The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Eliminating The Voting Rights Act Asymmetry
After Callais, neither party would benefit from a VRA bonus.
As a practical matter, the Voting Rights Act helps one political party and hurts the other party. When a Republican legislature draws a gerrymandered map, Democrats will claim that the map harms African American or Hispanic voters. But when a Democratic legislature draws a gerrymandered map, Republicans will have a hard time raising a Section 2 claim that the map harms White voters. Illinois could gerrymander all Republican districts off the map, without any meaningful legal challenges. But if Mississippi or Louisiana tried to gerrymander all the Democratic districts off the map, there would be immediate legal challenges. Indeed, these southern states are forced to create "opportunity" districts to ensure minority voters can elect Democratic politicians.
This is the asymmetry of the Voting Rights Act. Because African American and Hispanic voters tend to vote for Democratic politicians, Democrats will benefit from VRA claims. By contrast, because White voters tend to vote for Republican politicians, Republicans will less likely benefit from VRA claims. What is the upshot? Gerrymandered maps in the South drawn by Republican legislatures are routinely blocked under the VRA, while gerrymandered maps in the North drawn by Democratic legislatures are far more likely to survive.
This asymmetry is not a bug of modern Voting Rights Act jurisprudence. It is a feature. Is it any wonder that Republican groups are lining up behind Louisiana in Callais to weaken, if not nullify Section 2? And is it any wonder why Democratic groups are fighting to save Section 2?
Nick Stephanopoulos has a post at the Election Blog that explains what might happen if the Callais challenge is successful:
A final feature of the SG's proposal is that it would doom most Section 2 claims in areas where most minority voters are Democrats and most white voters are Republicans. In these areas—which notably include much of the South—an additional minority-opportunity district can usually be drawn only at the cost of an existing Republican district. This swap of an old Republican district for a new minority-opportunity district, however, is exactly what the SG's proposal would prevent.
But what is the status quo now? Currently, Democratic voters in the South benefit from the VRA, while Republican voters in the North do not. Much turns on what the baseline is.
I see a similar argument over mid-decade redistricting. If Texas redistricts, then California should redistrict as well. Fair elections, the argument goes, depends on red states not having an advantage over blue states. But this is precisely what the VRA accomplishes: burdening red states, but not burdening blue states.
Callais would eliminate the asymmetry. Going forward, neither party would benefit from a VRA bonus. Critics may charge that this approach is unfair or unjust, but I think that doesn't fully recognize that for decades, the VRA would typically only help one side of the political spectrum. It is no longer 1964. As Shelby County explained more than a decade ago, "things have changed dramatically."
I'm not convinced the sky will fall after Callais. We were told the sky would fall after Rucho v. Common Cause, and it didn't. Now both parties are seeking to engage in overt partisan gerrymandering. I think most predictions of doomsday fail to account for how political groups respond to new dynamics.
