The Candidate of Their Choice

Before it was butchered by the Roberts Court, a key purpose of the Voting Rights Act was to ensure that, where cohesive minority communities exist, they would have a reasonable opportunity to elect the candidate of their choice.

For Black communities, this often understandably meant electing a Black representative. But not necessarily.

For example, the Tennessee congressional district that until recently was anchored around Memphis is a majority-Black district represented by a White man, Steve Cohen. Why does Cohen represent that district? The same reason anyone represents any district: the majority of voters in his district like him, he's earned their trust, so they keep reelecting him. Periodically during his tenure he would draw an African-American challenger, often to much fretting and teeth-gnashing from the national media, and each time he would absolutely flatten them, because again, Steve Cohen was well-liked and trusted by the voters in his district. That he kept winning, and winning handily, in a majority-Black district was not a failing of the Voting Rights Act. Neither would it have been a failure of the Voting Rights Act if Memphis decided to vote differently. The purpose of the Voting Rights Act is to give cohesive minority communities, like that which exists in Memphis, the ability to elect the candidate of their choice. If they choose someone like Steve Cohen, that's their prerogative.

All of this is introduction to the fussing that's surrounding Debbie Wasserman-Schultz's decision, in the wake of Florida's latest round of partisan gerrymandering wrecking her current district, to run for re-election in the safely-blue and majority-Black 20th district (just north of, but not encompassing, her current turf). The complaint is that, with the evisceration of the VRA already signaling a cataclysmic drop in Black representation (particularly in the South), Wasserman-Schultz's bid will necessarily come at the expense of one of the few districts where a Black Democratic representative might have shot at winning.

But again: the point of the VRA is to permit minority communities to elect the candidate of their choice. And either they'll choose to elect DWS or they won't. If they do, that's their prerogative. If they don't, that's also their prerogative. It's not a foul for Wasserman-Schultz (or any other politician) to try to win the support and backing of another political community, any more than she is entitled to the support of a community. Again, either she wins or she doesn't, but that's a decision that can and should be made by the voters of the district.

I'll give this Mo Tkacik column an inch of credit for at least gesturing at a more viable basis for complaining at DWS' choice: that she should have run in the 22nd district (where she lives) because with a strong candidate it represents an at least outside chance at a Democratic victory and Democrats need to expand the playing field as far as possible. Sure, she'll probably lose in the 22nd. But she might not, and she'll give team Blue a better chance than any other candidate. Meanwhile, a Democrat will represent the 20th district no matter what. So DWS is placing her own self-interest in trying to occupy a safe seat over the party's interest in winning as many seats as possible.

Maybe. It's not exactly clear to me why DWS is the only strong candidate Democrats could possibly run in the 22nd district -- a depressing thought, if true. And this being Mo Tkacik, by the end of the column it dissolves into rambling about AIPAC and some real old-school classics about how DWS rigged the primary for Hillary Clinton against Bernie. Aside from its nostalgic value, though, that last part again speaks to this very frustrating tendency in some segments of the Democratic Party (and, to be sure, all segments of the Republican Party) that losing an election under via normal political contestation must be cheating.

On that note, there's chatter that some of the Black candidates running in the 20th District have held a meeting to see if any will drop out, in the hopes that this will consolidate the Black vote and make it more likely one of them will win. Under "Bernie was robbed" logic, non-viable candidates dropping out and endorsing a remaining candidate is, of course, the most abusive act of rigging imaginable. Under actual, normal politics, there's no problem here and such a decision is their prerogative as well. Once again, DWS is not entitled to this seat, and she is not entitled to have the political factions which oppose her just roll over and clear a path for her. If at the end of it all she wins, good for her. If she doesn't, good for whoever does. Either way, the most we can hope for is that the voters in one of the apparently few remaining majority-Black districts are able to elect the candidate of their choice.

The Supreme Court Gave Us This Hell

I know, I know. That title could apply to anything.

But what I'm actually referring to is the escalatory arms race currently occurring over partisan gerrymandering.

After Donald Trump demanded mid-decade gerrymanders from Texas and Missouri in order to shore up a faltering GOP majority, California Democrats have responded by seeking to undo anti-gerrymandering provisions in their state to provide a counter, and New York may follow. Things are growing increasingly chaotic -- Texas Democrats briefly fled the state to deny the legislature a quorum, and now that they're back they're being locked inside the legislative chambers like fairy tale princess kidnapped by an evil dragon.

While those demanding Democratic unilateral disarmament are the usual useful useless idiots, it's true that nobody who cares about democracy can think this is healthy. This entire spectacle is embarrassing, and toxic, and a mockery of the electoral system. And the hell we are in can be laid entirely at the Supreme Court's feet, due to its abominable Rucho decision. 

Rucho pretended that this was an issue that could be resolved at the state level. But the falsely-modest, actually-arrogant hand-washing of the obligation to nationally police partisan gerrymandering virtually guaranteed a national race to the bottom, and that's what we're seeing now. (Also, the fact that states had proven themselves capable of constructing anti-gerrymandering rules obviously falsified the Court's plaintive whine that there could be no judicially-manageable standard governing partisan gerrymandering). Rucho also acted as if it wasn't endorsing partisan gerrymandering; this, too, was clear bullshit at the time and clearer still after the Alexander decision canonized partisan gerrymandering into a constitutional entitlement. Rucho was indefensible on every level, and I fear even the latest contretemps only scratch the surface of the disastrous impact it will have on our basic democratic structure. The horror show we're seeing in Texas and Missouri and California and New York is the natural and inevitable result of the Supreme Court's reactionary arrogance. 

But just as Rucho's democratic hell was not inevitable, neither is unaccountable Supreme Court arrogance. In Kiryas Joel v. Grumet, the Supreme Court struck down the creation of a new school district that would have tracked the borders of a largely Satmar Hasidic Jewish community. The district was created because disabled children in that community needed special education services, and the Supreme Court in a prior case (Aguilar v. Felton) struck down the practice of sending public school teachers to parochial schools to provide those services. But the Court struck down this policy as well, concluding that creating a school district that tracked the borders of a single religious community represented an illegitimate form of religious favoritism.

Justice Kennedy wrote a concurring opinion in Kiryas Joel acknowledging that the state of New York was merely trying to "free the Satmar from a predicament into which we put them." It was the Supreme Court's Aguilar decision which forced the New York to go to the lengths it did to provide adequate educational services to the Satmar. The policy struck down in Aguilar would have been preferable to the "unfortunate course" of creating a bespoke school district for the Satmar, and so the moral Justice Kennedy drew was that Aguilar needed to be revisited. Three years later, the Court would come to agree, and Aguilar would be overturned.

Whatever one thinks about the particularities of Kiryas Joel and Aguilar, Justice Kennedy's writings always struck me as having an admirable modesty to them. No doubt the Aguilar court did not anticipate how its decision would unjustly burden small religious minorities. But once Justice Kennedy saw how the Court's decisions had led to an unjust and unworkable state of affairs, and were pushing religious communities into political arrangements that were even less desirable and justifiable than the one Aguilar sought to foreclose, he acknowledged the old precedents were due for reconsideration.

The states that wish to ban gerrymandering, but which now feel compelled to engage in grotesque counter gerrymanders just to blunt the impact of their more rapacious neighbors, are also in "a predicament which [the Supreme Court] put them." It did not have to be this way, it is this way because of an ill-advised and ill-considered Supreme Court decision. A more modest and self-reflective court would grasp the lesson. It would understand that Rucho was wrong when it was decided and it is wrong now, and it would correct its error.

But we don't have a modest Court. We have a massively, massively entitled Court; one for whom it is scarcely possible to imagine admitting to even the most obvious mistakes. So we seem stuck, in a hell of their devising. At least we can be clear on the blame.

Gerrymandering as Constitutional Entitlement

I haven't had the chance to read the Supreme Court's decision today in Alexander v. South Carolina, where the 6-3 Republican majority radically circumscribed the ability to bring racial gerrymandering claims in circumstances where (as often will be the case) there is significant overlap between racial and partisan gerrymandering. I was struck, however, by Nicholas Stephanopolous' analysis which suggests the Court's new rule is functionally that a racial gerrymandering plaintiff must "submit an alternative map showing how the state could maintain its plan’s current partisan balance while fixing the alleged racial gerrymandering," In other words, if an alleged racial gerrymander results in a 6-1 GOP/Democratic House map, plaintiffs must show that there is an non-racially gerrymandered map that also yields that same partisan split.

Alexander is the latest case to emerge out of the gibberish that is Rucho, and the impossibility of disentangling racial gerrymandering (nominally unconstitutional) from partisan gerrymandering (effectively permissible) under conditions of extreme racial polarization. Where there is near-complete overlap between "Black voters" and "Democratic voters", how does one decide if a congressional map which packs all the Black/Democratic voters into a single misshapen district is a "racial" or a "partisan" gerrymander? 

The logic behind the majority position in Alexander is that if one can't create a map that yields the same partisan end goal as the map being challenged, that suggests that the status quo map was chosen not for racial reasons, but rather because it better effectuated the goal of partisan gerrymandering that would otherwise be impossible to achieve. "We didn't draw the districts this way because it drew all the Black voters into a single district; we drew them this way because it was the only way to get the desired political slant."

But this gets things exactly backwards. Even assuming that partisan gerrymandering is constitutional (and it's worth noting that technically, Rucho doesn't say that -- it says it is a political gerrymandering claims are non-justiciable political questions, which is not the same thing), it is not a constitutional requirement that states must be allowed to do it under any circumstance. The more natural conclusion is that if you can't successfully engage in a partisan gerrymander without engaging in racial gerrymandering, then sorry, you don't get to partisan gerrymander (or at least don't get to do so to the same extent). The rule against racial gerrymandering places a limit on the ability to partisan gerrymander.

The majority's rule, by contrast, treats partisan gerrymandering as a constitutional entitlement. Any constitutional rule or principle which disenables a state from engaging in partisan gerrymandering to the fullest extent it desires must yield. Otherwise clearly impermissible and unconstitutional conduct becomes licit if it is the only way a state can implement its God-given right to gerrymander.

This is not the first time the Court has made this mistake. I flagged a similar error in the Court's Glossip opinion relating to Eighth Amendment challenges to state execution protocols. The Court there said that a prisoner challenging an execution protocol as cruel and unusual punishment cannot prevail simply by showing that the state's procedure is barbarous or tantamount to torture. The prisoner must also identify a valid execution protocol, accessible to the state, that he would deem permissible. What happens if there is no such protocol -- if all the methodologies available to the state would be agonizingly painful? The logic of Glossip is that in that case, the state is allowed to torture prisoners to death, because the state simply has to be allowed to execute people.

In both cases, the Court is making a basic mistake, conflating constitutional permissibility with constitutional entitlement. It's obvious when you think about it. The state is permitted to try and solve crimes. The state is not allowed to violate the Fourth Amendment, even if doing so would allow it to solve more crimes than if the Fourth Amendment was not enforced. If the state said that, for every claimed Fourth Amendment violation, a defendant must provide an alternative policing protocol that would allow it to solve as many crimes as if it were permitted to violate the Fourth Amendment freely, and if he can't, then the Fourth Amendment can't be enforced, that would be absurd. The Fourth Amendment places a limit on the ability of the state to solve crimes.

So too here. It might (for sake of argument) be true that capital punishment or partisan gerrymandering are not unconstitutional in the abstract. But that does not imply that in practice there must be a constitutionally-viable pathway to do either of these things. If the state can't figure out a way to conduct an execution that doesn't torture people to death, then it can't execute people. If the state can't figure out a way to partisan gerrymander without engaging in a racial gerrymander, then it doesn't get to do the racial gerrymander. That should be simple. But the Court has elevated the already dubious position that the state is permitted to engage in partisan gerrymandering, or the (somewhat less dubious) position that the state is permitted to provide for capital punishment, and converted these practices into constitutional entitlements. That's not reflective of law; that's reflective of the Court's fanatical dedication to these sorts of policies compelling it to erase the law.

The Hardball Case for Democrats Abolishing Congressional Districts

How can Democrats respond to Republican attempts at consolidating power and locking out even future Democratic majorities? For example, aggressive Republican gerrymandering may subject America to perpetual minority rule even in the branch of government (the House of Representatives) meant to be most majoritarian in character. But what can Democrats do to stop it?

People often talk about "hardball" options, as if the only reason Democrats aren't acting to defend themselves is a failure of steely-eyed will. Admittedly, that is a vice some Democrats have. But it's not the only issue. A particular problem with many hardball tactics is they invite tit-for-tat retaliation. If Democrats engage in court-packing, for instance, Republicans can just re-pack the courts again the next time they take control of the presidency and Senate. By contrast, one advantage of DC statehood is that it is relatively immune from direct retaliation -- there are no obvious GOP-leaning states that can be admitted in response.

So the ideal hardball tactic is one that Democrats can use (a) in states they control, without Republican (or, perhaps as importantly, Sinema/Manchin) permission, and (b) where Republicans cannot easily respond in kind. And so here's my pitch, more as a thought experiment than anything else: in solid blue states, Democrats should abolish congressional districts entirely, elect all House representatives at-large without any form of proportional representation.

Right now, for example, California has 53 House seats (soon to be 52). Some of these districts are Republican, some are competitive, most are Democratic. Currently, California's delegation comprises 42 Democrats and 11 Republicans. But since California is reliably Democratic at the statewide level, if all representatives were elected at-large (without any nod to proportional representation) we can assume all 53 would be Democrats -- a net gain for Democrats of 22 seats.

Of course, by stipulation I say that Republicans are allowed to retaliate, and so if California passes this law, so does Texas. Texas currently has 23 Republicans and 13 Democrats;* but if all are elected statewide and Texas retains its red hue then all 36 seats would go GOP -- a net gain of 26 for team red (If this makes you think California more gerrymandered than Texas is, recall that Trump won Texas in 2020 by approximately 5.5%, while Biden won California by 29%).  And then there are the states where this doesn't matter, because they're already all-blue (Massachusetts) or all-red (Oklahoma). Switching to at-large would yield the same outcome as the status quo, just without defined districts.

So doesn't it wash out? Not if you play it out, no.

Let's make two simplifying assumptions to start: first, that all House seats in a state-wide at-large race will go to one party (there will be no ticket-splitting), and second, that each state will vote for the party it voted for in the 2020 presidential election. The first of these should under conditions of strong polarization remain true enough (and idiosyncratic exceptions should cancel out). The second is obviously dicier (what if we're in the universe of 2016 instead of 2020?), and I'll address it in more detail in a moment. The result would be basically be the same as the electoral college outcome if we remove DC and the distorting impact of the Senate (recall that every state gets two extra electoral votes from their Senate seats, regardless of population).

Right now, the House of Representatives is Democratic-controlled by a 220-212 margin (with three vacancies). But if all states voted at-large under the above assumptions, the House breakdown after the 2020 election would 253-182 -- a huge Democratic swing.

Now, of course, it is hardly guaranteed that the 2020 election results will replicate themselves in future House elections. Georgia, for instance, went Democratic at the presidential level but had voted for a GOP governor just a few years prior. It would be foolish for Democrats to pin their House majority hopes on Georgia reliably being a blue state and thereby giving all of its seats to Democrats. There is a live possibility, after all, that it goes red, then under my above assumptions all of its seats would go Republican instead. Ditto states like Michigan or Wisconsin or Pennsylvania. In 2016, for example, the House under the above model would have had a 246R-189D split.

So let's complicate the model slightly. In swing states (which we'll define as states where the margin of victory in 2020 was less than 5%), we will assume that the state will not adopt the at-large system but instead will prefer the (typically gerrymandered) status quo as the risk-averse option. For example, right now Florida has a 16-10 Republican advantage in the House notwithstanding that Trump won Florida by just 3.3%. The GOP-controlled Florida legislature might be willing to roll the dice on the at-large system in the hopes of getting all 26 seats; but of course doing so runs a non-negligible risk that they might lose all 26 seats. Better to preserve the status quo where they can, by redistricting, guarantee themselves most seats rather than go for broke. The case is even clearer in Georgia, where Republicans hold an 8-6 advantage in the House delegation in a state Biden won (albeit by a sliver). They're already getting more than they should via gerrymandering, why take a risk and potentially lose everything? In Nevada, Democrats face the same prospect in the opposite direction: they already have a 3-1 lead in the House delegation -- why risk letting the GOP run the table in a good year just to get one more seat?

If only the non swing states use the at-large system (while the swing states preserve the status quo and vote the same as they did now), the 2020 House margin would be 235-200 in the Democrats favor. The forty-two non swing states would break down 186-142 for team blue. The remaining eight swing states are Arizona (4R/5D), Florida (16R/11D), Georgia (8R/6D), Michigan (7R/7D), Nevada (1R/3D), North Carolina (8R/5D), Pennsylvania (9R/9D), and Wisconsin (5R/3D) -- this totals 58 Republican seats and 49 Democratic seats.

Pictured: The 2020 presidential map, with "very close" states greyed out. Note that each state's number of electoral college votes is two more than its number of House seats (House seats plus Senate seats). The 2016 map is below.

What about 2016?

There were even more very close states in 2016 than 2020 -- 11 were decided by five points or less. Of course, states can't necessarily predict in advance that they'll be close (who saw Minnesota coming?). But again, if we assume that only the non-close states would use the at-large (functionally) winner-take-all system, that would start us off with 167 Democrats and 156 Republicans. The eleven swing states were Arizona (4D/5R), Colorado (3D/4R), Florida (11D/16R), Maine (1D/1R), Michigan (5D/9R), Minnesota (5D/3R), Nevada (3D/1R), New Hampshire (2D/0R), North Carolina (3D/10R), Pennsylvania (5D/13R), and Wisconsin (3D/5R). That yields a final result of 223R-212D (thanks to a whopping 67-45 advantage in the swing states). Still a GOP win, but much narrower than its actual 2016 margin of 241-196 (and, in fairness, the GOP -- barely -- won the House popular vote in 2016). Also note that two of those states, Pennsylvania and North Carolina, were forced to revise their lines shortly after the election -- it is likely that the GOP lost enough seats just from those rulings such that, under the reformed lines, Democrats would have been able to win a narrow majority even in 2016.

So this is not a "Democrats always win" solution, by any means. But it does offer Democrats some advantages. For one, it allows Democrats to fully leverage their advantage in larger states where they are leaving more "meat on the bone", so to speak. Many solid red states already have all or nearly all GOP delegations -- switching to the at-large system wouldn't change much in, say, Oklahoma or Utah, which currently have no Democrats in Congress at all and where Democrats in their best year maybe could squeak out one winner. Big solid blue states like California, New York, and Illinois would be rich prizes. Outside Texas, there aren't that many comparable opportunities for the GOP. Ohio would be a solid possibility, but Ohio is already gerrymandered so ludicrously aggressively (11R/3D) that the at-large switch wouldn't actually do that much -- just a six seat swing. Compare that to New York, where going all blue from the current 19D/8R status quo would net Democrats 16 seats.

But the other reason it works is because it neutralizes the specific GOP advantage in gerrymandering swing states. A major reason the House is so close right now is that the GOP has a nine seat advantage in the eight 2020 states that were decided by five points are fewer, even though Biden won six of them. In 2016, the Pennsylvania GOP's "gerrymander of the decade" gave them a 13-5 House advantage in a state that Trump won by less than one percent. That is largely the product of extremely favorable (to say the least) districting lines. Abandoning those lines for an effectively all-or-nothing at-large system would be incredibly dangerous for the GOP. But without going for it in these states, Republicans would be hard-pressed to overcome Democratic advantages in populous, deep blue states like California.

Again, as much as this might seem like stacking the deck, we should note that all that this system really does is make it more likely that the party which gets the most votes controls the chamber that is intended to be most responsive to majority preferences. The above analysis is fancy footwork that boils down to "under this system, the party with the most votes is most likely to win". In 2016, under the modified model where the swing states are risk-averse, Republicans would have narrowly won a House majority after narrowly winning the (House) popular vote. In 2020 under that model, Democrats would have secured a wider House majority after earning a wider (House) popular vote win. This is a good thing.

That said, putting aside its tactical utility as a hardball play that forces recalcitrant players towards more robust democratic solutions, do I think abolishing congressional districts is a good (as in virtuous) idea? That is, would I support it on its own terms, regardless of its usefulness in counteracting GOP gerrymandering? Honestly -- not really. There are good reasons to have politicians represent smaller geographic districts to whom they feel particularly accountable towards -- someone looking out for Fresno or Tacoma or Springfield specifically. An at-large process could still account for that somewhat -- the Democratic "slate" in California could self-consciously include figures from around the state who would hold themselves out as responsive to the needs of a particular community and would take point in responding to local constituent concerns. But there's no doubt there'd be a genuine loss there.

My preference, then (to the extent we're moving this beyond "thought experiment") is for this proposal to be expressly set to sunset at the moment there are uniform federal rules governing redistricting (and forbidding partisan redistricting). Basically, it tells Kevin McCarthy "agree to national rules on voting rights or you can kiss your precious California House seat goodbye". If he agrees to cooperate, lovely. If he doesn't, well, then you make good on the threat.

[Note: It took me about an hour to write this post and then another two to check and recheck my math. I'm not a math guy, so I can't guarantee the math is perfect now -- but I think it should be close. If I made any gaping mistakes, please let me know.]

UPDATE: Turns out that federal law (2 U.S.C. 2c) appears to forbid this, insofar as it requires states establish an equal number of districts to the number of representatives they're entitled to (with each district only electing one representative). I suppose one could try to skirt this by establishing multiple "districts" which overlap the same geographic territory (or better -- detach districts from geography altogether and randomly assign voters to districts). But alas, seems like this thought experiment must stay firmly in the realm of the thought.

SCOTUS Just Set Off an Arms Race

On partisan gerrymandering, Anthony Kennedy was maximum Anthony Kennedy -- puttering around, leaving open the possibility that there could be a constitutional objection without ever pulling the trigger on any individual case -- until finally he left the court, leaving the matter unresolved and the door open for the Court to do whatever it wanted.

Today, John Roberts slammed that door shut, holding on behalf of 5-4 conservative majority that partisan gerrymandering was a non-justiciable political question.

When I was but a wee lad, first encountering the political question doctrine, I did so in the context of the "one person one vote" cases. Many states had gerrymandered their legislative chambers (and sometimes congressional districts) with wildly uneven population figures -- one state senator might represent 2,000 people, another 200,000. It was a ridiculously perversion of democracy that vastly under-weighted the voting power of certain (usually urban) residents.

But in Colegrove v. Green, the Supreme Court said that it couldn't touch the issue -- it was a "political question", for which the remedy had to come through the democratic-legislative process. This, of course, was a joke: those very legislators the Court suggested appealing to were the prime beneficiaries of the gerrymandering, and by virtue of the gerrymandering were immune to even huge majoritarian pressure to redraw the lines. Of all the places to demand especial deference to the legislative process, drawing district lines is perhaps the most ridiculous. I've always taken a dim view of the political question doctrine, no doubt because Colegrove gave such a negative first impression.

It is fair to say, then, that today's decision is the worst political question ruling since Colegrove. Chief Justice Roberts even includes the same limp apologia that individuals upset with partisan gerrymandering can appeal to the legislature for change -- again, the same legislature whose power is constituted through the gerrymander. As Justice Kagan notes in dissent, this is -- to reiterate -- the worst possible location to apply the political question doctrine. And the majority's claim that the issue is just too-gosh-darn convoluted for judicial review defies credibility. Much the opposite: lower courts had been successfully converging on reasonable, common-sense standards for adjudicating these claims. The reason that the Court decided to make its political question determination isn't because there were no available justiciable standards; it's because it was afraid that there were were available justiciable standards.

So where to now? In some states, state-level litigation remains available -- though this is patchwork (it's obviously not going to go anywhere in, say, Wisconsin). Other options include using referendum to bypass the gerrymandered legislature outright and place redistricting in the hands of a non-partisan commission -- though the constitutionality of that move was only recently established via 5-4 vote in Arizona State Legislature v. Arizona Redistricting Commission, with Roberts among the dissenter and Kennedy writing the majority opinion. Fortunately, we can rely on the Roberts court to show a healthy respect for preced--sorry, I can't actually finish that sentence.

The reality is, in most states, the main effect of the Court's decision won't be to trigger some fantasy-land popular resurgence that manages to somehow leverage democratic forces of accountability on an issue that is literally designed to insulate legislators from democratic accountability. The main effect will be to trigger an arms race. And as bad as things are now, they can get much worse.

You think the 7-1 Dem/Rep gerrymander in Maryland is bad? Here's an 8-0 map -- what wonders you can do if you can just chop up the Eastern Shore to bits! What's to stop them? Why, honestly, should they stop? Do you honestly think Republicans in Florida will hesitate on this? The rational move for legislators is to try and maximize partisan gerrymandering, to lock in their own power and kneecap the opposition.

And let's not overlook the looming threat to the Voting Rights Act here. Nominally, one effect of the Court's decision is to channel more gerrymandering claims into claims of racial bias rather than partisan bias, since the former remains justiciable while the latter isn't. But we're already seeing Republicans responding to those claims by explicitly saying "our goal wasn't to disenfranchise Black voters, it's to disenfranchise Democrats -- who just happen to be Black." Put aside the Court's general hostility to the Voting Rights Act, and the overall theme of the Jurisprudence of the Second Redemption ("It is impossible for any amount of evidence to establish any government actor has ever done anything racist ever -- with the exception of when they try to help Black kids go to college"). This partisan-not-racist rationale is actually reasonably plausible -- and the Court couldn't have more openly endorsed this strategy if it had waved a green flag and sung an ode in its praise.

This Court has issued many disastrous decisions. Some of them are minor in scope but stand out for their cruelty. Others are far-higher profile in the damage they've done to our national fabric. Most of them, though, at least have the "virtue" of being the product of democratic processes that can be undone through democratic processes. This decision -- which very much should be seen as a companion to Shelby County -- degrades and decays the basic democratic quality of the American form of government. It actively resists the prospect of democratic revision; it actually encourages and will no doubt accelerate the de-democratization of the American state.

It is impossible to overstate how dangerous this is. Our country already has many -- too many -- areas designed to subvert and undermine the majority will (the Senate, the Electoral College, the colonies in DC and Puerto Rico, among others). We are sliding -- and the Court is facilitating the slide -- towards systems of permanent minority rule, where the majority is by design and in perpetuity blocked from exercising power. That cannot stand. The best we could hope for is that this pressure eventually would be released by the judicial system. With that vent now blocked, I fear we might in the future -- perhaps not the far future -- see a far more tumultuous explosion.