Racial Redistricting, the GOP Court, and History for Me but not for Thee
The Republicans on the Roberts Court love to lecture us on the importance of history to constitutional interpretation. But as almost everyone knows, the conservative justices use history only when it suits their purposes and ignores it or distorts it when history cuts against GOP goals and priorities. When it comes to voting rights and redistricting to ensure partisan advantage, the Court acts like our blatantly racist past that prevented racial minorities from being elected to state and federal legislatures never happened. History for me but not for thee.
All of which brings us to Thursday's two-page "opinion" in Abbott v. League of United Latin American Citizens. overruling a 160-page lower court decision written by a Trump nominated judge after a nine-day evidentiary hearing finding that Texas illegally used race to give the GOP maximum partisan advantage in the state. Texas decided to redistrict in advance of the important 2026 mid-terms only after President Trump urged it to do so. There is a lot to criticize in the two-page opinion but this post focuses primarily on how the Supreme Court's failure to appreciate our racist past has played a central role in our current redistricting hellscape and illuminates the supreme hypocrisy of our nation's highest Court.
The rules regulating the use of racial criteria in redistricting are as follows:
1) Federal courts have the authority to strike down maps that illegally use racial criteria in redistricting, but have no power to review maps on the basis that they were drawn for maximum partisan advantage;
2) It is unconstitutional for map makers to use racial criterial in redistricting if doing so was the "predominant intent" of the intended map but;
3) Plaintiffs challenging the use of racial criteria in a redistricting case in which the state claims the map was drawn to gain partisan advantage must overcome a strong presumption the legislature acted in "good faith."
The lower court in Abbott found that the newly drawn Texas map was unconstitutional because as a factual matter the legislature's predominant intent was race-based and thus its map was a racial gerrymander that failed strict scrutiny. The majority in Abbott said it did not have to defer to the factual finding because: 1) the lower court applied the wrong legal standard by not requiring the plaintiffs to show that an alternate map could provide the same partisan advantage without using racial criteria; and 2) it was too close to the election to make changes to the map. Justice Kagan destroyed both of these arguments in her stinging and persuasive dissent.
There is deep, racist rot at the center of this entire landscape of redistricting rules. The rot is that mapmakers using racial criteria to draw favorable maps for white voters and mapmakers using racial criteria to draw more favorable maps for traditionally discriminated against minorities represent the same constitutional evil. This fundamental tenet that the Court made up is not based on text or history but simply the Court's failure to appreciate the current effects of centuries of race discrimination across our society generally and with regard to free and fair elections specifically.
The 15th Amendment prohibits government from denying anyone the right to vote on the basis of race, and the 14th Amendment prohibits states from denying any person the "equal protection of the laws." But from the late 19th century until the mid-1960's, the Court interpreted neither provision to prevent the states from redistricting in ways that minimized the votes of racial minorities by favoring rural counties over urban ones and by using literacy tests, character tests, and actual violence to stop POC from voting.
That undisputed history, acknowledged by even Chief Justice Roberts in the infamous Shelby County decision, led to the passage of the Voting Rights Act in 1965, which requires judicial and legislative attention to the racial consequences of voting maps and election rules that hurt minority voters. The Roberts Court, of course, gutted the crucially important pre-clearence part of the Act in the aforesaid Shelby County case, and this term is likely to rule that any use of race for race's sake as required by the Voting Rights Act is also unconstitutional.
The current redistricting rules articulated by the Supreme Court are, to put it mildly, absurd, in a country where it is undisputed that: 1) racial criteria were permitted by the Court to keep racial minorities from voting for centuries; 2) state legislatures are today, of course, majority white; and 3) racial demographics and party affiliation are strongly connected. That securing partisan advantage as a stated legislative goal makes it extremely difficult for plaintiffs to show that race was the "predominant intent" of a redistricting scheme is in practice the 21st century equivalent of non-one-person-one vote maps and literacy tests.
The reality is that white mapmakers trying to increase minority participation in our government are doing something completely different than white mapmakers trying to increase white domination of our government given our long history of overt and Court-sanctioned racial discrimination. As Justice Stevens once told the New York Times, the notion that judges should treat all racial classifications the same “doesn’t make any sense.” Justice Stevens also wrote the following in an affirmative action case:
The consistency that the Court espouses would disregard the difference between a “No Trespassing” sign and a welcome mat…. It would equate a law that made black citizens ineligible for military service with a program aimed at recruiting black soldiers. An attempt by the majority to exclude members of a minority race from a regulated market is fundamentally different from a subsidy that enables a relatively small group of newcomers to enter that market. An interest in “consistency” does not justify treating differences as though they were similarities.
Whether Justice Stevens is right that as a policy matter our government should not be color-blind after centuries of legal racial discrimination is not the point. Both the 14th and 15th Amendments were enacted to ensure that racial minorities were treated equally under the law and in elections, but neither Amendment was used by the Court to fulfill that goal for almost a century, with devastating effects on those minorities. As a constitutional matter, there is no merit to the Court's requirement of color-blindness when it comes to legislative ends. Neither the text nor the text's original meaning support putting handcuffs on the ability of white legislatures to make up for past sins.
Because of our sordid racial history, the Reconstruction Amendments should be interpreted by the Court to allow white dominated legislatures to use racial criteria to help POC get elected to white dominated legislatures but be much more skeptical when white legislatures enhance the chances of white candidates being elected. As Justice Blackmun once said (both Stevens and Blackmun were nominated by Republican Presidents) in an affirmative action case: "In order to get beyond racism, we must first take account of race. There is no other way. And in order to treat some persons equally, we must treat them differently. We cannot -- we dare not -- let the Equal Protection Clause perpetuate racial supremacy." The same is true for the 15th Amendment.
And yet, despite the Roberts Court's insistence on color-blindness as a constitutional barrier towards moving to a a less racially discriminatory society, it is allowing Texas to hide the use of race behind the goal of partisan advantage to further white domination of its legislature. Some may respond that the Court first articulated a version of that rule in a case where a North Carolina map that was drawn to increase Black representation in Congress was upheld on the basis that the map was drawn more for partisan than racial reasons. But the context of that case was a state that sent no Black people to Congress from 1900-1990. None. Changing maps to elicit more minority representation is not the same thing as changing maps to further reduce pitiful minority representation. Treating them the same, as Justice Stevens said, simply "makes no sense."
Chief Justice Roberts once infamously said that the "way to stop discrimination on the basis of race is to stop discriminating on the basis of race." As Mike said on Bluesky on Thursday (with a slight edit from this author), apparently the new Roberts Court rule is that the "way to discriminate based on race in electoral redistricting is to stop district courts from stopping discrimination based on race in electoral redistricting."
True, but no one will be surprised when the GOP Supreme Court stops California from using race in exactly the same way as Texas did but with the result that Democrats gain partisan advantage. Don't expect our sordid history of racial discrimination to be mentioned in that decision either.
-- Eric Segall