Outside the Beltway

Gerrymandering and Disenfranchisement

Race and partisanship collide once again.

James Joyner · Sunday, May 3, 2026 · 7 comments

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.