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Notes -
Did The Motte talk about the latest set of oral arguments at SCOTUS for Louisiana vs. Callais? The case is a continuation of the NAACP LDF's efforts to turn this big red blob of a congressional district that Louisiana created into a slightly longer contiguous red blob, but with new lines and a new congressional district. If SCOTUS was to affirm the district court's ruling, then the LDF will have won an additional majority black district in a state that is 33% black. For the sake of context, numbers I find put the state at 30% black in 1990, so this is a relatively stable share.
The decision to upend Louisiana's proposed 2022 map, it was be argued, is what Federal law requires. Section 2 of the VRA has been amended, extended, and litigated on several occasions since the 1965. In 1986, SCOTUS described the Gingles test to determine whether a majority-minority district should be created. I'm sure there are pages of nuance before and betwixt each:
According to the NAACP, when the LDF received their favorable decision against the state in 2024, a group of "self-described 'non-African American [Louisiana] voters'" challenged this on the basis of 14th and 15th amendment issues. SCOTUS first heard the case in March of this year, but decided to schedule reargument (somewhat uncommon) which occurred last week. (PDF) The nature of the questions now in play led to a flurry of articles concerned that "justices could upend decades of court decisions holding that states may — and sometimes must — use race-conscious redistricting to protect the voting power of minorities." Other outlets like The Federalist take a Buzzfeed-esque dunk list approach to reporting the case.
My understanding is nobody knows just what kind of scope in ruling we should expect, but that the questions to follow suggest something broader than a Yes/No to a district map. There are all kinds of tidbits worth debating. There's my Big Questions which SCOTUS will not answer like: by how much does the fact my US representative is a black man, whose race I do not share, mean he doesn't represent me? It seems every minority whose vote doesn't represent their A) race and B) party can be considered un(der)represented, even if Congress hasn't provided a statute or adopted a different system of representation to resolve this.
At the time the VRA was written the demographics were very different to today's. Kavanaugh asked Nelson, who was arguing for the LDF, whether there should be a time limit on court ordered, law enforced racial voting maps. He receives a frank reply that is basically "lol, never." It's statute it doesn't just go away unless Congress changes it. That makes sense, but seems to force the hand of a potential majority that has questions on how this all works out.
Justice Jackson covers the more popular argument I see in the wild. She says,
To her credit, she only mentions the word disparity once in arguments. This is the argument that until blacks disperse themselves geographically as other minorities have, or achieve similar outcomes to something, then states are required to continue to grant them majority-minority districts.
If you transported my liberal sensibilities to 1965 you'd probably convince me with ease that this little unconstitutional carve out was justified and workable. Not so much these days. I don't look forward to a total upending of the VRA house of cards. Sounds messy, but this is the consequence of previous pragmatisms of SCOTUS. The pragmatist leverage left, for me, is the fact gerrymandering is cynical by its nature. If you leave it to states without limitation, then they will discriminate by race for the very reason Justice Jackson says: blacks vote Democrat reliably enough to target. Which means we would still have to answer constitutional questions about lines on a map.
I really don't understand how we got into this mess of congressional redistricting. We don't "redistrict" state lines every few years to make senate seats "fairer" in any sense. Why didn't congressional districts just follow this obviously parallel pattern using (e.g.) counties? For that matter, why didn't this get left up to a state-by-state basis to determine how congressional seats are apportioned so that some states could gerrymander if they wanted and others could have a fixed-for-forever set of districts? I don't know if this would result in better outcomes, but it would certainly be more transparent and consistent.
I would love it if anyone could provide a detailed history of this whole mess that starts from the articles of confederation until now.
It sounds like you're also interested in context long before the modern era. For that, probably the most important thing to check out is the debate over the Apportionment Act of 1842. Before then, plenty of states used "general tickets". I can't describe it any better than here:
In 1842, Congress mandated that the states create districts for federal congressional representatives sent to the House. Thus almost inherently requiring some form of redistricting. If you don't make adjustments over time, you almost surely end up with "rotten boroughs" over time, not unlike what was described by the Reynolds v. Sims wiki article @Lewis2 linked:
That's unlikely to be politically tenable really long-term, so the main questions become who does it, how often do they do it, and what rules do they have to follow when doing it. Even if you want to say, "We're just not going to do it and keep the same districts forever," you're likely to still do it eventually, just when it becomes so politically untenable that you end up with a crisis, as in the Historia Civilis video concerning Britain. And of course, since it's so hard to find durable political compromises that extend well over time concerning those three main questions, we also ended up with judicial meddling in the process.
Districting in general is A Hard Problem.
Thank you especially for the link about the Apportionment Act of 1842. That's exactly the type of reference I was looking for!
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