Horowitz: Kavanaugh & Roberts open door for Dem racial gerrymandering to win back the house

The only thing worse than legislative gerrymandering is judicial gerrymandering, especially from the federal courts. We thought we were finally done with federal courts using the fact that blacks vote predominantly Democrat — a fact which Democrats can then use to maximize the number of seats they get. Instead, Kavanaugh and Roberts joined the three Democratic appointees in codifying Democratic racial preferences as mandates on states to maximize the Democratic advantage in Alabama. This will pave the road to overturn election maps in many other states, clearing an easier path for a Democrat takeover of Congress.

Writing for the majority in Allen v. Milligan, Chief Justice Roberts affirmed a lower Alabama federal court’s ruling that Alabama’s congressional maps violated Section 2 of the Voting Rights Act, which bans discrimination in voting. The ruling essentially opens the floodgates for Democrats to utilize their advantage with black voters to maximize the number of Democratic seats they pick up. Roberts agreed that the 6-1 GOP map racially discriminated against blacks by creating only one majority-minority district when computer models show it’s possible to create more. Roberts acknowledged concerns that those rulings “may impermissibly elevate race in the allocation of political power within the States” but turned to his favorite excuse of precedent for siding with the left.

“Our opinion today does not diminish or disregard these concerns,” wrote Roberts regarding race becoming the predominant factor in map-drawing. “It simply holds that a faithful application of our precedents and a fair reading of the record before us do not bear them out here.”

We thought we finally ended the court meddling in redistricting in the North Carolina case of 2019. In Rucho v. Common Cause, Roberts himself ruled (with Kavanaugh in agreement) that questions of political gerrymandering were non-justiciable in the federal courts because "partisan gerrymandering claims present political questions beyond the reach of the federal courts."

What Roberts and Kavanaugh are now doing with the Milligan ruling is creating an exception for race to the political question doctrine. So as long as Democrats think that there is a way they can squeeze out more seats with black voters, they can tie up every map in a closely divided country in the federal courts indefinitely.

The reality is that both political parties are guilty of gerrymandering in their favor when they seize control of state government. That is part of politics and the spoils of war. While legislative gerrymanders — when taken to an extreme and when they disrespect natural geographic and demographic boundaries — are insidious, they are not nearly as bad as judicial gerrymanders. Federal judges are unelected and serve life-tenures. There is no recourse when they subjectively redraw maps. Moreover, there is no uniform standard of what constitutes an unconstitutional gerrymander.

The reason it is the Democrats who actually gerrymander more in order to gain an advantage is because they have naturally gerrymandered themselves into oblivion in many states due to their narrow ideological appeal to a few demographics that are geographically isolated. Sure, Republicans modestly gerrymandered to gain an even better advantage, but because Democrats have little appeal outside of urban areas or specific counties in the south, they don’t naturally utilize the number of seats in accordance with the proportion of people who vote Democrat statewide.

It downright takes an egregious Democratic gerrymander to remain competitive in state legislatures or the majority of federal House seats because they must spread around urban areas in rural districts. If they don’t like it, maybe they should change their ideology. In the case of Alabama, every seat has always been conservative except for the majority-black district (district 7) in the west-central part of the state, which has more or less occupied the same area for decades.

Either way, this is a political issue, not a legal argument for the courts, and certainly not for federal court.

As Justice Thomas warned in his dissent, a normal reading of the Constitution and the VRA “would not require the federal judiciary to decide the correct racial apportionment of Alabama’s congressional seats.” Reading the VRA to mandate a specific proportional statewide representation of black members (which essentially means benefiting one party) “is nothing more than a racial entitlement to roughly proportional control of elective offices .... wherever different racial groups consistently prefer different candidates.”

Regarding this proportionality mandate, Thomas asserted, “Section 2 demands no such thing, and, if it did, the Constitution would not permit it.”

Thomas believes that the entire precedent set by Gingles in 1986 — that somehow Section 2 of the VRA can weaponize challenges against maps drawn to the advantage of the party in power — is bunk. He noted that the only thing prohibited under that act is a map that “impose[s] or applie[s]” any “voting qualification or prerequisite to voting or standard, practice, or procedure” that effects “a denial or abridgement of the[ir] right ... to vote on account of race or color.” The only other way to violate that section is by somehow drawing maps that create districts that “are not equally open to participation” by black Alabamians. So long as that is not going on, there is no entitlement to Democratic racial maximization of the maps.

Clearly, Roberts and Kavanaugh in his concurrence understand this problem, but they feel so compelled “to fossilize all of the worst aspects of our long-deplorable vote-dilution jurisprudence,” as Thomas chided. This is very disturbing and is cause for concern that these two justices will feel a need to compensate for the Dobbs opinion, which overturned Roe v. Wade, by doubling down on other bad opinions that the new conservative majority should easily overturn.

It is particularly egregious how Roberts is honoring a very strict adherence to bad precedent, mandating racial discrimination into the VRA, because he once asserted how important and easy it is to end discrimination. "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race," famously wrote the Chief Justice in Parents Involved v. Seattle (2007).

In general, Barrett and especially Kavanaugh have disappointed us on a number of cases. Yes, Trump was able to move the court to the right just by a stroke of lucky retirements and deaths under his watch, especially the death of Ruth Bader Ginsburg. But make no mistake, we do not have six versions of Clarence Thomas on the court. With Thomas himself, and possibly Alito, slated to retire under the next Republican president, there is a greater need for the presidential nominees to give us confidence they understand the difference between a Kavanaugh and a Thomas. And that requires judicial picks up and down the federal bench who are undaunted by the two scarecrows of the left: judicial precedent and racial politics dressed up as jurisprudence.