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We have litigated ourselves into absurd contortions with legislative redistricting, thanks to the right-wing Supreme Court majority. If you want to gerrymander a map with purely partisan intent, federal courts will not stand in your way. If you want to ignore the prohibitions against racially discriminatory maps embedded in Section 2 of the Voting Rights Act, the Court will probably accept your arguments and let you gerrymander. But if you say certain magic words that come into conflict with different racial gerrymandering restrictions in the 14th and 15th Amendments to the Constitution, well then that’s a bridge too far.
A federal judicial panel ruled on Tuesday that Donald Trump’s Justice Department, Texas Gov. Greg Abbott, and everyone who mattered in the redistricting of Texas’s congressional map said those magic words. And now, the map they drew to give Republicans up to five more seats in the next elections has been thrown out, with almost no time to resurrect it before the candidate filing deadline on December 8.
Meanwhile in California, new maps approved overwhelmingly in a ballot measure earlier this month are being challenged in exactly the same way, using exactly the same arguments, by exactly the same people whose ham-fisted handling of Texas redistricting produced the judge’s ruling throwing the maps out.
The whole thing speaks to the colossal stupidity that John Roberts has pushed the country into regarding redistricting. It should be illegal for maps to be drawn for partisan advantage; because the Supreme Court has decided this is the one thing they’re not allowed to adjudicate, in some states it is illegal (see Utah) and in some states it’s not, really. Under our Constitution, you cannot “abridge” the right to vote based on race, and legislation can enforce that; but the legislation that does enforce it by enabling minority representation in Congress is about to be tossed out, on the grounds that this infringes on the constitutional voting rights of white people.
Now, as Roberts and his fellow justices receive the Texas case on appeal, they will have to figure out how to twist themselves to allow an explicitly racially gerrymandered map while also denying other racially gerrymandered maps. The entire thing is untenable, and it reinforces the fact that “fair maps” are an impossible construct.
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