It's All Politics

Joseph Fishkin

Well, they did it: On Tuesday evening, the Supreme Court found a way to make Callais worse.  They actually found several: they made an absolute partisan joke of the “Purcell principle”; they flagrantly, ostentatiously violated their own prior opinion in the long Alabama litigation in which they issued Tuesday’s order; they rewarded Alabama’s defiance of federal court orders; and they offered so very little in the way of reasoning as to make their action difficult to interpret as anything but lawless partisanship. But most importantly—and here finally we come to my topic in this blog post—SCOTUS did it by making the key implausible claim at the heart of Louisiana v. Callais, about racially polarized voting, just slightly sharper and more indefensible than it already was.

The official view of the Roberts Court is now as follows.  If every single Black person votes one way, and every single white person votes the opposite way, in every single election, forever, that is not even relevant to the question of whether voting is “racially polarized,” so long as this enduring disagreement crystallizes into political parties, meaning that the two groups populate two different parties.

And that is exactly what strong and enduring political disagreements tend to do.  I mean, where do you think political parties come from?  Sometimes a political disagreement is so deep, so durable, so all-encompassing, that it becomes the politics-structuring disagreement around which all other questions orbit. Then the political parties are going to try to organize themselves around that disagreement because that is what political parties are for.

The polarization between Black voters and white voters in Alabama is so extreme and so durable, from the Civil War all the way through the present, that it has outlasted a complete flip in the party labels.  Like strong magnets that flip all the way around instead of getting smushed together the wrong way, racial polarization in Alabama is so powerful that after Black Republicans became Democrats, white Democrats eventually had to become Republicans. Functional political parties reflect the most important political disagreements or cleavages in their polity. That’s their job.  In Alabama, the most important political cleavage in the state is clearly racial polarization.  Alabama is the second most racially polarized state in the nation.*

The Supreme Court has a different defniton of racial polarization—one that seems to suggest Alabama may not be racially polarized at all.  In Callais, a month ago, Justice Alito said Voting Rights Act (VRA) plaintiffs must show “racial bloc voting that cannot be explained by partisan affiliation.”  Last night’s order in Allen v. Milligan sharpened the point: “The mere fact that voters of different races vote for different parties is not relevant to proving racially polarized voting patterns.” (emphasis added).

Not even relevant?  That’s bold.

Suppose there’s an election where the two candidates on the ballot are A and B.  How else are voters going to act racially polarized, other than one race of voters going overwhelmingly for A while the other race goes overwhelmingly for B?  But, Justice Alito says, if A and B are of different political parties, then it’s not racial polarization.

Why?  Well, first, he points out, it is also partisan polarization.  (Ok, we’re all with him so far.)  Second, he asserts an odd fiction, that racial and partisan polarization are completely distinct phenomena, as though parties have nothing to do with race—and that therefore, we can define racially polarized voting by a process of subtraction.  Whenever you have partisan polarization, we’re going to define that, ipse dixit, as not racial polarization.  (That sound you hear is the entire political science profession getting off the train at that point, shaking their heads in disbelief.)   And so it follows, on Alito’s view, that there may not be any racial polarization in Alabama at all: it’s all partisan polarization. It’s all politics.

Supreme Court justices can make up their own doctrine (and they certainly did here!); that’s part of their job. But their creative redefinition of racially polarized voting doesn’t change the political science any more than their law office history changes actual history.  Racially polarized voting is a political science concept.  It means what it sounds like.  It means that people of one race tend to vote one way and people of another race tend to vote another way.  The stronger that pattern, the more racially polarized the voting.  That’s all.  You can have racially polarized voting with no parties, one party, two parties, many parties, it doesn’t matter the number of parties.  Parties reflect politically important divisions in society because that’s their job.  The question of racially polarized voting is about the extent to which voters of different races disagree in how they vote—not whether that disagreement happens to be so exceptionally powerful that a party system gets built around it, as it has been in Alabama.

In concept, racially polarized voting is not very complicated. There are interesting and somewhat tricky issues of data and statistical inference involved in measuring it, since we use a secret ballot and you can’t generally directly observe the race of each voter.  Political scientists have strategies for dealing with those data limitations and coming up with estimates of racially polarized voting.  It turns out to be empirically highly varied from place to place in the United States.  Political scientists’ estimates of racially polarized voting have found their way into generations of judicial opinions because judges find them useful.  Why?  The most important reason is that racially polarized voting helps judges decide when a racial group will need protection to avoid having its voting strength diluted in violation of American law.  

There are always winners and losers in politics.  No group, racial or otherwise, is guaranteed to be in the majority all the time.  Sometimes you’re going to be stuck in the minority.  In normal politics, you win some, you lose some.  If voting is not racially polarized, plenty of people of all races will be among the winners and the losers and that’s fine.

However, Americans collectively decided that we would not allow a dominant racial majority (specifically, the Southern white elites of places like Alabama) to design voting rules and maps that meant Black people persistently and systematically lose, over and over, so that they have no representation in government, when their views are strongly at odds with the views of the white majority.  Abstracting out from the paradigm case of Black people in states like Alabama, Americans decided to ensure through constitutional amendment and statutory enactment that no racial group is durably locked out of political power.  To achieve this, we ratified the Fourteenth and Fifteenth Amendments.  When the Supreme Court failed to enforce those Amendments, leading to most of a century of Jim Crow, we followed up with the Voting Rights Act.  Both required considerable struggle and sacrifice.  People died for the Voting Rights Act, and many of their relatives are still around to talk about it.  The Reconstruction Amendments and later the VRA were needed because without them, the white power structure of the states in the former Confederacy such as Alabama was obviously going to come up with ways to lock Black people out of electing any of their preferred candidates to office.  We know they would do this because they did it.  And also because they are now trying to do it again.

In politics, sometimes you win, sometimes you lose.  But if voting is racially polarized, such that white voters persistently vote “as a bloc” to stop the candidates Black voters prefer, the Fifteenth Amendment and the Voting Rights Act say you have to structure your elections in a different way, so that despite this polarization, there’s some sharing of power with Black people.  The white majority gets most of the seats but not all.  This is the basis on which federal courts ordered Alabama to draw a second congressional district where Black voters might elect a candidate they actually chose.  Alabama blatantly defied that order, and now the Supreme Court has rewarded the state for that defiance.

Louisiana v. Callais was the final act in a bleak Roberts Court trilogy that eviscerated the Voting Rights Act.  The trilogy began with Shelby County v. Holder in 2013 (nullifying Section 5 of the VRA).  Just like the lesser-known middle episode in the trilogy, Brnovich v. DNC (2021), Callais was an Alito opinion that legislated an elaborate new statutory scheme for proving voting discrimination claims.  But it’s an odd, crabbed kind of statutory scheme, one that no Congress would have legislated in real life.  Instead of laying out in the statute what actually counts as discrimination, Alito’s rewritten legislative framework is entirely devoted to creating new defenses that shield jurisdictions from VRA liability—many of them written in vague enough terms to give creative judges plenty of tools for making sure VRA plaintiffs lose. One of those new defenses is the “it was party, so it was not race” defense that is the subject of this post.  Section 2 of the VRA once covered discrimination in both voting procedures (“vote denial”) and districting (“vote dilution”).  Alito rewrote the VRA’s legal requirements for the former in Brnovich and the latter in Callais—all with the blessing, the opinion assignment, and the vote of Chief Justice John Roberts (whose opposition to the VRA was known at the time of his confirmation hearings, if Congress had listened to John Lewis).  This trilogy of cases is one of the most important elements of the historic, ignominious legacy of the Roberts Court.

And yet that somehow understates it.  The Supreme Court is going further than merely (merely!) eviscerating the Voting Rights Act.  It is also taking a pickax to underlying constitutional protections in voting, as yesterday’s order in Allen v. Milligan makes especially clear.  Instead of engaging in statutory interpretation, the Court in Callais and Milligan is lunging straight for the conceptual underpinnings of the law of vote dilution, and in particular, racially polarized voting.  This is not statutory interpretation or constitutional interpretation, but a radical conceptual redefinition of an important element in the underlying architecture of how we think about what vote dilution is.  That’s going to have a large blast radius.

* * *

So how could one test the Supreme Court’s seriousness regarding its redefinition of racially polarized voting, where we define it by subtraction, excluding any partisan polarization?  A really astute law student or lawyer might wonder: ok, SCOTUS, suppose we go down to Alabama and find a nonpartisan election for some office.  What if there’s racially polarized voting in that election? 

(There will be. As noted above, voting in Alabama is extremely racially polarized.  That’s going to hold true whether you offer voters zero, one, two, or many parties.)

If you take Justice Alito at his word, you might think he would react to racially polarized voting in a nonpartisan election with an “oh my, it turns out I was wrong, voting is racially polarized after all!”  Perhaps he might then take a fresh look at the extensive record that led the federal district court in Alabama to conclude that the state had intentionally and unconstitutionally diluted Black voters’ voting power.)  Reader, please know, this is not how it’s going to go.  Even with no party labels, Justice Alito will say, how can you tell whether it’s partisan polarization or racial polarization?  There aren’t any racial labels on the ballots either, but sometimes people know.  At the end of the day, Alito and other Republican justices simply hold to a strong intuition that party matters more than race.  This makes sense; after all, they believe party matters more than race to them.  It just stands to reason, they will feel intuitively, that any apparent case of racial polarization is actually a case of covert partisan polarization.

In any event, you actually aren’t going to find a whole lot of nonpartisan elections in Alabama to test SCOTUS with. That's because Alabama is one of a handful of states with partisan elections all the way down to the school board level. And why is that? 

It’s because of race.

If I may be permitted to get on a soapbox for a moment, the point here, loudly for those in the back, is that a state’s political system is not some kind of a natural phenomenon like its weather or its soil, but rather, a product of politics in that state (and of course, spilling over from other states as well).  Alabama’s political system was built—as in other states of the former Confederacy, with various different variations—a bit more than a century ago, by white elites, to disenfranchise Black voters.  At the time the Black voters were Republicans and the white voters were Democrats.  Later they switched party labels.  Either way, using party labels helps keep everyone on side.  Reinforcing racial lines with partisan lines helps make sure Black people lose a little more consistently than they would absent the party labels, where they might have more of a shot at alliance-making across racial lines.  Using party labels down to the school board level is one small tactic that serves that goal.

* * *

In the view of the Republican justices of SCOTUS, whenever race and party run together, any observed polarization is party, not race. This is a very convenient conclusion. It means that any time you wish to destroy the political power of a racial minority, all you have to do is define them as a different party.

When I was a law student 20 years ago, Pam Karlan taught me this point with an example I will never forget.  Suppose you have two parties, she said.  The Problack party and the Antiblack party.  Suppose their platforms reflect their names.

Are we going to see racially polarized voting?  Partisan polarization?  Yes and yes. And it’s going to be impossible to separate the two.  Indeed, I would add that if these are the parties, you can work backwards and see that race must really be the central axis of politics.  In that way, Karlan might as well have been talking about Alabama.

The Supreme Court has now more or less grabbed hold of this example and turned it upside down.  According to Justice Alito and the other Republican justices, there is not actually any racial polarization in that example.  It’s all partisan polarization.  If a state just happened to elect all its members of Congress from the Antiblack party, and Black voters were aggrieved about being locked out, they are now obligated propose an alternative less-discriminatory map that “performs equally well” in electing members of the Antiblack party. 

That is actually where we are now.  

The deeper the racial polarization, the more difficult it is to disentangle from partisan polarization, because the more closely the parties will align with the racial divide.  That is why—ironically, tragically, inevitably, intentionally—the greatest effect of Callais/Milligan is going to be in the former Confederacy, more or less the set of jurisdictions once covered by Section 5 of the VRA.

Why? Because those are still, today, more or less the places where voting is the most racially polarized.  In their 2024 APSR article, The Geography of Racially Polarized Voting, Kuriwaki, Ansolabehere, Dagonel, & Yamauchi have a helpful map, which shows considerable overlap with the old Section 5 coverage map: 

The Republican majority on the Supreme Court is responsible for this.    It is important for all of us to let Americans know that.  It will be one of the foundations for an important argument to come, about the necessity of using political power in the elected branches to do two essential things: change the way we draw congressional districts across the United States, and reform the Supreme Court.

Cross-posted on the Election Law Blog.  This post began as a thread on Bluesky.

*As in so many things, Alabama is saved from being the most extreme state in the nation only by the fact that there’s always Mississippi.