In light of the upcoming Supreme Court argument in Louisiana v. Callais, Travis Crum published a guest post at this blog arguing that racial gerrymandering should not be unconstitutional. Crum rejects the 30+ year line of cases that began with Shaw v. Reno, which the Court directly relied on in the 2010 round of redistricting to strike down Republican-enacted racial gerrymanders in Alabama, Virginia, and North Carolina.

I want to point out some of the consequences that would follow from Crum’s position, with which I disagree. It would permit legislatures to pack black voters by race into election districts at levels far higher than needed to ensure those voters have an equal opportunity to elect their preferred candidates. If black voters were able to elect their preferred candidates as long as the black voting-age population was 55%, for example, Crum’s position would permit a legislature to move voters by race to make that an 80% BVAP district instead. A legislature might seek to do that to minimize Democratic voting party in surrounding districts or to weaken black political influence.

The ban on racial gerrymandering prohibits a legislature from using race to create that result. That doctrine prohibits a State from the “excessive and unjustified use of race” in the districting process. If the Voting Rights Act requires the State to use race to design districts that comply with the VRA, that use of race is constitutionally permissible. But the State must have “a strong basis in evidence” for its position that the VRA plausibly requires that use of race. The State cannot unjustifiably pack black voters into districts by hiding behind the claim “The VRA made us do it.”

But without this constraint on racial gerrymandering, there would no legal means to challenge packing black voters by race into 80% districts. That cannot be challenged as illegal vote dilution under Sec. 2 of the VRA. To establish a Sec. 2 vote dilution claim, plaintiffs must show that black voters could be a majority in some other election district. Sec. 2 does not prohibit packing black voters by race into districts; packing becomes a violation only at the point at which the unpacked district could be split into two majority BVAP districts.

To put this another way, if black voters are entitled to one election district, due to racially polarized voting patterns and other factors, the fact that district might be 80% BVAP rather than 55% BVAP is legally irrelevant under Sec. 2 of the VRA. Either way, there is no vote dilution because black voters are a majority in the one district to which Sec. 2 entitles them.

This is exactly the problem we confronted in the first of the 2010 decade of Shaw cases, the Alabama Legislative Black Caucus v. Alabama case, which I argued before the Court in 2014. The Alabama legislature had packed black voters into districts at extremely high levels, on the claim the VRA required doing so. But none of those districts could be unpacked to create an additional VRA district.

Thus, the only hook we had for challenging excessive racial packing was to argue these were unconstitutional racial gerrymanders. The Court agreed with this analysis. In his dissenting opinion, Justice Scalia accused us (not entirely unfairly) of inventing “an entirely new argument” before the Supreme Court.

Race can be used in a variety of pernicious ways in the districting process. Without a constraint on racial gerrymandering, many of those means would not be capable of being legally addressed, as the 2010 round of cases from Alabama, North Carolina, and Virginia show.

Race can be used in districting when the VRA plausibly requires it, but not if race is being used in “excessive and unjustified” ways. To be sure, that can lead to difficult borderline cases to determine on which side of the line the design of a particular district falls. An amicus brief in Callais from a group of “Race and Democracy Scholars” details how the Court has navigated those doctrinal lines since the 1990s.

Of course, the Court could apply the racial gerrymandering doctrine in troubling ways. But that’s hardly unique to the constraints on racial gerrymandering. Crum’s position does have one current ally in the Court, Justice Thomas, who recently converted to a similar view. But I don’t think a majority of the Court is going to end the constitutional constraints on the “excessive and unjustified” use of race in the districting process.