How Much Racial Gerrymandering Is Too Much? Court Doesn't Know, But Wants Virginia To Think About It

Absent mountains or rivers or some other kinds of geological formations, drawing district lines is fundamentally arbitrary.

That's the Virginia 7th, right?

That’s the Virginia 7th, right?

I hate racial gerrymandering cases because they don’t fit neatly into a defensible, logically consistent, electoral philosophy. Racial gerrymandering is an unprincipled, highly practical, necessary grotesquerie of representative democracy.

Absent mountains or rivers or some other kinds of geological formations, drawing district lines is fundamentally arbitrary. I get that some people like geometric shapes, but just because your district looks like a square and mine looks like a half-eaten snow crab doesn’t make your district more “fair.” Once you draw the line, you are making a decision to exclude some people and include others, and we shouldn’t pretend to be able to do that at the political level without some knowledge of the racial breakdown of the voters.

Yet our rules say that race cannot be the “predominant” factor in drawing districts: which is kind of like saying “Don’t stare at the miniature disco ball in my eye socket!” Simply saying that race can’t be a predominant factor makes race a predominant factor in showing that race wasn’t a predominant factor.

And that’s before you get into all the outcome determinative questions about who is using racial gerrymanders for what purpose? Are you trying to ensure that the ten percent black population gets ten percent of the seats? That seems “good,” though I also don’t think “gets the seats they deserve” strikes the right tone. Are you trying to herd them all into a few districts, leaving arguably non-black politicians free to dominate their areas without even pretending to care about minority concerns? That seems “bad.”

My dad used to be a local politician. I’ve seen him draw districts. It’s gross and fascinating and important and heartbreaking. You could argue that racial gerrymandering is primarily responsible for our polarized politics. You could also argue that without racial gerrymandering, “race-neutral” Republicans could effectively disenfranchise even more black voters. “Sorry, but I can’t draw all these trapezoids without splitting your community eight different ways. Geometry isn’t racist.”

The Courts offer no useful guidance. The only Supreme Court case decided today was Bethune-Hill v. Virginia State Board of Elections. Anthony Kennedy delivered a 7-1 “victory” for Virginia state Democrats who argued that after the 2010 Census, Republicans tried to stuff all of the black people into a few districts. Which is the “bad” kind of racial gerrymandering.

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Oh, it’s not like Kennedy “agreed” with the Virginia Dems, or offered any guidance at all about what is racial predominance in district drawing. He said: “A conflict or inconsistency may be persuasive circumstantial evidence tending to show racial predomination, but there is no rule requiring challengers to present this kind of evidence in every case,” and then kicked the case back to the lower courts to sort it out.

Thanks, Tony.

The implication is that the Virginia method — which was to “protect” the districts of incumbent African-American State House representatives by flooding their districts with more black people, thus also keeping those black people out of Republican districts — was unconstitutionally predominated by racial concerns. But the ruling was simply that the lower courts had to answer the question of predominance, instead of dodging the issue.

You know, it’s the classic chicken-shit thing the Court does when it doesn’t want to actually SOLVE anything in a way that would make 49 other states say “wait, there are rules about this?”

And so we’ll continue to putter along like this. All the people with blue hats in this district, all the people with red hats in that district — oh, black people, please don’t forget to pick up your complimentary blue hats.

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It’s freaking stupid. And I can’t think of a better way. I hate these cases.

Supreme Court says Virginia redistricting must be reexamined for racial bias [Washington Post]
Bethune-Hill v. Virginia State Board of Elections [SCOTUS]


Elie Mystal is an editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.