So, if gerrymandering is alive and well, why have Dems come out in droves on social media  The paragon of virtue himself, Obama, posted that “The Court seems intent on abandoning its vital role in ensuring equal participation in our democracy.” “In our democracy”—where have I heard that tired canard before

    Hakeem Jeffries, never to be accused of civility or statesmanship, sent out a press release: “The corrupt conservative majority on the Supreme Court appointed by Donald Trump has taken a blowtorch to the Voting Rights Act. Why  The extremists need to cheat to win.” I guess that’s another Christmas card Justice Alito won’t be getting.

    The reason this is such a big deal is that Dems have long enjoyed a substantial gerrymandering advantage due to judicial interpretations of Section 2 of the Voting Rights Act (VRA), enacted in 1965. That section states that, “No voting qualification...practice, or procedure shall be imposed...to deny or abridge the right...to vote on account of race or color.”

    What seemed facially to be a mandate protecting the right to vote, in the hands of the Warren Court, morphed into restrictions on drawing congressional districts, despite Justice Thomas repeatedly reminding us over three decades, “§2 of the Voting Rights Act does not regulate districting at all.”

    Consequently, because blacks overwhelmingly vote Democrat, blue state gerrymanders never ran afoul of the VRA because they maximized the effect of their black voting bloc. Of course, this had nothing at all to do with their being black—it had everything to do with their voting Democrat.

    But in the red states, every time Republican legislators tried to draw a Republican partisan district, Democrat lawyers would flood the courts, arguing, “Republicans have marginalized the black vote in violation of the VRA.” The script was always the same, and the result usually was too: Democrats got another seat, and Republicans were denounced as white supremacists. Rich, coming from the party that viciously attacked Clarence Thomas—“a high-tech lynching for uppity blacks who in any way deign to think for themselves”—in a disgraceful attempt to keep him off the Court.

    In Callais, the Court set the bar so high for challenging a district based on race—as Alito wrote, an “extraordinarily onerous standard”—that it’s nearly impossible to win. Kagan, in her dissent, confirmed the same: “Today’s decision renders Section 2 all but a dead letter.” (More accurately, it turns the leftist interpretation of Section 2 into a dead letter.) Plaintiffs would have to prove that the district was drawn to exclude the choice of black voters after adjusting for the fact that “the most loyal Democrats happen to be black Democrats.”

    How big a win is this  It’s huge. Some estimates say Callais will result in Republicans picking up as many as 19 seats—that is, if Republicans don’t blow it, as they seem to always find a way to do. But as great as this potentially is, think how catastrophic this has been for conservatives over the past half-century. We never should have had to suffer a Nancy Pelosi gavel.

    But no matter which side you are on, if you are honest, the brazen political mendacity of gerrymandering is shocking. The audacity to pass off a Rorschach test as a congressional district would make even Machiavelli blush.

    Both sides do it. Of the states with more than one congressional seat, more than a third send only one party’s delegation to the House. Somewhat surprisingly, Republicans lead Democrats 8 to 7. Democrats, however, excel in the bigger states. In California and Illinois, for example, even though roughly 40% of voters backed Trump, Republicans won fewer than 20% of House seats.

    For a century and a half, this was all fair play. The first challenge came in 1946’s Colgrove v. Green—which, unsurprisingly, originated in Illinois—where the Justices, recognizing the Constitution is completely silent on the issue, stayed in their lane: “Courts ought not to enter this political thicket. The remedy for unfairness in districting is to secure State legislatures that will apportion properly, or to invoke the ample powers of Congress.” (Emphasis added.)

    However, for the Warren Court, entering the political thicket was like an addict entering an opium den. In Baker v. Carr (1962), the Court opened Pandora’s Box by overturning Colgrove to rule that gerrymandering is justiciable. Justice Frankfurter, who wrote the Colgrove decision, dissented, writing that the ruling was “a massive repudiation of the experience of our whole past in asserting destructively novel judicial power.”

    He believed the brazen politicization of the Court would undermine its credibility—and he was right:

    The Court’s authority—possessed of neither the purse nor the sword—ultimately rests on sustained public confidence in its moral sanction. Such feeling must be nourished by the Court’s complete detachment, in fact and in appearance, from political entanglements and by abstention from injecting itself into the clash of political forces in political settlements.

    For the next half-century, the Court’s gerrymandering jurisprudence was comical in its inconsistency. Dozens of cases appeared before the Court, and whether a district was constitutional or not was a roll of the dice.

    Most infamous was North Carolina’s 12th District, which by all rights should have been drawn to include the Court itself, having appeared there 5 times since 1993, a fact that was not lost on the Justices: “We now look west to District 12, making its fifth(!) appearance before this Court.” (Exclamation point in the original.)

    Finally, in exhaustion, the Court, in Rucho v Common Cause (2019), ruled that gerrymandering, at least for political purposes, was not “justiciable.” Gerrymandering on race remained an open question until this week’s decision in Callais.

    For all practicable purposes, Callais ends this egregious practice, although it would have been far better had the Court embraced Justice Thomas’s unequivocal view that laws under which “blacks were drawn into black districts and given black representatives” are “repugnant to any nation that strives for the ideal of a color-blind Constitution.”

    Even as we celebrate this victory in Callais, gerrymandering itself remains an affront. The Court cannot and should not remedy it, but reasonable men—if there are any left—can and should. The House was meant to represent the “great body of the people,” not to empower 51 percent to silence the other 49.

    We should do better, but it certainly won’t be easy—not only for lack of will, but for lack of an obvious solution. I offer two, neither perfect, but both surely improvements over the current train wreck.

    First, require districts to be drawn to have roughly equal populations using only horizontal and vertical lines in a number not to exceed the number of districts. Four districts, four lines. I doubt even the most diabolical partisan—and we have many—could make mischief with that.

    Or second, allocate seats in proportion to party registration. If 40% of registered voters are Republicans, Republicans get 40% of the seats.

    Today we celebrate. This will be a fight for another day.

    Image by Matt Popovich.

    Huck Davenport is a pseudonym.