After the Supreme Court’s six Republican-appointed justices effectively dismantled a key part of the Voting Rights Act on Wednesday, attention has turned to how Republican legislatures may dismantle districts that help minority voters elect their candidate of choice and replace those districts with Republican gerrymanders.
But as bad as the redistricting prospects are for minority voters in Republican-run states after Louisiana v. Callais — and they are very bad — it’s worth considering how Democratic-run states too will have an incentive to dismantle some of these districts. The battle over whether to maximize the number of Democratic seats or provide effective minority representation in Congress and other legislative bodies could threaten the Democratic Party’s internal cohesion and long-term prospects.
Democrats who represent fewer minorities are less likely to champion the interests of minority communities than minority-preferred candidates.
To understand how clashes may emerge, begin with the fact that Black voters are far and away the most reliable source of Democratic support — in some places, Democrats win 90% of Black voters. Some other minority groups consistently vote Democratic as well, but none by such margins.
Consider too that the Supreme Court, in Rucho v. Common Cause (2019) and subsequent cases, has given the green light to partisan gerrymandering. In Rucho, the court said that this may be unconstitutional but that federal courts were not well equipped to police it and had to stay out. Since that case, the court has actually warmed to partisan gerrymandering. By the time of Callais, the court had blessed states using partisan gerrymandering as a defense against a claim of discrimination against minority voters. It’s all about party, not race, the argument goes — ignoring the substantial overlap between race and party, especially in the South.
The high court’s go-ahead for partisan gerrymandering led President Donald Trump to push Texas to engage in a mid-decade redistricting to squeeze out more Republican seats. Soon Florida, now unconstrained by the limits of the Voting Rights Act, will follow suit. Democrats have responded in California and Virginia, where voters approved Democratic gerrymanders via referenda (though the Virginia gerrymander may yet be stopped by the state’s supreme court).
After the Virginia referendum, House Minority Leader Hakeem Jeffries, D-N.Y., characterized the party’s redistricting efforts as “a state of maximum warfare, everywhere, all the time.” He was echoing a statement that The New York Times attributed to a Trump White House official, but if Democrats truly plan to engage in “maximum warfare,” they may be tempted to break up districts that complied with the pre-Callais understanding of the VRA. Spreading these reliable minority Democratic voters into a few congressional districts, rather than concentrating them into one, could help Democrats capture more seats in Congress. (The same strategy could be applied to state and local elections.)
That approach, however, would likely reduce minority representation in the House. Some minority-preferred representatives that previously represented VRA-compliant districts could still get re-elected in newer, whiter districts thanks to the advantages of incumbency. But in the long run, these bleached districts are far more likely to elect white-preferred Democratic candidates than minority-preferred Democratic candidates. This would diminish minority power in Congress and state legislatures, since both parties have the incentive to move minority voters in and out of districts to serve their political purposes.
If appeal to higher values of fair representation does not move Democrats, self-interest might.
Some Democrats may say this “cracking” of minority districts benefits all Democrats, including minority voters, because electing more Democrats gives Democrats more power to help minority voters and others. But Democrats who represent fewer minorities are less likely to champion the interests of minority communities than minority-preferred candidates. And the pressure that these minority-preferred candidates can bring to bear in Congress (such as through the Congressional Black Caucus) is crucial to encouraging the Democratic Party to be responsive to the needs of minority voters.
If appeal to higher values of fair representation does not move Democrats, self-interest might. A strategy of cracking could be self-defeating for Democrats. With diluted representation in Congress and other legislative bodies, Black voters will have less incentive to turn out to vote. That would decrease Democrats’ chances of winning election not just for these districts, but for statewide and federal races as well.
Democrats should never take for granted the continued support of large majorities of minority voters. If maximum warfare means dismantling minority opportunity districts, Democrats act at their own peril.
Richard L. Hasen
Richard L. Hasen is professor at UCLA School of Law, where he directs its Safeguarding Democracy Project.