Loss aversion is a phenomenon in psychology and behavioral economics. Defined simply, it means that the pain experienced from a loss is felt twice as much as winning. In politics, that intensity manifests itself in motivation. If you take something away from people, they are going to feel it more acutely than promising them something, and the theft produces a backlash.
That’s what appears to be happening right now with Black voters. Across the country, they have been lining up to vote early, presumably against Donald Trump and the Republican Party’s MAGA agenda, in astonishing numbers, particularly in the South. That this comes only six months after the Supreme Court gutted the Voting Rights Act in Louisiana v. Callais should not come as a surprise.
In the Trump era, Republicans have become experienced at taking rights away from the American people. For women, it was the roll back of their constitutional rights when the Supreme Court overturned Roe v. Wade in 2022, sparking a backlash in that year’s midterm elections. Since Trump returned to office in January 2025, immigrants have come under assault from a xenophobic administration intent on carrying out mass deportations via masked, secret police rampaging through neighborhoods. The LGBTQ+ community, and trans people in particular, have seen their rights stripped away.
To many Black Americans, the GOP’s agenda and behavior will not have come as a surprise. After all, it’s been at the core of their history going back to before the country’s founding.
These policies have come as a shock to some Americans who never thought Trump would go there, and they have also opened the eyes of others to the cruelty at the heart of MAGA, overseen by the highest court of the land. But to many Black Americans, the GOP’s agenda and behavior will not have come as a surprise. After all, it’s been at the core of their history going back to before the country’s founding.
Black Americans know what it means to have their civil rights taken away from them. They understand fully the fear of being targeted by brutal, marauding gangs of armed men. In the decade following the Civil War and the passage of the 14th and 15th Amendments, Black people began to participate fully in civil society. Mississippi elected two Black U.S. senators and a lieutenant governor, and former slaves and their offspring enjoyed freedom of speech, movement and opportunity. But the white members of Southern society would not let that stand, and as soon as the federal government withdrew its troops, they stepped in with legal and social barriers to deny Black Americans their rights, this time backed by vigilante and state violence that became Jim and Jane Crow.
Almost a century had passed by the time Lyndon Johnson signed the Civil Rights Act in 1964 and the Voting Rights Act in 1965, a period characterized by subjugation and violence by the white majority. But Black America kept fighting, against all odds, until they won.
This year, we have seen yet another attempt by reactionary politicians and judges to turn back the clock. After the Callais decision, several Southern states reverted immediately to form and radically redrew their congressional districts to favor the white majority, making it much more difficult for voters to elect a Black federal and state representatives.
They may come to regret that decision. This isn’t 1955 (or 1855) anymore, as much as Donald Trump would like to make it so, and the Black community is once again mobilizing. According to experts, early voting data is showing something unexpected: The vote is being driven by young voters rather than just those who went through the earlier battles. It’s muscle memory for the Black community.
After 2024, when Trump won a surprising 15% of the Black vote — nearly doubling his share of 8% in the 2020 election — Republicans thought they were defying history to make great inroads within the community. Then, incredibly, the administration began attacking Black America. The result is what some politicos are calling a “Blacklash,” and it could very well be decisive in some places where nobody expected the Democrats to do well. And even if it doesn’t result in flipping seats, it’s a shot across the bow.
In Mississippi, prosecutor and former judge Scott Colom, who is Black, is running an excellent race against Sen. Cindy Hyde-Smith, the GOP incumbent. Colom has made some very clever advertisements which have garnered a lot of national attention, but Republicans and Democrats alike had largely ignored the race until just a couple of months ago. Polling has tightened, and the GOP has dispatched an influx of luminaries, including Trump himself. For the first time in years, Democrats from Bill Clinton to Kamala Harris, along with a long line of senators, have descended on the state to support Colom. Former President Barack Obama even cut an ad for him. Mississippi has the largest population of Black voters of any state in the country. If Colum gets a big Black turnout with just enough disaffected whites, he could win.
Louisiana, after giving birth to the case that saw the Supreme Court’s conservative majority gut the Voting Rights Act, has been winnowed down to one majority Black district in a state that is one-third African-American. But there has been a surge in Black participation akin to what is seen in presidential years, which could prove decisive in a race for Louisiana’s open Senate seat that has been a sleeper until the last couple of weeks. According to a recent poll, Republican Julia Letlow and Democrat Jamie Davis are tied. Among voters who have already cast their ballot, Davis — who is Black — holds a six-point advantage, and 34% of early votes have been cast by Black Louisianans.
Then there’s South Carolina, which has seen Trump make three desperate appearances to shore up Darline Graham’s torpid campaign. The endangered incumbent, foisted upon South Carolina Republicans by the president himself following the sudden death of her brother, Sen. Lindsey Graham, is not getting the job done. As numbers cruncher Nate Silver pointed out, a recent New York Times poll showing the race essentially tied is not an outlier; she is in deep trouble. As of late October, the Times reports, “Black voters accounted for around 28 percent of early votes, while making up around 20 percent of the overall electorate in recent cycles. The trend is not unlike what we’re seeing in Georgia and North Carolina thus far.” If that holds true through Election Day, we could see the biggest upset of the whole campaign, largely due to Black South Carolinians saying “Enough is enough.”
In a few short hours, all the ads, mailers, signs and rallies will mercifully come to an end. I am cautiously optimistic, but like many, I’ll never celebrate prematurely again. There is good reason, though, to feel more positive than we have in a long time. Trump and his acolytes have overreached. Opting for the big tech credo of “move fast and break things,” they vastly overestimated their abilities — and the American people’s tolerance.
They have also aroused a group of Americans who know what it is to lose their rights and privileges. With all that history and so many battles, Black Americans have shown what it takes to never give up.
More than 40% of people flagged by the Trump administration as suspected noncitizen voters in California aren’t on the state’s current voter rolls, according to a new analysis filed in federal court Saturday, raising fresh questions about the Justice Department‘s efforts to intervene in ballot counting days before the midterm elections.
Researchers with UCLA’s Voting Rights Project examined a list of 20,930 people identified by federal officials as potentially ineligible voters. They found that 8,880 names, or 42%, could not be matched to California’s current voter file.
The analysis also identified at least 22 people who appear to be U.S. citizens, with researchers warning that the number of citizens included on the list could be considerably higher.
The findings were submitted in litigation brought by the Coalition for Humane Immigrant Rights, which is challenging the administration’s efforts to use federal immigration data to identify suspected noncitizen voters.
🚨 CHIRLA & the UCLA Voting Rights Project have filed a federal lawsuit to defend voting rights ahead of the 2026 midterms.
The case seeks equal treatment under the Constitution for all U.S. citizens, regardless of birthplace.
No second-class citizens. No second-class votes.
The Justice Department demanded that California election officials separate ballots associated with the listed individuals and withhold them from counting until their citizenship can be verified. Federal prosecutors have also warned election officials of potential criminal consequences for knowingly processing ballots cast by noncitizens.
California officials rejected the demands, questioning the list’s reliability and warning that separating ballots could disrupt an election already underway.
On Friday, the 9th U.S. Circuit Court of Appeals rejected the administration’s emergency request to force California to set aside the disputed ballots. The court concluded that the government had not demonstrated that such extraordinary intervention was legally justified.
A federal district judge had previously rejected the request, warning that it could disenfranchise eligible voters and create chaos in the election system.
The Justice Department maintains that its efforts are intended to prevent illegal voting, which is prohibited in federal elections. The administration has defended its data and argued that counting ballots from ineligible voters would undermine legitimate votes.
But the new analysis raises questions about whether the government’s list accurately identifies people who are registered to vote, much less whether they are ineligible.
The dispute comes as millions of Californians have already cast ballots ahead of Tuesday’s midterm elections.
If the polls are correct, Republicans are set for a shellacking in the Nov. 3 midterms, losing the House and quite possibly the Senate, and likely some prominent governorships across the country. If that happens, there’s a good chance that online chatter about repealing the 19th Amendment will heat up once again.
For a decade now, MAGA social media users have been aggrieved at the way women vote for Democrats at higher rates then men, such as in 2024, when 53% of women voted for Kamala Harris over Donald Trump, who received 55% of the male vote. Their solution to this imbalance began in 2016 as a trolling hashtag on what was then called Twitter: #RepealThe19th, a reference to the constitutional amendment, ratified in 1920, that extended suffrage to all women in theory, but mostly white women in practice. The hashtag has faded since then, but not because of a lack of interest. The idea has morphed from a joke into a serious proposal that is making its way from fringe Christian right circles into the mainstream of the Republican Party.
Douglas Wilson, a prominent Christian nationalist who lead the church Pete Hegseth belongs to, has grown increasingly loud in his calls to replace individual voting with “household voting,” where only heads of households, who are presumably male, would be able to vote. The defense secretary has praised Wilson for a CNN interview he gave in which he outlined his vision of a Christian theocracy that disenfranchises women. Other prominent pastors with large online followings, such as Dale Partridge and Joel Webbon, both in Texas, have explicitly denounced the 19th Amendment.
Ending women’s suffrage is a hot topic among the right’s youngest leaders. Earlier this year, Kai Schwemmer, the political director of College Republicans of America and one of the many young leaders angling to be the new Charlie Kirk, called for the end of women’s suffrage. On his Daily Wire podcast, conservative commentator Michael Knowles hosted a panel of young women and spent an hour justifying the arguments for repealing the amendment. White nationalist podcaster Nick Fuentes, who has a large audience of young men, routinely calls for the end of women’s voting rights.
Most alarmingly, Turning Point USA, which is among the most well-funded and popular conservative organizations in the country, is now routinely platforming opponents of women’s suffrage. Along with Schwemmer, the organization recently booked the Christian nationalist pastor and podcaster Joshua Haymes, who argues that women voting undermines the family, for their new “Pick Up The Mic” tour. Commentator Andrew Wilson, who frequently goes viral by arguing that women should lose the vote, has also been representing TPUSA in podcast interviews. Alex Clarke, the host of TPUSA’s most popular women’s show, has platformed guests who oppose women’s suffrage, including one who argued it was a “net negative” for society. Savanna Stone, a popular MAGA influencer who opposes women’s suffrage, spoke at this year’s TPUSA Women’s Leadership Summit, a name whose irony gets worse by the year. Multiple attendees of the conference told the CBC that they would be happy to lose their right to vote.
“Conversation over whether women should vote used to be limited to some of the most extreme and patriarchal churches,” said Sarah Stankorb, a journalist, expert in women and religion, and author of “Damned If She Does: Why Women Quit Church and What It Means for the Future of Religion.” She told Salon that it’s “no coincidence” that ideas once on the fringes of the Christian right “keep popping up in public discourse.”
Stankorb noted that Christian nationalists are taking “partisan polarization” to a place where “denying the basic rights of half the population not only comes off as a debatable point, but one with theological backing.”
“All at once, patriarchal men share think-pieces on walking back the 19th, while perched casually in leather chairs, normalizing the conversation as if it’s simply academic, reasonable even,” she said. Stankorb is worried that the constant social media repetition means the shock has “dulled over time,” putting the once unthinkable “in the realm of ‘normal.'”
To be certain, it’s extremely unlikely that Christian nationalists will be able to repeal the 19th Amendment, which would require passing and ratifying a new amendment. There is precedent for this; after the 18th Amendment, which banned the sale of alcohol, was ratified, it took another amendment, the 21st, to overturn Prohibition. The process would require a joint resolution approved by two-thirds of the House and Senate or a constitutional convention, followed by approval of three-fourths, or 38 out of 50, states
As extreme as the GOP has gotten, it’s hard to imagine that the party — which has 11 sitting female Senators — would go that far, or be able to win big enough majorities in Congress, if they even considered it. After all, it took a century of feminist organizing to get male leaders to even let women vote, and it would be a lot harder to take the right away since over half the electorate is female.
The larger goal here is to normalize the idea that women’s citizenship isn’t legitimate and to instill the idea that women should feel lucky to be “allowed” even the few rights they have.
In all likelihood, most of the MAGA pundits and pastors who are pushing to end women’s suffrage know full well it will never happen. But their musings shouldn’t be dismissed as nothing more than attention-seeking behavior. The larger goal here is to normalize the idea that women’s citizenship isn’t legitimate and to instill the idea that women should feel lucky to be “allowed” even the few rights they have. In fact, this notion is similar to the way that leaders like Vice President JD Vance insist people of color should be “grateful” for having rights at all, words which carry the implication that the way to prove their gratitude is by not demanding full equality.
Wilson made the underlying threat explicit in April. “Women have to appeal to men for the rights,” he told Konstantin Kisin, a right-wing British political commentator. “Anytime men want to take rights away from women, they can, like that. And there’s not a damn thing women can do about it.” Wilson continued to argue that there will no end to male dominance, because if women push their luck too far, it will be the end of male “benevolence” in letting women have any rights at all. His diatribe shows the goal of the anti-suffrage argument: to scare women off seeking full equality, or even trying to claw back rights they do have.
While the 19th Amendment is unlikely to be repealed, it’s important to note that other rights that were long assumed to be safe have been stripped from women in the MAGA era. The right to abortion, which was for decades widely assumed to be untouchable, was overturned by a far-right Supreme Court in 2022. Because of women’s outrage — and suffrage — many red states restored abortion rights through ballot measures, which angered the right and amplified calls to take away women’s votes.
The assumption that the justice system will protect women and children from sexual violence has also been under assault in recent years with actions that range from the Trump administration blocking the release of the Epstein files to the attacks on the Cornell student whose only “crime” was reporting an alleged gang rape. Then there is the recent ad run by Ohio’s Republican gubernatorial candidate Vivek Ramaswamy, which features the estranged mother of Dr. Amy Acton, his Democratic opponent. In 1978, after Acton reported that she had been raped by her stepfather, her mother sided with her husband, and the pair fled the state following his arrest and before he could stand trial.
All these incursions on women’s rights are easier to sell to a public that has normalized the idea that women aren’t full citizens — that their ability to vote is a privilege that can be snatched away, and suffrage is only a right for men. The voting rights issue is used as a rhetorical cudgel against women, designed to delegitimize their opinions by suggesting they aren’t even real citizens. It’s about scaring women into thinking that if they “abuse” their vote by demanding full equality, they will be left with no rights at all.
American elections aren’t what they used to be: Thanks to relentless, politically driven gerrymandering, fewer and fewer congressional seats are truly competitive. Millions of Americans are locked into districts where their vote will never elect the party of their choice.
But gerrymandering is also notoriously hard to fix. Many sitting lawmakers owe their seats to districts that have been wildly contorted to create secure seats. So asking legislators to ban gerrymandering often means asking them to endanger their own jobs.
Nevertheless, the stars may soon align for opponents of partisan electoral maps. Last time Democrats controlled the US House, they passed a bill that sought to eliminate gerrymandering. That bill died in the Senate. But, if the polls are correct, Democrats are poised to take both houses of Congress in November. If President Donald Trump remains an albatross around Republicans’ necks through 2028, Democrats could soon control both elected branches of government.
That’s good news for opponents of gerrymandered maps, because, as recent developments show, any viable solution to congressional gerrymandering will have to come from Congress and not the states. Some blue states, such as California and Virginia, had previously enacted constitutional amendments intended to halt gerrymandering in those states. But Democrats are now trying to bypass those bans because they prevent blue states from countering Republican gerrymanders in red states.
Key takeaways
Democrats may soon have the votes in Congress to ban gerrymandering, but they still must overcome a hostile Supreme Court.
Some of Democrats’ top priorities, such as fixing the Supreme Court’s decisions enabling racial gerrymandering, are almost certainly off the table. Others, like independent redistricting commissions, could run into trouble.
Still, the Constitution should give Congress broad authority to tell states how they must draw maps to make them fair and nonpartisan.
Still, even if Democrats win the next two federal elections in historic landslides, they then must overcome the final boss monster standing between the United States and fair elections: the Supreme Court.
And unless the Court’s membership changes dramatically, that will be no easy task. Until fairly recently, the Supreme Court often blocked racial gerrymanders — those intended to lock voters of a particular race out of power — and it at least held open the possibility that a state’s maps could be struck down because of excessive partisanship.
Now, by contrast,many of the Court’s redistricting decisions read like a love letter to partisan maps. The Court’s Republican majority held in Rucho v. Common Cause (2019) that federal courts are forbidden from hearing cases alleging that a particular legislative map was drawn to benefit one political party. More recently, in Louisiana v. Callais (2026), the Court’s Republicans abolished longstanding safeguards against racial gerrymandering, ushering in a new wave of maps that favor white Republicans in the South.
There’s no way to guarantee that a Republican Supreme Court won’t simply make up a reason to toss outa Democratic voting rights law, no matter what that law says. Still, there are strategic ways to mitigate that risk.Opponents of gerrymandering can maximize the likelihood that redistricting reforms will survive judicial review by paying close attention to what the Supreme Court has already said about race, election law, and other related topics. Many of the Court’s recent cases suggest that Democrats may want to tweak their approach to a federal redistricting law — and the Court’sopinions give clues into how.
Don’t even think about passing a law that mentions race
The most obvious trap that Democrats could fall into when drafting an anti-gerrymandering bill is to mention race, or otherwise draw racial distinctions of any kind.
Until just a few months ago, the federal Voting Rights Act offered some of America’s strongest protections against gerrymandering. A 1982 amendment to that law prevented many racially polarized states — often states where white people vote Republican and Black people vote for Democrats — from drawing maps that maximized white power. This had the side effect of limiting partisan gerrymandering in that space, because requiring these red states to draw more Black-majority districts meant electing more Democrats.
But the Republican justices effectively repealed this amendment, which was signed into law by President Ronald Reagan, in Callais.That’s because all six of the Court’s Republicans swear fealty to an idea known as “colorblindness” — the idea that any law that draws racial distinctions, no matter the purpose, is equally repugnant. Under this theory, laws that aim to lift up historically disadvantaged racial groups are legally indistinguishable from the laws that codified Jim Crow. So, if a new act of Congress requires states to consider race when they draw legislative maps, that new law will almost certainly be struck down by this Court.
Congress takes an extraordinary risk, moreover, if it inserts a race-based provision into a broader law governing redistricting, even if the vast bulk of that law does not concern race at all. NFIB v. Sebelius (2012) is one big example of how that could go wrong: In that case, four of the Republican justices claimed that the entire Affordable Care Act must be struck down because those four concluded that just two provisions of the law are unconstitutional.
The current Court is both much more conservative and much more Republican than the one that heard NFIB — and probably will be just as motivated on the issue of gerrymandering as they were on Obamacare — so a majority of its members could potentially order an entire act of Congress repealed if they deem one provision in that law unconstitutional. And, even if they do not go that far, they still might carve giant holes in a law because of one provision that mentions race.
Democrats seem to understand these limitations: The last time Democrats controlled the House, it passed two significant voting rights bills (both of which died in the Senate). The For the People Act is an omnibus bill that includes many of the Democratic Party’s ideas to improve elections, including several provisions targeting gerrymandering. Meanwhile, the John R. Lewis Voting Rights Advancement Act seeks to undo many of the Supreme Court’s attacks on the Voting Rights Act, the landmark law barring race discrimination in voting, while also enhancing some of the VRA’s protections.
Democrats’ decision to, well, segregate racial reforms from their other voting rights proposals shows that they understand many of the tactical decisions they need to make because of this Court. By placing race-related reforms in the John Lewis Act, while passing non-race-related ideas in the separate For the People Act, Democrats reduce the likelihood that the later bill will fall. It would be extraordinary, even for this Supreme Court, to strike down one law because five or more justices deem an entirely separate law unconstitutional.
But let’s say the Democrats decide the best way to get gerrymandering reform through early next year is by reviving the For the People Act. That bill’s anti-gerrymandering provisions do still contain some references to race which Democrats may want to strip out in an abundance of caution. The bill, for example, would require states to draw their congressional districts using a commission made up of Democrats, Republicans, and people affiliated with neither party. One provision of this bill provides that the pool of potential members of these commissions should be screened to ensure that it is “representative of the demographic groups (including racial, ethnic, economic, and gender) and geographic regions of the State.”
Because this provision requires the government to consider race, this Court would very likely strike it down. If that happens, the Court might simply excise the reference to race from the broader statute and leave the rest of it intact, but there’s a danger that this Court could strike down all of the For the People Act’s provision calling for congressional maps to be drawn by independent commissions — or even possibly the entire Act.
SoIf Democrats decide the best way to enact gerrymandering reform early next year is by reviving that bill and finally getting it passed, they may want to strip out any mentions of race in an abundance of caution.
Relying on independent redistricting commissions to draw congressional districts is a dicey proposition with this Supreme Court
At least eight states currently use independent commissions to draw legislative maps, and several other states involve commissions in their mapmaking process. It’s a promising model because empirical research does suggest that these commissions are effective in reducing partisanship in legislative maps. One recent study, for example, found that moving from legislatively drawn maps to commissions “would increase the share of competitive seats within a state from 25 percent to 38 percent on average.”
The idea behind an independent commission is to take the task of drawing maps away from a partisan state legislature, and give it to a multipartisan body tasked with drawing maps that favor neither major political party. The For the People Act adopts this model. It proposes that each state should have a 15-member commission consisting of five Democrats, five Republicans, and five people affiliated with neither major party. Elected officials and their immediate family, candidates for office, significant political donors, and lobbyists are all barred from commission membership.
But there’s a constitutional problem with this approach, which arises out of a surprisingly banal question: Who, exactly, would employ these commissioners?
One possibility is to make them federal officials. But if these commissioners are employed by the federal government, the Constitution would probably classify them as “principal officers,” which would mean that they would have to be chosen by the president and confirmed by the Senate. And, in any event, the Court’s “unitary executive” cases establish that, if these commissioners count as federal officials, either the president or one of the president’s subordinates would have to have the power to fire them at-will.
Classifying the mapmaking commissioners as federal officials, in other words, would defeat the purpose of creating the redistricting commissions in the first place — because the commissioners would be partisan officials and not independent actors.
The For the People Act attempts to get around this problem by calling for state-run commissions. It requires each state to “establish a nonpartisan agency,” which will appoint commissioners to draw the state’s maps. But under the Supreme Court’s “anti-commandeering” doctrine,a doctrine that precedes the Roberts Court,the federal government is typically forbidden from ”issu[ing] direct orders to the governments of the States.” So that suggests that Congress may neither order a state to appoint these commissioners, nor control how a state’s commissioners draw the state’s maps.
In fairness, there is a plausible argument that the anti-commandeering doctrine does not apply to federal laws governing congressional elections. The Constitution allows states to determine the “Times, Places and Manner” for holding such elections, but it also permits Congress to “make or alter such Regulations.” So that suggests that, when Congress writes laws governing congressional elections, it may effectively rewrite a state’s laws to conform to the federal government’s wishes.
Still, this argument is untested. And the question of whether Congress can require states to set up redistricting commissions would ultimately be decided by a Supreme Court with a 6-3 Republican majority that is often hostile toward voting rights legislation. The fate of a federal law requiring states to set up their own commissions would depend on six Republican political appointees who were confronted with a law whose very purpose is to take the Republican Party’s gerrymandering tactics off the table.
Maybe these justices would set partisanship aside and allow a law calling for mandatory state-run commissions to exist. But Congress takes an enormous risk if it bets the future of redistricting on an untested legal theory that, at least, plausibly violates the anti-commandeering doctrine. If the Republican justices want to strike such a law down, they won’t have to work hard to come up with an argument for doing so.
Democrats may want to reconsider whether to rely on independent commissions as their primary solution to gerrymandering. At the very least, they should insert language into the For the People Act stating that, if the commissions are struck down, some alternative mechanism to restrict partisan gerrymandering will immediately spring into effect.
So what can Congress do?
Though independent commissions and race-conscious attempts to combat gerrymandering may be vulnerable to constitutional challenges, Congress’s power to “make or alter” the rules governing congressional elections is in the Constitution, and it isquite broad. That should permit Congress to order the states to draw maps using congressionally determined criteria.
Indeed, Congress has long exercised this power to dictate how states must draw their congressional districts. In 1842, for example, Congress required every state to elect members of the US using single-member districts. This law lapsed in 1929, but a similar law was put back into place in 1967. That law, which provides that no congressional district may “elect more than one Representative,” remains on the books today.
Right now, this law prevents states from enacting many promising reforms, such as proportional representation, but the fact that this law has existed for so long suggests that Congress does, in fact, have broad power to dictate how states draw congressional districts.
Some of the Court’s older precedents, moreover, also suggest that Congress’s power over congressional elections is expansive. Recall that the Constitution itself gives both state lawmakers and Congress authority to determine the “Times, Places and Manner” for holding these elections. States typically get the first crack at determining their own election laws, but Congress can “make or alter such Regulations.” In Smiley v. Holm (1932), the Court said that the power to determine the times, places, and manner for holding these elections includes the power “to provide a complete code for congressional elections.”
So that suggests that Congress may lay out a “complete code” governing how congressional districts should be drawn — assuming, of course, that Congress does not violate some other provision of the Constitution, such as the rules against race discrimination.
An act of Congress governing redistricting could take many forms. Congress might, for example, repeal the ban on multi-member districtsestablished by the 1967 law,and implement proportional representation. Such a system could be set up in different ways, but in the simplest version, voters would cast a ballot for the party they want to control Congress, rather than voting for an individual candidate. Seats would then be allocated to parties based on the percentage of votes that party received. So if the Republican Party received 40 percent of the vote in a state with 10 House members, the GOP would get to pick four of those members of Congress.
Alternatively, Congress could retain the one-member-per-district rule, but implement rules governing how those districts must be drawn. The For the People Act, for example, lays out several criteria that the Act’s independent commissions must use when drawing congressional maps. Among other things, districts must “respect communities of interest, neighborhoods, and political subdivisions to the extent practicable.” The act would also prohibit states from redrawing their maps outside of the 10-year cycle established by the US census.
The bill also proposes several mathematical methods, which have names such as the “efficiency gap,” or the “Seats-Votes Curve,” that may be used to evaluate whether a particular map gives an unfair advantage to one political party.
As I’ve already explained, it is unclear whether Congress could actually create independent redistricting commissions. But a law mandating that congressional districts must be drawn in a particular way could still be enforced by a different body — the federal judiciary. If a state drew a map that violated Congress’s new rules, voters or political candidates in that state could file a lawsuit, and a court could order the state to come into compliance with federal law.
That said, one problem with this solution is that litigation often takes a long time. Historically, states that drew illegal maps that were eventually struck down by the courts often got to run one or more elections under the deficient maps before a court could determine that they were unlawful and must be replaced.
Another potential solution is that Congress could require states to “preclear” new maps with federal officials — borrowing from a method the original Voting Rights Act of 1965 used to prevent states from implementing racist maps before those maps could be challenged in litigation. Under that law, some states had to preclear new election rules with either the Justice Department or a DC-based federal court.
Though the Supreme Court effectively neutralized the VRA’s preclearance provision in Shelby County v. Holder (2013), much of the Shelby County decision criticized the VRA for applying preclearance only to some states and not others. So it is possible that this Court might uphold a new preclearance regime that applies to all 50 states. And even if it will not, Congress could adopt a belt-and-suspenders approach — requiring states to preclear their maps and permitting individual citizens to sue in order to challenge those maps. That way, if preclearance is struck down, lawsuits could still move forward.
There is no telling how this Supreme Court, which often makes up new legal rules that cannot be found in the Constitution’s text, would approach a federal law governing how states must draw their congressional maps. But existing precedents suggest that Congress would have broad discretion to design these rules how its members see fit. Outside of the racial context, the Court’s precedents largely limit which institutions may be placed in charge of redistricting or how members of those institutions are selected or removed. They place far fewer restrictions on the substance of federal election law.
Could judges be given the task of drawing maps?
Another way to potentially insulate the mapmaking process from partisan politics is for Congress to pass a law requiring maps to be drawn by judges, who are at least nominally nonpartisan. Virginia’s constitution, for example, provides that its districts shall be drawn by the state supreme court if the state legislature and a redistricting commission are unable to agree on legislative maps.
Unfortunately, the For the People Act’s proposed process for creating these judge-drawn maps may beunconstitutional. That’s because the Constitution only permits federal courts to decide matters arising out of “cases” or “controversies” — meaning that the matter is presented to the court in a proper lawsuit where a plaintiff, who was actually injured in some way by a defendant, sues that defendant.
The For the People Act seems to contemplate a kind of public hearing, presided over by three judges, where any “interested members of the public may appear and be heard and present testimony” on what a state’s maps should look like. This process, in other words, does not really resemble a lawsuit, where a plaintiff and a defendant both make adversarial arguments and a judge determines which one of them is correct.
Although the bill does indicate that an individual plaintiff may trigger a hearingby filing a formal request with an appropriate court, this individual doesn’t really resemble a party to a lawsuit, in part because they do not appear to have any greater ability to present evidence to the three-judge panel than any other member of the public.
That said, these deficiencies in the For the People Act could probably be fixed with fairly minor tweaks.Instead of allowing any random member of the public to call for a hearing, the bill should identify specific classes of individuals — be they voters within a state, candidates, or political parties — who have standing to sue the state. The ensuing hearing should be conducted like a lawsuit, with both the plaintiff and the state presenting their own arguments for how to design the state’s maps. If Congress also wants the court to consider arguments from the public at large, those arguments could be submitted in amicus briefs.
And, of course, the bill should also lay out a legal criteria that judges can use to determine if a particular map is legal.
The biggest challenge for lawmakers probably won’t be the Constitution. It will be coming up with a solution that actually prevents partisans from drawing biased maps.
At least under current law, Congress has broad discretion to lay out nationwide rules governing congressional mapmaking. A federal law mandating proportional representation, or requiring states to draw compact districts, or mandating that states must use a particular mathematical model to construct maps that are free from partisan bias, or potentially even a law allowing judges to draw maps, would all likely be constitutional — even according to this Supreme Court.
But the fact that a particular law is constitutional does not mean that it will be effective in increasing the number of competitive districts and reducing the role that partisans play in the mapdrawing process.
The most challenging task facing Congress — or, at least, a future Congress that actually wants to do something about gerrymandering — is coming up with rules that actually force states to draw fair maps. It would be a tragedy if Congress enacts a law requiring states to use a particular method to design its districts, only to discover that this method does not actually prevent states from drawing partisan gerrymanders.
In a 2016 speech, for example, former Attorney General Eric Holder mocked states that draw districts that are “only contiguous at low tide” or that are “shaped like a contorted snake.” And he suggested that states should be required to draw maps which ensure that “people who live near each other, and who have similar interests” vote in the same district. Holder, in other words, seemed to suggest that compact districts are superior to ones that spread out throughout much of a state.
But this proposal could actually make some states’ maps more biased. That’s because Democrats tend to cluster together in cities, while Republicans tend to spread out more in rural and suburban areas of a state. So, if a state’s mapmaking process fetishizes drawing nearby voters together into the same district, Democrats may all be packed into urban districts that are so overwhelmingly Democratic that many of the votes cast in these districts will be wasted. Republicans, meanwhile, could be spread out across multiple districts to ensure that their votes are counted more efficiently.
These challenges don’t mean that federal lawmakers should abandon the project of halting partisan gerrymandering. But it does mean that they should proceed with some caution. The worst outcome would be if Congress required states to use a particular method when they draw their maps, and then that method did not achieve what Congress intended it to achieve.
Avoiding this outcome, moreover, will be more difficult because Congress may need to choose second-best solutions to reduce the likelihood that the Supreme Court strikes the entire law down.
It would be better if Congress could address partisan redistricting without an increasingly partisan Court breathing down its members’ necks. But Democrats cannot choose which justices sit on the Supreme Court at the moment they gain a congressional majority large enough to actually legislate. Absent extraordinary events, they will need to do their best to draft a law that this Court will not sabotage.
Since being released early from prison in June, former Colorado election clerk Tina Peters has been granted extraordinary access to the halls of power in Washington.
Peters said she has traveled to Washington seven times, visited the White House at least twice, and met with senior officials at the Justice and Commerce departments — remarkable access for someone on parole after a 2024 felony conviction for tampering with voting machines in an attempt to show that the 2020 election was rigged against President Donald Trump.
She’s a high-profile example of a group of Trump supporters and conservative activists trying to lay out a roadmap for the president to follow. They are urging him to take more extreme steps to try and influence the outcome of an election that many polls suggest could end Republican control of Congress. But as the election closes in, the activists are now voicing increasing concerns that the president and his administration aren’t going to act on their ideas.
This book excerpt is part of Cafe, TPM’s home for opinion and news analysis.
On June 25, 2013, the Roberts Court handed down their decision in Shelby County v. Holder. The 5-4 decision gutted the Voting Rights Act of 1965’s “preclearance” condition, which required states and localities with a history of racial discrimination in voting practices to get permission from the federal government before they could change any policy related to their elections. The country had changed dramatically, Chief Justice Roberts wrote for the majority; the “strong medicine” of the Voting Rights Act, he argued, was no longer needed, let alone justified. But Michael G. Miller and I show throughout our new book, An American Problem: How the Country Built – and the Supreme Court Broke — The Voting Rights Act just how misguided that reasoning was. In the parts of the country freed from preclearance by Shelby County, our electoral institutions have grown demonstrably less open to Americans of color.
When Mike and I started working on what would become An American Problem, a promise made by Justice Roberts in Shelby County still held. “Section 2” of the 1965 Voting Rights Act, he wrote — the section containing the tools allowing litigators to attack election laws and policies that disproportionately harmed voters of color ± “is permanent and applies nationwide.” Although the Shelby County majority was happy to invalidate the preclearance regime that June morning, they told the country that tools remained still for removing discriminatory laws from the statute books.
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