To End Racial Gerrymandering, Congress Needs to Act

By Steve Marshall

Montgomery, Ala.

In Louisiana v. Callais, the U.S. Supreme Court struck down a congressional map featuring a second majority-black district as an unconstitutional racial gerrymander. In a pointed concurrence, Justice Clarence Thomas, joined by Justice Neil Gorsuch, argued that decades of judicial interpretation have wrongly transformed the Voting Rights Act into a mandate for racial proportionality in electoral outcomes rather than an assurance of unencumbered access to the ballot box. Justice Thomas described the resulting turn a “disastrous misadventure” that divided Americans by race instead of treating them as equal citizens under the law.

Justice Thomas is right, and Congress needs to do something about it.

As Alabama’s attorney general, I have defended the state’s congressional maps in federal court for years, watching unelected judges second-guess sovereign map-making decisions, impose remedial districts, and substitute their policy preferences for those of elected legislators. It is exhausting, expensive and never-ending.

But that isn’t a failure of the courts alone. It’s a failure of Congress.

The 1982 amendments to the Voting Rights Act introduced an “effects” test that courts have interpreted to require roughly proportional racial representation in congressional maps. What began as a vital protection against intentional discrimination has drifted into a racial spoils system.

Both parties have allowed this to happen, but federal GOP lawmakers bear the lion’s share of responsibility. They have long treated the VRA as a political third rail, preferring to let others litigate, year after year, rather than refine the statute to reflect reality and clarify its application to modern redistricting. Congressional inaction in turn has allowed courts to fill the void with ever-shifting precedents that strain the Constitution’s equal-protection principles.

That posture is no longer defensible. The South and the country generally have changed. As the court acknowledged, minority voter registration and turnout have surged. African-American participation in elections often meets or exceeds national averages. The systematic barriers to the ballot that the original Voting Rights Act was designed to demolish have, in large measure, been dismantled by law, culture and time. Enforcing the law as if nothing has changed isn’t justice. It’s inertia dressed up as principle.

Meanwhile, a court vacancy or two could undo everything Callais affirmed and more. Judicial precedent built on contested statutory interpretation isn’t a true foundation. If we want durable protection for the rights of all voters and durable constraints on racial gerrymandering, we need an act of Congress.

With narrow majorities and President Trump in the White House, Congress should swiftly amend the Voting Rights Act to do three things:

First, reaffirm its core mission of prohibiting intentional discrimination against any voter on the basis of race. That principle is unimpeachable and should be codified.

Second, eliminate the judicial mandate for racial proportionality. Courts shouldn’t be engineering electoral outcomes to achieve demographic targets. That isn’t what equal protection means, and it isn’t what the original act demanded.

Third, codify traditional race-neutral principles as the governing standard for redistricting. Those principles include compactness, contiguity and the preservation of political subdivisions, including cities and counties, and “communities of interest” that have geography, culture or an economic sector in common.

The goal is a colorblind legal framework in which every voter is treated as an individual, not as a representative of a racial bloc entitled to a predetermined share of political power. Equality under the law isn’t a radical idea. It’s the promise of the 14th and 15th amendments.

Amending the Voting Rights Act will require 60 Senate votes, but the bipartisan case for a narrow, principled fix is stronger than Washington assumes. Reaffirming the act’s antidiscrimination mission while clarifying that courts can’t mandate proportional outcomes needn’t be viewed as a partisan ask. Protecting every voter’s individual right to the ballot is a principle both parties can defend. If that argument can’t win the votes it deserves, Congress should pursue a targeted amendment through must-pass legislation such as an appropriations bill, the National Defense Authorization Act or a broader election-reform package. What is unacceptable is doing nothing, holding our breath and praying the political climate remains favorable enough to survive the next redistricting challenge.

I will continue to defend Alabama’s right to draw maps on race-neutral grounds. But I speak for a growing number of colleagues who are tired of fighting the same battles in court as interpretations shift with the composition of the federal bench.

The men and women of Congress were elected to make hard choices. The U.S. Supreme Court has done its part by correcting interpretive overreach and reminding us where the constitutional guardrails lie. Now it’s time for lawmakers to amend the Voting Rights Act, restore its original integrity, and give states the clarity they deserve.

A republic that can’t govern itself on questions this fundamental isn’t governing at all.

Mr. Marshall, a Republican, is attorney general of Alabama.