Racial Gerrymandering

It’s a given that the 2016 elections were “stolen”, but not in the way most American’s assume: Russia may or may not have had a direct, negative impact on Clinton’s election chances, but people like Kansas Secretary of State Kris Kobach certainly did.

Kobach has been involved, both locally and nationally, with repressive voter registration laws. While Kobach loses most of the inevitable lawsuits filed against his illegal practices 1, that does not keep him from hindering minorities in their attempts to vote.

Kobach has as well consulted in gerrymandering schemes outside of Kansas. These bald attempts at dulling the effect of the minority vote are also nearly unanimously ruled against by the courts. However, that’s after the fact: Had SCOTUS ruled on Wisconsin’s obvious racial gerrymandering before the 2016 election, there’s a distinct possibility the results would have been different.

Same with the once great state of Virginia, where SCOTUS recently remanded the Virginia redistricting case back to a lower court with instructions to apply a more rigorous standard regarding racial bias.

The Supreme Court on Wednesday gave Virginia Democrats a fresh chance to challenge parts of the legislative map for the state’s House of Delegates[…]

“The upshot of all of this is that not much has changed with these cases,” Richard L. Hasen, a law professor at the University of California, Irvine, wrote in a blog post. “The fight will be over the details and application to particular cases.”

Marc E. Elias, a lawyer for the challengers in the case, disagreed, calling the decision a “major victory” that will help Democrats[…]

In 2015, a divided three-judge panel of Federal District Court in Richmond, Va., upheld 11 of the challenged districts because, it said, race had not been the primary factor in drawing them. Since the districts could be justified under traditional redistricting criteria like compactness, contiguity, incumbency protection and political considerations, the court said, race could not have been the predominant reason for drawing them.

That was the wrong approach, Justice Anthony M. Kennedy wrote for the majority. “The racial predominance inquiry concerns the actual considerations that provided the essential basis for the lines drawn,” he wrote, “not post hoc justifications the legislature in theory could have used but in reality did not.” […]

In assessing those challenges, Justice Kennedy wrote, the trial court identified “no fewer than 11 race neutral redistricting factors.” He called that kind of analysis too malleable.

“By deploying those factors in various combinations and permutations, a state could construct a plethora of potential maps that look consistent with traditional, race-neutral principles,” Justice Kennedy wrote. “But if race for its own sake is the overriding reason for choosing one map over others, race still may predominate.”

Justice Kennedy did not say the challengers would win under his less rigid standard. “The district court,” he wrote, “is best positioned to determine in the first instance the extent to which, under the proper standard, race directed the shape of these 11 districts.”

The Supreme Court affirmed one part of the trial court’s ruling, concerning a single district, which the trial court had upheld even after finding that race played the dominant role in drawing it. The trial court said the district was justified by an attempt to comply with the Voting Rights Act, which forbade the reduction of minority voters’ ability to elect candidates of their choice.

Traditionally gerrymandering redistricting has been the nasty, saliva-dripping hairball no one wanted to touch exactly because SCOTUS has heretofore refused to step in and describe legal boundaries. Today it’s still a hairball, but it appears that Bethune-Hill v. Virginia State Board of Elections, No. 15-680, will eventually make racial gerrymandering a moot point.

Racial Gerrymandering

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  1. Barring “sanctuary cities”, for example, is as nonsensical as declaring a “war on terror”: Neither thing exits in the strict legal sense, ergo no laws prosecuting either notion can be passed.

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