I know everyone is fixated on the 37-count criminal indictment of TFG last week, but I’m not going to write about that today. Instead, I’ve been thinking about the idea of “representation” ever since I learned of last week’s SCOTUS decision in Allen v. Milligan, when it made news when this Court did NOT eviscerate the Voting Rights Act when it has a chance to do so.
A refresher might be in order; very briefly, the 1965 Voting Rights Act was passed into law because it had been obvious for a century that the 14th and 15th Amendments to the Constitution did not provide adequate protection for the right of Blacks to exercise the right to vote – largely in the South, but not only in the South.
We all know this history – poll taxes, literacy tests, voter intimidation, violence, and so forth – but it’s worth thinking a bit about why this case happened now, and why it was decided the way it was.
First, I want to talk about the whole idea of representation. Political scientists talk about two types of representation – substantive representation and descriptive representation.
Substantive Representation is the ideal. This means that voters get to vote for people who best representative their interests and values.
Descriptive Representation is the reality. This means that voters get to vote for people who look like them in some fashion. It’s embodied in the idea that a representative body should “look like” the voters that selected them.
The Voting Rights Act builds from the authority derived from the 14th and 15th Amendments. It doesn’t take much reading of the legislative history of this law and these amendments to recognize that they were passed precisely because freed slaves (in the 1860s) and African-Americans in the 1960s did not believe that their rights as citizens would be upheld by white elected officials. When the modern GOP insists that the application of these laws be somehow “race-neutral,” they are ignoring the very “original intent” argument that they insist on in other settings.
Two weeks ago, I wrote about The Case For Critical Race Theory in this newsletter; here’s the link if you want to review it, because I’m going to use some of the data I presented in that article to make my case here today. https://open.substack.com/pub/kamcpherson/p/the-case-for-crt?r=9ajr&utm_campaign=post&utm_medium=web
It is undeniable in America today that Black voters are an important part of the base for the Democratic Party. This graph (from 2020) shows how various groups sort themselves out by political party identification.
I recognize that this could be misleading, because many voters don’t “identify” as Republican or Democrat, although they may normally vote for candidates of one of the parties. Because voting behavior follows the same racial division pattern as voter identification, this graph suits the needs of this essay.
Groups that had not traditionally held power – women and racial minorities – identify with (and vote overwhelmingly for) Democrats. There are historical reasons for this, but it is important today because the people who traditionally hold power, white males, don’t want to lose their hold on power, so they are doing whatever they can to keep Republicans in charge. Now, they could do that by actually supporting policies that appeal to women and racial minorities, but they clearly are not willing to do that. So they resort, instead, to rigging the game against anyone who is not either a white male or willing to agree with keeping white males in power (I’m talking to you, Clarence Thomas).
This was the purpose for which the Federalist Society was formed in the 1980s. Their goal was to get conservative judges on the bench wherever they could throughout the country, and the current SCOTUS is an example of how well they have succeeded (Alito, Kavanaugh, Gorsuch, Barrett). You’ll recall that TFG brandished a list of names of the judges he was considering for SCOTUS. This list was produced by the Federalist Society.
To keep this going, however, these folks know that they actually have to win elections. As the graph above illustrates, this is increasingly difficult for them. A Republican has won the popular vote for the Presidency only once since 1992 – when Bush Jr. was reelected in 2004. In 2000, the Supreme Court stole the election from Gore (the first victory by the Federalist Society). In 2016, TFG “won” the Electoral Vote while losing the popular vote. The GOP has failed to condemn TFG’s insistance that, despite overwhelming evidence to the contrary, he actually won the 2020 election and has been denied the position because of — oh, I don’t know, pick the villain of the week. The Deep State, George Soros, Hillary Clinton, RINOs, Fake News whoever he wakes up blaming this morning.
One of the goals of what are called “Movement Conservatives” since the 1980s has been to make the states, rather than the Federal Government, the locus of political action in the country. Reagan started this with his policy of devolution and his demonization of the Federal Government. People used to like the Government. I remember those days. Now, they call it “The Swamp” and constantly threaten to derail it and defund it. As one of my friends who works for the Federal Government says, “they’ll miss us when we’re gone.”
We did not reach this point overnight. Let’s review a couple of things that happened to create our current situation.
President Obama’s election in 2008 (and his re-election in 2012) amped up the commitment of these folks to taking back control of the government by whatever means necessary. Remember when the GOP regained control of the Senate in 2010 after Obama’s first two years in office? Senate Majority Leader Mitch McConnell said that the goal of Senate Republicans was to keep Obama from winning his second term. It may have been because he was Black. Just spitballin’ here.
They weren’t able to do that, but this just made them redouble their efforts.
Now let me introduce you to the GOP “Red Maps” project that started in 2010. You can read about it here. https://en.wikipedia.org/wiki/REDMAP. This project exploited some weaknesses in the Voting Rights Act to gerrymander the route of the GOP to electoral victory even if they didn’t have the numbers. It worked in many of the states it targeted, including Wisconsin, Michigan, Ohio, Pennsylvania, and Florida. If this grouping of states seems very familiar, it’s because these are the states we have come to identify as “swing states” in the past several Presidential Elections. This is exactly what REDMAP was intended to do.
In 2013, a critical Supreme Court decision in Shelby County v. Holder basically disabled Section 5 of the Voting Rights Act – the so-called “pre-clearance” section. This part of the Voting Act said, basically, we don’t trust the state legislatures in a defined group of Southern states to pass election laws that are fair to minority voters, so we are going to require them to get DOJ approval before any changes in election law go into effect. In his majority opinion in that case, Chief Justice John Roberts said that the problem with state legislatures behaving in a discriminatory fashion no longer existed, and thus that they would no longer be required to get preclearance to change their election laws. They could change them however they wanted.
Now think about how these two facts come together. In 2010, REDMAP begins, with the goal of creating a “red map” – that is, a map of electoral results that turns cities and counties across the country “red” with GOP victories. Now comes Shelby County, which says they don’t have to get anyone’s permission to do this. Now, look at the election results since then; states with deeply gerrymandered districts (like Georgia) elect GOP supermajorities in their state legislatures but Democratic US Senators. Gerrymandering doesn’t impact statewide elections.
And let’s not forget the stonewalling of Merrick Garland, Obama’s nominee to replace Ruth Bader Ginsberg after her death in 2015. The Senate and other members of the GOP created a totally made-up “rule” that said you couldn’t fill a vacancy so close to an election. You wanna talk about “stolen” federal positions of power? Let’s talk about the GOP’s willingness to let SCOTUS operate for almost a year with only 8 justices rather than give Obama the opportunity to select the next justice. Neil Gorsuch is the result — and Gorsuch is part of the Conservative majority on the Court that is rolling back the rights of many Americans, including both racial minorities and women. Just look at Dobbs.
Now let’s drop Allen v. Milligan into this narrative. This Alabama case basically challenged the districts that the GOP-heavy Alabama legislature drew after the 2020 census. The suit claimed that the legislature drew the districts in order to pack Black voters in Alabama (many of whom live in the so-called “Black Belt” that cuts a swath across the states) into one district, and then distribute other Black voters into several other districts so that there would not be a significant number of Black voters in any of the other districts, thus essentially guaranteeing that six of the seven congressional districts in the state would elect a white representative and undercutting the voting power of Blacks in the state.
This is where the issue of substantive vs. descriptive representation comes in. In a healthy democracy, it should not be necessary for Black voters to have Black candidates to vote for in order to secure their basic rights. It should not be necessary for women to have female candidates to vote for in order to secure their basic rights. But when one political party is pulling every lever of power it can get its hands on to keep white men in power, justice requires that the law assist in righting this imbalance. It shouldn’t be this way. But it is. Despite Roberts’ claims to the contrary, it was not “time” to negate Section 5 of the Voting Rights Amendment in 2013, and it’s not the “time” currently to eviscerate Section 2, which is what a different decision in Allen v. Millington would have done.
A little more detail here is in order. A lower court in Alabama had ruled that Alabama had violated Section 5 of the VRA when it drew these maps, and ordered them to redraw them. The state appealed to the Supreme Court, where the Court ruled that it was “too close to an election” (sound familiar?) to redraw the maps, and that the Court would revisit this case after the midterms. So this meant that these gerrymandered maps – and similarly misdrawn maps in several states, including Georgia, Louisiana, Mississippi, and Texas – were in place for the 2022 midterms – when you may recall that the GOP won a razor-thin 5 vote majority in the House. Think of everything that has happened since Kevin McCarthy became Speaker. This happened because the maps were gerrymandered and SCOTUS declined to step in.
So last week we got a decision on the merits of the case – and John Roberts wrote the Court’s 5-4 majority opinion, in which he was joined by the three you would expect – Kagan, Sotomayor, and Jackson – but also by one that you would not expect – Kavanaugh.
If you want to hear an evisceration of the position taken by the state of Alabama in this case, find a recording or transcript of what the newest justice, Ketanji Brown Jackson, had to say in oral argument. There’s some speculation that her contribution may have actually swayed Roberts or Kavanaugh (or both) from their expected decision in this case. It may actually matter who’s “in the room where it happened.” Just sayin’. Thomas, as is his wont, wrote a dissent that disparaged Black voters who didn’t have a sugar daddy to support him while he’s on the Court and to keep him firmly in the Federalist Society fold. Harlan Crowe has bought a house and various and sundry other gifts (real estate, luxury vacation trips, and the like) for “Justice” Thomas. What he has also bought is Thomas’s support for anything the Federalist Society wants.
So now Alabama has to redraw its maps before the 2024 elections. By extension, it is likely that the other states I mentioned – Georgia, Louisiana, Mississippi, and Texas – may be ordered to redraw theirs as well. This could be important for the House elections, if minority voters can have a candidate that “looks like them” – although, as I said, a healthy democracy wouldn’t require that. But ours is not a healthy democracy.
And before we go all “O Frabjous Day” about this decision, we should be on the lookout for another case SCOTUS is expected to issue an opinion on this month – an Affirmative Action case. All expectations are that the court will decide that any racial preference policies in education or business are unconstitutional. Some more cynical analysts I’ve heard talk about this say that the court ruled the way it did in Allen v. Milligan as a nod toward the need to repair the reputation of the Court (which they think Roberts actually cares about), as public opinion of the court is at its lowest ebb ever. Then, when they rule against affirmative action later this month, they can claim to be impartial. “See how balanced we are? Remember what we did in Allen? You can totally trust us.” I’m pretty cynical about all of this, but I’m not sure I’m that cynical. TBD.
Affirmative Action is a tough policy to understand, and I’m not going to talk about it today. I’ll just say that when colleges and universities get rid of the largest and most pervasive affirmative action program in the country – preferential treatment for children of their alumni – I’ll listen to arguments about “merit” and “competitiveness.” These programs benefit the children and grandchildren of people who were in college a generation or two ago. Who were those folks? Why, mostly white people, of course! Imagine that! We just call that “the way things are.” This kind of preferential treatment didn’t have a name, and it wasn’t identified as a problem, until it benefitted a group other than white men.
We so frequently know facts but more frequently do not weave those facts together for a better perspective of what our elected and appointed officials are doing to our country. If we do, we ignore the result, because that's just the way it is. Keep weaving.