Transcription
People are talking about the latest Supreme Court ruling on the Voting Rights Act incorrectly. The Voting Rights Act was not gutted. And some people may say that this is just my pedantry talking, and it totally is, but there's a purpose to it. I think it's important that we understand exactly what happened here because that is what is going to allow us to recognize where the problem actually lies and how we actually fix it.
The largest vulnerability in our system is not the Supreme Court. The Supreme Court is actually just a very effective tool by which existing vulnerabilities are being exploited. And I've talked about this before, but one of the biggest things that I think we suffer from right now is this misattribution problem. And if you're unfamiliar, earlier this week SCOTUS issued a new opinion on racially discriminatory gerrymandering, essentially allowing it. But that's not exactly what happened.
The way people are framing this is that the Voting Rights Act was gutted, that essentially SCOTUS invalidated a whole section of the Voting Rights Act, which is something they have actually done before. But that's not actually what happened here. And while some people may say, "Well, what's the difference if the result is the same?" If we recognize that the actual vulnerabilities lie in our legal code itself, then the solutions are going to be actually much more attainable and effective. By the way, this is an issue that RBG warned about for decades, and it drives me up a wall seeing how liberals, both justices and legislators, etc., don't seem to recognize this issue for what it is.
And I need you to listen carefully when I say this. While I agree with the liberal justices on their read and reasoning in just about every decision, I also understand the logic that is being used by the right to exploit these vulnerabilities. And my pedantry doesn't allow me to disagree with a lot of it based on the technicalities of the law, even if I disagree with it morally. But that's specifically because that's how my brain works. I am very good at finding technicalities. And I say this all as a disclaimer cuz I don't want it to sound like I'm arguing from a position that I'm not.
So, on to Cale and SCOTUS's ruling. The case is about a Louisiana district map. Louisiana currently has six congressional districts, meaning six seats in the House. And this fight was basically over two versions of a district map. One which would have left four seats presumed to be held by Republicans and two by Democrats, and the other which would have left five seats presumed to be held by Republicans and one by Democrats. The problem is the new map didn't just result in partisan redistribution. It also resulted in racial redistribution. In other words, the two majority Democrat districts were also two majority black districts, and that's not a coincidence.
And while the Voting Rights Act prevents racial discrimination in questions of voting, but also in districting, the courts have basically decided that in districting it has to be purposefully racially discriminatory. So, like, on purpose discriminating against a specific minority group on the basis of race. And if a map does happen to end up being racially discriminatory, the Voting Rights Act does not force a state to redraw districts based on race because that would also actually be racial gerrymandering. So, basically, on the question of districting specifically, the VRA will stop a state from purposefully racially gerrymandering, but that's about it.
What complicates this and essentially renders this part of the VRA kind of moot is the reason for which people racially gerrymander. And that is, of course, partisanship. While originally racial gerrymandering may have only been about disenfranchising minority voters, the fact is Republicans are more than happy to enfranchise or empower minority voters if they think that those minority voters are going to vote Republican. The big reason why they currently disenfranchise black voters through gerrymandering is because black voters are pretty reliably Democratic voters. That's not to say that there isn't also a specifically racial purpose to the disenfranchisement. Obviously, there is.
But in comparison, for example, you can see what they just did in Texas, which also recently had a case about its new maps and the question of partisan versus racial gerrymandering. In that case, they had actually drawn a new map with a bunch of new Hispanic majority districts specifically because they were relying on the Latino voters to vote Republican. Now, of course, ironically, they may have dummymandered their way out of the benefits to this new map. In other words, they may have gerrymandered a little too close to the sun by assuming that Hispanic voters would still be on their side by the time midterms rolled around. But the point is they use racial gerrymandering as a shortcut to their partisan gerrymandering. And ironically, in Texas, they wanted to hide that it was partisan gerrymandering, so they were advertising and claiming that it was just racial gerrymandering because they knew that in Texas people would be upset if they heard it was in fact partisan gerrymandering. And now they're making the opposite argument in Louisiana saying, "No, no, no, it's not racial gerrymandering, it's partisan gerrymandering. It's all just based on political power."
And if that is in fact the case, if it is true that the districts in question were drawn primarily in pursuit of another goal that isn't just simply discriminating against a specific group or minority, it's technically okay. Even if it results in a minority's disenfranchisement. I know what you're going to say, "Well, what does it matter, right? The result is the same. Minority voters, Democrat voters, they are being discriminated against." And you're right, especially in practice, especially in this case. But the reason it matters is because they didn't gut the VRA in the traditional sense of saying, "Well, the VRA can't actually protect against racial discrimination in gerrymandering." That part still stands, which is important even if there is a very easy way to get around it now. And the only reason it can be gotten around is because there is not a prohibition against partisan gerrymandering, which could in fact be law. And if partisan gerrymandering was in fact made illegal, racial gerrymandering would still be illegal, and there would be no easy way around either of those things by claiming you were doing the other.
In other words, and this is the crux of the issue, the misattribution that I keep seeing crop up on so many different things. The Supreme Court and conservatives in particular are playing by Air Bud rules. Time and time again, the conclusions that they're reaching are, "Well, technically, there's no rule against it, so I guess it's allowed." Which means that the way to fix that issue isn't just get a different judge that might agree with you that, "Oh, just because there isn't a rule against it doesn't mean it isn't crazy, but rather to change the rule itself. We have to stop relying on the interpretation of the laws being done in good faith by the executive, by the Supreme Court, and instead focus on writing better laws.
There is a reason Democrats have tried multiple times, especially in recent years, to pass legislation that would have banned partisan gerrymandering, complete with a whole structure involving nonpartisan committees, etc. They were trying to plug this hole that was never actually plugged or blocked by the Voting Rights Act. And in fact, SCOTUS has ruled in similar ways for decades. Now, obviously, yes, SCOTUS has thrown out parts of the Voting Rights Act before, but it has also been unable to throw out other parts. In fact, in a Supreme Court case from 2019, they said as much in Rucho v. Common Cause. In that case, SCOTUS was asked to weigh in on the discriminatory nature of partisan gerrymandering. And they basically were like, "This question is too political for it to be judicial for us to weigh in on it." And basically laid out some frameworks by which SCOTUS can make nonpolitical rulings on questions of a political nature. Like, you need certain rules that you can just measure things in a nonpartisan way. And in fact, in the court's opinion, which was a conservative majority opinion, they talk about how the framers gave Congress the power to do something about partisan gerrymandering in the elections clause, even listing a few examples of legislation that had both been passed and proposed at that point. So, essentially, they have been saying over and over again, like, this is something that Congress can pass laws about. Congress has the ability to pass laws about this. We technically conveniently can't rule on things like partisan gerrymandering unless there's a law for us to rule based off of.
And like I said at the beginning, while I disagree with this opinion on a moral ground, logically and legally, unfortunately, it holds. And while I agree with the liberal justices on just about everything, this is just another situation where it appears to me the left is relying a little too heavily on good faith interpretation and good faith application of the law on a moral basis. They just don't seem to have the same degree of Air Bud imagination that conservatives do. And that's a problem. Now, obviously, specifically in regards to this, like I said, Democrats have actually been trying to pass anti-gerrymandering legislation, which would have basically plugged that Air Bud rule. But I'm just trying to illustrate this larger problem, right? Where these vulnerabilities actually are. And it's the same issue that we were running up against and still are with everything that Trump attempts to do. Time and time again, when he has won, and he hasn't always won, but when he has won, it has been based on Air Bud rules. Technically, there's no law against it. So, technically, as the executive, he can do it that way if he wants. We need better laws, which means we need better legislators, which is why I think it's important to talk about correctly. Our problems don't stem from a group of nine people that most everyday citizens have absolutely no power to remove. No, our problems stem from the people we very, very much have the power to remove. Not that it's easy, okay? But at least it's a little bit less defeatist. And you know how I feel about defeatism.