Last weekend, the New York Times editorial board published an opinion essay titled “How to End Gerrymandering” (gift link). I read it with some reluctance. There is only one answer to the question it poses, and I knew the NYT would not get it.
Turns out I was right.
The piece begins by noting the impressive rise in the number of Black House members, from five in 1965 to sixty today. This dramatic change was made possible by the Voting Rights Act (VRA), the most important piece of legislation in American history. It ended the sordid, bloody history of Black disenfranchisement in the United States.
The key to its success was the so-called “preclearance” mechanism, which required states and counties with a history of racial discrimination to get federal approval of all new voting rules.
In addition to ensuring that African Americans could vote, the VRA prohibited states from diluting Black influence through racially discriminatory maps.
But as the Times laments, all of this progress is “on the verge of being reversed.” That is because Republicans are again drawing maps that reduce Black voting power. According to the editorial board, the solution is for Congress to pass a law restricting partisan gerrymandering.
Wait a minute. Don’t we already have such a law—the VRA? Last I checked, Congress hasn’t repealed it. So why the need for a new law, you might ask?
The reason, as the NYT acknowledges, is “a Supreme Court that has weakened the Voting Rights Act.”
Do you see the problem in the NYT’s reasoning? If the Court has already hollowed out one law protecting voters from discriminatory maps, why would it treat a new one any differently?
Here we arrive at the crux of the matter. In the Court’s view, the Republicans gerrymandering their way to perpetual rule are not violating the VRA, because they are discriminating by party, not race. Sure, Black-majority counties are being shuffled in and out of districts to dilute their influence—but not because they’re Black. It’s because they vote Democratic. The VRA prohibits discrimination on the basis of race, the Court maintains, but nothing in the law says you can’t discriminate on the basis of party.
In truth, this is a distinction without a difference. There is a reason Republican lawmakers are so petrified of Democratic election victories. It is the same reason the vast majority of African Americans vote Democratic: the Democrats are the only party that might conceivably represent Black people’s interests. Discriminating against Democratic voters is thus a way of discriminating against Black voters—and vice versa.
Still, the NYT suggests that we take the Court at its word. The justices told us the law prohibits discrimination on racial, not partisan, grounds. So all we have to do is pass another law banning partisan discrimination, and the problem is solved. Checkmate, John Roberts!
The assumption here is that the Roberts majority is acting in good faith: that as long as we enact this law against partisan gerrymandering, the Court won’t turn around and concoct some other excuse to strike it down.
This is a delusion, I’d argue—one a quick review of the Court’s recent election-law rulings puts to rest.
To see why, consider the VRA’s track record. African Americans began to hold office at an unprecedented rate, even if their numbers fell short of their overall share of the population. Enfranchisement likewise enabled them to secure more state resources—though again, their share remained unequal.
In the decades following the law’s passage, Congress reauthorized it numerous times, typically by lopsided majorities. The act also survived a series of challenges at the Supreme Court.
That was before Roberts assumed the chief justiceship. During his tenure, the Court has gutted the law beyond recognition and on pretexts that are plainly ludicrous.
Roberts has long had it in for the VRA. While serving in the Reagan administration, he undertook a vigorous but futile campaign to undermine the law. Once he arrived at the Supreme Court, he would finally put his ideas into practice.
He struck his first major blow in Shelby County v. Holder (2013), which eliminated the VRA’s preclearance mechanism. No longer would certain states and counties have to get their voting rules approved by the federal government.
Since U.S. constitutional law contained no principle that barred such a system, Roberts reached for an invented one. Preclearance as it then stood, he argued, violated the “fundamental principle of equal sovereignty” of the states.
Richard Posner, a former Reagan-appointed appellate judge and the most-cited legal scholar of the twentieth century, had this to say about Roberts’s “equal sovereignty” rationale: “This is a principle of constitutional law of which I had never heard—for the excellent reason that … there is no such principle.”
What would lead Roberts to invoke a nonexistent constitutional principle? There are only two possible explanations. One is that his Harvard legal training and esteemed judicial career left him unfamiliar with the basics of constitutional law. The other is that he’s full of shit.
I leave it to you to decide.
White Lies
While Shelby County dealt with preclearance, Rucho v. Common Cause (2019) considered gerrymandering itself. Roberts, writing for a 5–4 majority, held that federal courts could stop racial gerrymanders but not partisan ones.
We’ve already seen, however, that the distinction is impossible to apply in practice. As a result, Rucho effectively enabled states to discriminate against Black people so long as they claimed to be targeting Democrats.
But at least Rucho gives us a rule to work with: the federal courts can’t touch partisan gerrymanders but can strike down racial ones.
So when the NAACP successfully challenged a blatantly racist South Carolina map in federal court, the Supreme Court upheld the decision, right?
Wrong.
Alexander v. South Carolina NAACP (2024) involved a district that a federal district court found to have been surgically crafted to dilute Black votes. Black residents were moved out of the district en masse while many white-majority precincts were kept in. In every version of the map, moreover, the Black voting-age population share suspiciously hovered around 17 percent—evidence that the mapmakers operated with that target in mind, the district court concluded.
That was not all. As Elie Mystal, the justice correspondent for the Nation, pointed out, “the South Carolina mapmakers literally had racial demographic data on their computer screens while they were drawing their maps.” Following oral argument, Mystal noted:
This case is basically a test of whether Roberts’s Rucho decision still allows for racist gerrymanders to be stopped, or whether the most obvious and bad faith racist gerrymanders can simply be called “political” while the Roberts court turns a blind eye.
Predictably, Roberts failed the test. Roberts showed up to oral arguments with his head buried so deep in the sand that Caterpillar probably needed to send an excavator over to dig him out and reunite him with his family.
Justice Samuel Alito, writing for the majority, asserted that the abundant evidence of racial intent was not, in fact, evidence of racial intent. He acknowledged that the chief mapmaker “had taken racial demographics into account in drawing maps in the past and was aware of the racial makeup of the various districts he created.” But, Alito continued, there is “nothing nefarious about his awareness.”
Alito’s reasoning invites the question of what, exactly, he would consider sufficient evidence of discriminatory intent. By his logic, nothing short of Republican officials yelling “I want to stop Black people from voting” would suffice.
If the Court already hollowed out one law protecting voters from discriminatory maps, why would it treat a new one any differently?
Racist lawmakers rarely announce their motives. Instead, they devise rules that appear racially neutral yet still achieve the goal of disenfranchising racial minorities.
That’s exactly what the Jim Crow states did—and what the VRA was designed to stop. As anyone who paid attention in high school history could explain, Southern states did not draft laws explicitly disallowing Black voting; they instead established literacy tests, poll taxes, and other such devices, then applied them in ways designed to exclude African Americans.
But as far as Roberts and the other Republican justices are concerned, there is no way to prove that a gerrymander is racist unless the law or its drafters declare such a purpose.
Most of you can probably see the absurdity of this view. But Roberts and his fellow conservatives would like us to believe that they don’t see it.
So I ask again: ignorant or full of shit? Pick one.
Alito’s stance in Alexander is manifestly stupid. Yet he is not a stupid person. As Alexander, Rucho, and Shelby County demonstrate, he and the other conservative justices are making things up as they go. They invent constitutional principles that don’t exist. They concoct meaningless distinctions. They wave away facts that don’t fit their preferred narratives.
They did all these things as they dismantled the Voting Rights Act. Why wouldn’t they do the same to the anti-gerrymandering law proposed by the NYT?
To believe that the Roberts majority would let this law stand is to accept the justices’ facile rationales at face value instead of recognizing them for what they are: part of a deliberate and lawless campaign to disenfranchise racial minorities.
Once we acknowledge that the Republican justices are acting in bad faith, it becomes obvious that the problem cannot be solved with new and better legislation. Only one thing can fix it: expanding the Supreme Court.