden mechanism, the bargain was never fairly offered to begin with.
Methinks Socrates would have stayed in his cell anyway, but he’d have recognized the difference.
@James Joyner: I just honestly come to think that “community representation” is a myth when we are talking about the national legislature. You and I have more in common in terms of what we want out of Congress (even with whatever differences we may have) than I do with a lot of members of my broader community.
And, further, local govt is better suited to that task.
@gVOR10:
I’m a white, male boomer from CA. By all political accounting, I should be maximally enfranchised, but I’m not. I’m disenfranchised, just as the Republican in SF and the Democrat in WY are, by the Murdochs, the Ellisons, Musk, Bezos, Trump, and most of his cabinet, etc.
Even before this new era of electoral autocracy we’ve entered, the US has been more properly seen as an oligarchy for decades. My right to cast a vote doesn’t mean squat, even when joined with a majority of my fellow citizens, when placed in opposition to the 1%ers who have captured most media and who can bankroll their preferred policies.
@Scott F.:
Yep. This is why we urgently need to move past white vs. non-white and shift to the 99% vs. the 1%. The oligarchs are spending hundreds of billions of dollars in an effort to destroy the economic power of everyone but themselves and institute a new serfdom. We’re fighting the last war, not the war we need to be fighting, the war in which Luigi Mangione is the new John Brown.
@gVOR10: I haven’t given a lot of thought to the mechanics, but definitely support significantly expanding them number of Representatives. If nothing else, it would make the Electoral College less skewed.
I am largely in agreement with James but would emphasize that when such a large percentage of blacks are democrats their votes dont count when gerrymandering by party. I agree with increasing the numbers in Congress. Would also add that in addition to this, which the author of the cited article ignores, that the GOP is also working pretty hard to keep people from voting whom they perceive as voting for democrats.
Steve
This really feels like The End of Reconstruction, Part 2.
About 150 years ago, as as part of settling the presidential election of 1876, the federal government agreed to pull the plug on post-Civil War racial progress. From that came over 70 years of apartheid, segregation, and Jim Crow. It wasn’t until the mid 1950s that we saw the beginnings of a modern civil rights movement.
Now, we’re not where we were in 1876, 1956 or 2026, but it’s damn clear that we’re nowhere near the post-racist America that Justices Alito and Roberts disingenuously insist we are.
@Michael Reynolds:
Temu John Brown. John McCain was tougher on insurance companies. We aren’t chattel. Unlike us, slaves were blameless. Abolitionists had few better options by Christmas 1859 than bloodshed.
We got options. But we chose an oligarch pedo over Hillary — once private insurance’s #1 enemy. Murdering execs ain’t righteous when we built up the billionares with our own weakness and stupidity. Candidates from Sen. Udall in 2014 to Sec. Clinton in 2016 were mocked for warning about healthcare and the Supreme Court. Obama and Slick Willy both entered office focused not on white v. nonwhite but on subsidized healthcare, and both times America responded with white supremacist backlash that constrained their final six years in office.
Americans are at war with our own id. There’s no external fix, not assassinations, not Jesus. People have to suffer till they wake up. Hate to see white farmers go bankrupt, Latino men get deported, black men lose representation, but oh well. If more had voted for the Climate Change Guy, the Hillarycare Lady, and their partisan allies instead of patriarchy, by now we wouldn’t need gas cars and UnitedHealthcare. And the billionares would’ve been taxed appropriately to build out the alternatives.
@Steven L. Taylor: I think it made more sense in the days when localities tended to share a way of living (coal mining, steel making, growing corn, auto manufacturing, etc.). There’s a lot less of that in a service economy.
@gVOR10: The cube root, which is a formula favored by many comparative political scientists, of 340 million is 698. The “Wyoming rule” would give us 566.
The population has more than doubled since the House was fixed at 435 in 1929; there were only 122 million then. This gave us one representative for every 280,459 citizens. To get that proportionally now we’d need 1,212—nearly triple what we have now.
@Michael Reynolds:
“War upon the billionaires” is unlikely to go well, given the history of social revolutionary wars.
Generally, either you end up with repressive oligarchy, or a crazy kakistocracy.
It’s fairly obvious that the “insolence of wealth” needs a slap; but the sensible solution will be a bit like that of the UK and Europe to the rule of the aristocracy: political reforms that reduce their power, and incremental tax measures to break up consolidated wealth.
Consituency boundaries are always politically contentious; but I’d seriously suggest the US might learn somthing from the operations of the UK Boundary Commission and the Local Boundary Commission.
This generally tries to set up constituencies in line with obvious geography: towns, counties, and subsets thereof.
Of course, the MASSIVE diffrence between UK and US is the problem of equitable racial representation.
How to work that out without opening the “mandering door” is tricky.
One route might be to move to alternative election modes rather than single member, single vote, “first past the post”.
But good luck with achieving consensus on THAT.
Perhaps the simplest reform would be to restrict party primary elections to paying members?
@Michael Reynolds: @DK: @JohnSF: Between the oligarchs, the political factions eating each other, the climate changes and the wars we really are in William Gibson’s jackpot.
@al Ameda:
Dem Substack is already calling this the John Crow Era, in honor of Roberts.
Chief Justice Crow and his klan do not believe in a post-racist colorblind society. They allowed Trump to discriminate against travelers based on race. They greenlighted racial profiling, allowing ICE to root probable cause suspicion in race.
They only pretend to be colorblind when it fits Republican goals. Because modern conservative jurisprudence is like modern conservative economics: irrational, contradictory, ahistorical bullshit. So naturally today’s rightwing justices are lying, phony, hyerpartisan hacks. It’s pro-MAGA Calvinball, just as Justice Jackson described.
@James Joyner:
Maybe. But even then, I am not so sure. For example, the coal miners across various localities had more in common in terms of political interests than they did with the coal miner owners with whom they shared a geographical location.
For that matter, the longshoreman in Boston had more in common with the coal miner and even the sharecropper than he did with a lot of neighbors. So forth, and so on.
I actually think that Tip O’Neil was wrong in many ways when he said, “All politics is local” (it would take more than a comment box to fully unpack that assertion).
I think the notion of localities having specific interests distinct from others is a bit of a myth. I think it is a story we have been told, and tell ourselves, to justify things like giving Wyoming the same power in the Senate as California (a maximalist example, I will allow).
@Mr. Prosser:
Ah, but at least we haven’t got people going to Japan for bio-technical “upgrades”.
Yet.
Part of the problem seems to be the insistence of some the the US is a “republic, not a democracy!”
Which is all fine and dandy for them, if that leverages the western/small state/rural vote.
But suppose a contrary leverage that favours others?
“NO! NOT LIKE THAT!”
Damfino how the US might sort out a sensible voting system.
Not really my problem.
But a tad less hypocrisy might go a long way.
What’s hiding behind much of this discussion is the uncontestable fact that black Americans have every reason to believe that only a black representative will truly represent their interests.
Is it true in every instance? No of course not.
But the idea of racially set-aside districts isn’t wrong, so long as the behavior of white Americans continue to demonstrate an inability or unwillingness to confront racism honestly.
@Steven L. Taylor:
Yes, that’s a fair point. Class interests tend to trump regional ones.
I think James gets this exactly reversed. Because partisan affiliation is choose-able and race isn’t. Because we have a history of minorities being disenfranchised through violence and government-enforced discrimination. Because we have a constitutional amendment to protect the rights of minorities to be able to vote.
What Kagan got right, but didn’t have the bluntness to say out loud, is that the fundamental organizing principal of the GOP for the past 5 – 7 decades is white Christian nationalism. Often a genteel version to be sure but its organizing principal is grouping based on white grievance and protection from “Them” – whomever “them” is at any particular time or issue. Given that, disentangling race from partisan identity is challenging if not impossible. Add in a corrupt SCOTIS majority that is willing to claim that an amendment that was drafted and adopted to protect minorities’ rights stands for the proposition that efforts to protect those rights are prohibited and we have the mess we have today.