Colorblinding the Constitution

Time to Retire Racial Gerrymandering

Welcome to this week’s Lex Liberas article! As promised, I will cover one thread of gerrymandering’s tangled web. Please share this Substack with anyone interested in the Constitution, originalism, and the future of constitutional law.

Early last week, the tired specter of gerrymandering once again found itself in mainstream headlines. Gerrymandering dates back to its eponym, Elbridge Gerry, famous for his salamander-shaped voting district, and has recurred throughout history both before and after Gerry’s governorship. Texas Democrats dramatized the latest iteration of this tradition by fleeing their state to (unsuccessfully) prevent a quorum on a redistricting map. Governor Greg Abbott then threatened their arrest, and regular Texas throwdown transpired, ultimately concluding with the passage of the new map.

Regardless of the mess in Texas, readers of my weekly newsletter may recall seeing gerrymandering pop up in Supreme Court news recently. Delaying its decision in a case already argued last term, the Court requested briefs in Louisiana v. Callais to address an fundamentally transformational question:

[W]hether Section 2 of the [Voting Rights Act], at least as to how it has been applied to require the creation of majority-minority districts in some circumstances, violates a colorblind understanding of the Constitution.¹

The time has come for the honest originalist answer to this question to echo through the halls of the Court. As I reason below, the Voting Rights Act, for all its past utility, is patently unconstitutional, confusing for lower courts, and irreconcilable with our colorblind Constitution.