The case was about whether Texas had constructed a racial gerrymander of its congressional and legislative districts after the 2010 Census, and the court decided by a 5-to-4 margin that only one of the legislative districts in question was in fact an impermissible racial gerrymander. There were some complex procedural issues involving a series of court decisions and deadlines, but rather than use our time to explore those in detail, I’d like to look at the big picture. Here’s part of the dissent written by Justice Sonia Sotomayor:
It means that, after years of litigation and undeniable proof of intentional discrimination, minority voters in Texas—despite constituting a majority of the population within the State—will continue to be underrepresented in the political process. Those voters must return to the polls in 2018 and 2020 with the knowledge that their ability to exercise meaningfully their right to vote has been burdened by the manipulation of district lines specifically designed to target their communities and minimize their political will.
To that, many conservatives will ask, “So what’s the problem?” Indeed, in a brief concurrence to the decision that Justice Neil M. Gorsuch joined, Justice Clarence Thomas declared that Section 2 of the Voting Rights Act, which prohibits voting procedures that discriminate on the basis of race, shouldn’t be applied to any redistricting case.
This is only the latest in a string of cases that have either upheld Republican efforts to rig the electoral system through things like partisan gerrymandering and voter purges, or at the very least delayed deciding on the question while those tactics remain in force.
In other words, the Supreme Court is a key component of the GOP election-rigging project. Republicans know that sometimes they can win elections outright, but they want to be able to win even when they lose. Which they are often able to do. In two of the past five presidential elections, the Republican got fewer votes than the Democrat but nonetheless became president. Because of both gerrymandering and some fortuitous demographic distribution, Republicans do substantially better in the House of Representatives than their actual support in the electorate warrants; in 2012, for example, they got almost 1.4 million fewer votes than Democrats but wound up with a 33-seat majority. Electoral analysts believe that in order to take back the House this year, Democrats must not just win the overall vote but win it by a huge margin, of seven points or more. It’s entirely possible that Democrats will easily win the popular vote but Republicans will nevertheless hold the House.
So whenever Republicans get the chance, they take a series of steps meant to minimize the number of Democrats who will get to the polls and make sure their votes count less when they do. They impose voter ID requirements that they know will fall more heavily on African Americans, poor people and young people. They engineer voter purges that wind up tossing more African Americans off the voting rolls. They construct gerrymanders that enable them to hold supermajorities in legislatures even when they’ve managed only a narrow victory at the polls.
And while those laws are sometimes struck down in lower courts, they know they have an ace in the hole: the Supreme Court. We must never forget that the court that keeps delivering these 5-to-4 decisions in favor of Republican efforts to rig the electoral system was itself rigged in favor of Republicans. When Justice Antonin Scalia died in February 2016, Senate Majority Leader Mitch McConnell (R-Ky.) — with the support of every single Republican in the Senate — simply declared that he would not permit President Barack Obama’s appointed replacement to even get a hearing, let alone a vote, for no real reason other than that Obama was a Democrat. It was unprecedented and indefensible, and it’s the reason the court is now divided 5 to 4 in favor of conservatives instead of 5 to 4 in favor of liberals.
So what should Democrats do? They need to push hard on their voting agenda, which includes a series of measures that, it must be noted, benefit all voters: automatic voter registration, same-day registration, generous early voting hours and universal vote-by-mail, among other things. They should get initiatives on the ballot in every state that allow them to have districts drawn not by partisan legislatures but by nonpartisan commissions.
And they should make this solemn commitment: The Republicans stole a Supreme Court seat, and Democrats will right that wrong if and when they get the chance.
If they gain control of the Senate after the 2018 elections, Democrats should declare that the Republicans owe them one Supreme Court seat and they intend to take it back. If a seat opens up during the following two years, it should remain open: Just as Republicans denied Obama the ability to fill Scalia’s seat, they will deny Trump the ability to fill that seat. If two seats open up, Trump can fill one; if three seats open, he can fill two. But one seat must be returned to the next Democratic president.
Republicans have tilted the scales of democracy, and those scales have to be rebalanced. It won’t be easy, precisely because of the success Republicans have had in rigging the game up until now. But true democratic representation demands it.