The Voting Rights Rollback Shows We Need a New Constitution

As usual, US states redrew their congressional district maps after the 2020 census. Due to a series of Supreme Court rulings in the 1960s, congressional and state legislative districts are required to contain an equal number of people. "The right to vote freely for the candidate of one's choice is of the essence of a democratic society," wrote Chief Justice Earl Warren in Reynolds v. Sims, and "the weight of a citizen's vote cannot be made to depend on where he lives." The Warren Court's rulings expressly did not apply to the Senate, which represents states rather than individual people, and is not subject to the principle of equal suffrage. The Senate remained a stalwart check on equality of rights.

Thanks to the Voting Rights Act (VRA) of 1965 — particularly Section 2 — each state's districts also had to avoid diluting minority voting power. It was fine to draw congressional maps that benefit certain political parties (a practice the Supreme Court recently declined to stop), but doing so based on race would, in theory, draw the ire of the federal government.

So when Louisiana released its 2020 map, a few eyebrows were raised. Of the new map's six voting districts, only one contained a majority of black residents, even though black people made up about one-third of the state's population. The new map was challenged in federal court for violating Section 2 of the VRA, and a judge agreed that it underrepresented the black voters. Louisiana was ordered to redraw the map and add a second majority-black district so that black voters would have the opportunity to elect candidates of their choice.

But in 2024, a group calling themselves "non–African American voters" challenged the new map, arguing that it violated the Fourteenth and Fifteenth Amendments to the Constitution, which guarantee equal protection under the law and protect the right to vote from racial discrimination. The case went to the Supreme Court under the name Louisiana v. Callais.

On Wednesday, April 29, the court ruled 6-3 in favor of Callais, striking down Louisiana's federally mandated congressional map on the grounds that creating a second majority-black district constituted racial gerrymandering. The ruling surprised no one. In doing so, SCOTUS undermined the Voting Rights Act and, in the words of the American Civil Liberties Union, allowed states to "enact discriminatory maps with impunity."

Louisiana v. Callais represents three issues of major concern for the Left. The first is the unelected Supreme Court, which now includes five justices who were nominated by a president who lost the popular vote (first-term George W. Bush and first-term Donald Trump), and four who were confirmed by a Senate majority that represented a minority of the population.

Like its predecessor during Reconstruction, this generation's court has attacked hard-won civil rights and impeded the struggle for political and social equality. A particularly egregious example came in 2013, when, in Shelby County v. Holder, the court effectively eliminated Section 5 of the Voting Rights Act, which required states with a history of discriminatory voting laws to submit any electoral changes to the federal government for review through a process called "preclearance." The day of the ruling, Texas, a former preclearance state, implemented a restrictive and long-blocked voter ID law.

Since then, states have implemented some one hundred new restrictive voting laws. Civil rights icon John Lewis said that Shelby County v. Holder stuck a "dagger in the heart of the Voting Rights Act." Lewis died in 2020; the next year, a voting rights bill in his honor was killed in the Senate.

The Supreme Court and its support for attacks on voting rights speaks to the need for a judicial system that is accountable to the working-class majority, not to the executive branch's agenda or to its own prerogatives, regardless of what those prerogatives might happen to be at any given point of time. The Supreme Court and the entire federal judiciary are noxious not only because they are controlled by the Right and will be for the next several decades but because their very existence violates the principle of one person, one equal vote.

Last year, Mexico became the second country in the world to elect its Supreme Court by popular vote. "For decades," argued the country's left-wing ruling party, Morena, "the Mexican judiciary was in the hands of a political and economic elite that felt it owned the country." The American left should take a page from Morena's playbook in confronting our own country's tyrannical judiciary.

The second issue raised by the decision is our federally mandated system of single-member, winner-take-all congressional districts. Louisiana v. Callais involves two cases of racial gerrymandering but with different desired political outcomes. The first, favored by Louisiana's Republican-controlled state legislature, draws the congressional map to underrepresent black voters by giving them one of six districts, or less representation when compared to their state's overall racial makeup. The second, favored by civil rights activists and many members of the Democratic Party, draws the map to give black voters (who consistently vote blue) their equal share of two out of six districts.

Louisiana v. Callais only happened because Louisiana, like every state, elects its congressional representatives through winner-take-all, single-member districts. These types of districts make gerrymandering possible. Because only one candidate can win in each district, even small boundary changes can dramatically reshape election outcomes. Map-drawers use their power to pack the opposing party's voters into a few districts or divide them among several, ensuring they have little chance of winning elsewhere.

Proportional representation (PR) would largely eliminate the structural distortions that make Callais possible. Rather than drawing partisan single-member districts, PR allocates seats based on each party's share of the statewide vote; every vote counts equally. Under PR, black voters and other groups would win their fair share of representation without needing race-based districting at all.

In 2022, an omnibus voting rights bill that included limits on gerrymandering was supported by more than 60 percent of Americans. But it died in the Senate at the hands of the filibuster. When Democrats attempted to change the rules to allow the bill to pass with a simple majority, fellow Democrats killed it.

The ACLU is concerned that representative districts will not survive the Supreme Court. But that concern misses the fundamental point. The real question is whether we can win PR and escape the dead end of competitive gerrymandering currently sweeping the country.

The third issue is the Constitution itself. Any change to the Supreme Court would require a constitutional amendment — which, as George Van Cleve argues in Making a New American Constitution, is as likely as pigs learning to fly. Overturning the federal ban on PR is theoretically easier because Congress could repeal it with a new law. But as with any substantial bill, the ridiculously malapportioned Senate stands in the way.

The Senate's filibuster can be eliminated without a constitutional amendment, but neither party is eager to make the change. This has as much to do with concern for what the other would do without the filibuster while in control of the Senate as it does with taming each party's radical wing. The Senate's system of representation, which gives an equal vote to states regardless of population size (and thus grossly overrepresents small and mostly conservative states), explicitly cannot be changed through a constitutional amendment unless every state agrees.

But that's not going to happen. We need a new political founding. It is time to start fresh with a new constitution drafted by a popular democratic assembly and ratified by a nationwide vote based on universal and equal suffrage.

In the lead-up to the decision in Louisiana v. Callais, Louisiana Public Service Commissioner Davante Lewis struck a defiant tone: "We must never back down in the fight to ensure that our communities will continue to be reflected in our nation's legislature, and our needs will be weighed in important political decision-making. This is a necessary fight for all who believe in a fair, free, and equitable democracy."

Plenty of Americans are tired and fed up with the Supreme Court. It is time to carry Lewis's demand for a fair, free, and equitable democracy to its logical conclusion: a new constitution based on legislative supremacy and a unicameral legislature elected by universal, equal, and proportional representation.