Anatomy of the Murder of the Voting Rights Act

During the oral argument in Louisiana v. Callais, Justice Alito repeatedly described the Court's decision in Rucho v. Common Cause as holding that political gerrymandering is constitutionally permissible. For example, at page 12 of the oral argument transcript, he asked this question: "if incumbent protection is a permissible districting criteri[on], then, under Rucho, isn't seeking partisan advantage also an objective that a legislature may legitimately seek?" The "if" there isn't really conditional. It was clear during the argument that Justice Alito thought that both incumbent protection and seeking partisan advantage are legitimate districting goals pursuant to Rucho.

However, Rucho did not hold that political gerrymandering, incumbent protection, seeking partisan advantage, or anything else is constitutionally permissible. It held that challenges to political gerrymandering present nonjusticiable political questions and are thus committed to state legislatures in the first instance or Congress if it chooses to exercise its power under Article I, Section 4 to "make or alter" state laws concerning electoral districts. 

I criticized Justice Alito's conflation of nonjusticiability with constitutionality after the Callais oral argument. He doubled down on that conflation in his opinion in Callais, now speaking for a six-Justice majority. To be sure, he started off well enough. He wrote that Rucho "held that claims of partisan gerrymandering are not justiciable in federal court." So far, so good. But then immediately, Justice Alito drew an unwarranted conclusion when he added that "[t]he upshot of Rucho was that, as far as federal law is concerned, a state legislature may use partisan advantage as a factor in redistricting."

The key bit of legerdemain there is the word "may," which, in the quoted sentence, means "legally may." But that's not right. To say that a state legislature can get away with an unconstitutional gerrymander because the courts won't stop it is not to say that when it does so it has acted legally. There's a difference between nonjusticiability and legality.

To see what that difference is, consider another nonjusticiable political question. In Nixon v. United States, the Court held that it would not entertain a challenge to a Senate judgment of impeachment. What counts as a Senate trial, the Court said, is up to the Senate. It's a fair inference from the Court's Nixon opinion that other kinds of questions involving impeachment are also nonjusticiable.

Suppose that the House impeached and the Senate removed a president based on the fact that the president wore a tan suit during a press conference. Nixon means that the president would have no recourse. However, that is not because wearing a tan suit qualifies as an impeachable offense. It's because the Senate would have had the last word on this particular question and would have given an answer that is final despite being wrong.

Admittedly, there is a certain legal realist perspective that rejects the distinction I am drawing here. It is best encapsulated by what Oliver Wendell Holmes, Jr. wrote in The Path of the Law: "The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law." But even if that's a useful maxim for advising amoral clients, it's not a true metaphysical proposition.

Consider another analogy. The Supreme Court has the final say on constitutionality (absent the very unlikely possibility of a constitutional amendment). We nonetheless speak of Supreme Court decisions as being "wrong" or "mistaken," and we are not speaking nonsense when we do. Even the Supreme Court itself often speaks this way when it overrules its prior decisions or says that Plessy [v. Ferguson] was wrong the day it was decided."

To be sure, in the tan suit case, one might think the dispute is entirely theoretical. Whether we say that the Senate was wrong but final or we say that there was no law because law is only what the courts enforce (as a then-college-student and a law professor once argued with respect to the tan suit issue) doesn't make a practical difference. However, that won't always be true. And it isn't true with respect to the interaction between political gerrymandering and the Voting Rights Act.

The main reason why the Rucho Court found political gerrymandering claims nonjusticiable was its conclusion that there were no "judicially discoverable and manageable standards" for saying how much consideration of politics in districting is too much. I disagreed with Rucho, but accepting it doesn't necessitate validating all uses of politics in districting. In particular, it doesn't validate subordinating racial equality to political gerrymandering. Yet that's what the Court did in Callais when it said that plaintiffs bringing a VRA challenge must show that the state rejected options for creating majority-minority districts if those options failed to satisfy the state's political goals, "including partisan advantage."

That requirement is doubly problematic. First, it doesn't follow from Rucho. One need not identify any standard for measuring how much politics is "too much" in order to say that a VRA plaintiff complaining that minority voters have had their voting strength undercut by race must present a map satisfying traditional distracting criteria such as compactness, contiguity, and preservation of political units but need not include in that map the state's political goals. One can assess whether VRA plaintiffs have satisfied their burden without taking account of politics at all. Thus, there's no occasion for a court to judge whether there was "too much" politics and therefore no contradiction of Rucho.

Second, Justice Alito and the Callais Court treat racially polarized voting as a kind of exogenous fact of nature, when it is quite clearly an endogenous feature of the racism of the contemporary Republican Party. In places where the VRA has proved most necessary, the modern Republican Party gained ascendancy over the last couple of generations as the fulfillment of President Nixon's Southern Strategy. Donald Trump ratcheted that strategy up to 11. That's not to say that the Democratic Party represents the interests of Black voters especially well or that the Republican Party represents the interests of (disproportionately male, older, and poorly educated) white voters especially well. It is to say that, given the Republican Party's appeal for white racists, it's more than a bit rich for Justice Alito and the rest of the conservatives to deny a VRA remedy because plaintiffs cannot produce a map containing compact, continuous majority-minority districts that also maximize the partisan advantage for Republicans. Asking them to do so asks the impossible and rewards the contemporary Republican Party for fostering and then exploiting racial polarized voting.