Carole Levine July 24, 2023
This is not the first time I have tackled the topic of gerrymandering. The drawing of electoral districts is a subject that is tangled in both politics and racism. It is never a perfect process and, no matter how it is done, will never satisfy everyone. It has been, and probably will continue to be the subject of lawsuits and court cases, often ending up at the Supreme Court. The most recent Supreme Court case, Allen v. Milligan, in June of this year was a 5 to 4 decision written by Chief Justice Roberts who was joined by Justice Kavanaugh and the three liberal Justices, Kagan, Sotomayor, and Jackson. It took the state of Alabama to task for violating Section 2 of the Voting Rights Act and remanded them to re-do their voting districting map so that the state’s African American population would be properly reflected and an additional congressional district must be created that would give them a meaningful opportunity to elect the representative of their choice.
This week, the Alabama legislature thumbed its nose at the Supreme Court. They drew a map that gives the state the one district it had with a Black majority, and a second district with a 40% Black population – hardly enough to count as a “meaningful opportunity to elect the representative of their choice.” This map was passed out of committee on a party-line vote and adopted by the GOP-controlled state legislature and signed by the governor by the deadline set by the court. They have, in essence, turned their backs on the ruling the US Supreme Court and told their own state Supreme Court that they are in control and the legal rulings be damned.
With Alabama taking the lead, other states will not be far behind in defying the “rule of law” when it comes to gerrymandering and putting in place a means of controlling voting and voting rights. This is a strong first step among state legislatures to exert control over voting rights and elections, including federal elections. They are passing laws that shape the electorate to their own interests, rolling back the rights of minorities and controlling who can register to vote. States are now restricting just what kinds of identification are acceptable for voting, making it as difficult as possible for college students, older persons, and the disabled to vote. Most of these groups tend to be more “liberal” voters and this is a pattern in what many “red” states are doing to make voting more difficult for specific groups of people. The literacy tests that emerged following the Civil War and were used in many states to limit who could vote until the implementation of the Voting Rights Act in 1965, have similar goals to these actions by state legislatures.
In taking the action that it has, defying the Supreme Court, the Alabama state legislature is directly challenging the power of the Federal Government to ensure equal rights for all of its citizens. If other states follow Alabama’s lead, will we then see a new version of our “civil war” that divided our nation in 1861? Given our technological sophistication, I do not expect a “war”, but I can imagine a federal government, both legislatively and in its court system, that is at a standstill due to obstruction in its processes and procedures (some of which is happening now). I can see more and more Court decisions being ignored by states that are charged with implementing them, and state legislatures looking for ways to seize control of government in perpetuity.
Writing for Truthout, Melissa Price Kromm described the situation in North Carolina which also flaunts the rulings coming from higher courts. The North Carolina state legislature is considering three bills that would overhaul state and local elections boards, allow poll watchers to “move freely” around polling sites, restrict same-day registration and mail-in voting, institute new voter ID regulations and give new powers to the state’s veto-proof Republican-majority state legislature. This would put the state legislature on track to manage all elections and direct their outcomes. Melissa Price Kromm points to a three point plan that includes: 1) gerrymandering the North Carolina electoral maps; 2) fully taking over the courts in North Carolina and eroding the role of the courts as a system of checks and balances for people to challenge laws that they feel are unfair by controlling the appointment of judges who sit on those courts; and 3) fully controlling elections by setting up evenly split elections board that would never agree and then throw decisions back to the legislature. This was, fortunately rejected by the U.S. Supreme Court which, as Ms. Krom states, as a court “ displayed far more sense than the highest in North Carolina.”
Defiance of the Supreme Court and the federal government is not a fantasy. As one looks at what is occurring in various states, loyalty to the federal Constitution and government is not always primary. Just this week, in a dispute over the state of Texas’ use of barb wire wrapped buoys in Rio Grande river to stop immigrants from crossing from Mexico (illegal in both the US and Mexico) was met with a response from the Texas Governor: “See you in court.”
As we look at the Alabama mapping situation, and what is sure to occur in a number of other states that will have similar redistricting issues, the defiance of a Supreme Court that clearly leans toward the far right seems puzzling. But the narrow margins that exist in Congress between Democrats and Republicans make each of these maps a battleground for holding on to power. The strangely configured Congressional districts that wend their way to ensure Democratic or Republican control of legislative bodies are the best way for the political party in power to maintain that power. Neither party would look fondly on having to cede that power to the other. Alabama has just stood up to the Supreme Court by offering a less than what was mandated plan. What happens next will be closely watched by both parties.
In this particular case, the Supreme Court may be its own worst enemy. Alabama State Attorney General Steve Marshall expects the state to be vindicated. He points to the Supreme Court’s decisions on ending affirmative action in college admissions, and points out that adopting a map in “which race predominates” could violate the Equal Protection Clause. This kind of argument may ultimately chip away at what is left of the Voting Rights Act. This is not the outcome that the Roberts Court was, I think, seeking.
The rule of law is the core of democracy. If we now have states defying laws and the rulings of our courts, what does this mean for our democratic nation? Are we watching the demise of democracy?