The latest battle in the gerrymandering wars took place in Virginia. The Democrats in Virginia had all the guns – they control the governorship, the legislature and a majority of the voters. In a classic example of “Ready-Fire-Aim,” the Democrats promptly used those guns to shoot themselves in the foot.   

It all started a few years ago, back when Virginia was a purplish state. Voters approved an amendment to the state constitution to establish a non-partisan procedure for drawing Congressional Districts. That procedure produced Districts that resulted in a Democrat-Republican split in the elected Representatives of 5-4, which is approximately the same as the split in Virginia voters. So far, so good.

Then Virginia gradually shifted blue. Last fall, Virginia Democrats joined the gerrymandering wars. As is often the case with wars, it started with the political equivalent of stirring songs, glitzy parades, and predictions of victory in a month.

The Democrats figured that with a little creativity and an utter absence of shame – the absence of which has never been in short supply among politicians – they could gerrymander the Districts to shift the 5-4 split in their Congressional delegation to a 10-1 split.

They would be heroes! (And maybe some of them would fill those five new Democrat Congressional seats!)

Sure, it would take another amendment to the state constitution in order to nullify the one from a few years ago that established the non-partisan procedure for drawing Districts. But, as the Democrats reminded themselves, they controlled the three bodies that approve such amendments – the legislature, the governorship and the voters.

Constitutions contain procedures for amending them. The Virginia constitution stated that the legislature is supposed to approve the amendment twice. In between those two approvals, there’s supposed to be an election of the legislature. Only after those two legislative approvals and that intervening election, can the matter be put to the voters in a referendum.

There’s method behind this redundant madness. The thought is that, after the legislature approves the amendment the first time, the voters should get a chance to dis-elect the legislature that approved the amendment. And then the new legislature has to re-approve the amendment.

A constitution is a sacred thing, you see, even if it’s just a state one. Amendments to it are not to be taken lightly.

This is where the Democrats misfired. They got the requisite approval accomplished in the state legislature which they controlled, but the approval came after early voting had already begun on the requisite election of the legislature. In fact, about 40% of the votes had already been cast for that election.

After the election, they got the requisite second approval from the new legislature, and then they narrowly got the approval of voters in a referendum.

The matter went to the Virginia Supreme Court. This week, that Court held that the first approval by the legislature did not occur before the election of legislature, because at the time of that approval the election was already underway and 40% of the voters had already cast their ballots.

In effect, therefore, there was no “election day,” but rather an “election period.” The Democrats mistakenly failed to accomplish the requisite legislative approval for the amendment prior to the commencement of that election period. The result was that 40% of the voters were denied the opportunity to consider that approval in weighing their votes in what was supposed to be a subsequent election.

The matter cannot be reviewed further by the U.S. Supreme Court, because it is purely a matter of state law. The Virginia Supreme Court is the final authority on the subject. The Democrats could start again from square one in Virginia, but it’s too late for the upcoming mid-term election.

There’s a certain poetic justice in this. Democrats like loosey-goosey election procedures such as early and absentee voting for any and all. This time, it shot them in the foot and blew up in their faces. They will use this experience to advocate for gun control, no doubt.

Imagine a system where arrests, convictions and sentencing for the crime of murder had to be in proportion to the racial composition of the population.

Since Asians are about 7% of the population, the murder arrests, convictions and sentences for Asians in such a scheme would have to be 7% of the total.  Likewise, since Blacks, Latinos and whites make up about 13%, 19% and 62% of the population, respectively, they’d have to account for 13%, 19% and 62% of the murder arrests, convictions and sentencing.

At first glance, that sounds reasonable. But of course, it is not.

The reason is because those four races commit murder at dramatically different rates. FBI data show that whites (if you include Latinos/Hispanics as whites) comprise 82% of the population but commit only 46% of murders. Asians comprise 7% but commit only 1% of murders. (Latinos/Hispanics apart from whites comprise 19% and commit 20% of murders.)

So, who is committing all the murders that whites, Asians and Latinos are not?

Blacks are. Blacks comprise 13% of the population, but commit 51% of murders in the country. If you do the math, the statistical likelihood of a Black person being a murderer is quadruple the likelihood of a white person being a murderer, and roughly 22 times the likelihood of an Asian being a murderer.

A few tangential points are worth your attention. One, this high Black murder rate accounts for a large part (but not all) of the high overall murder rate in America as compared to Europe.

Two, the victims of these Black murderers are also mostly Black themselves. Black-on-Black violent crime in America is, tragically, extremely high.

Three, a few people would contend that Blacks don’t really commit murder at a high rate (though they cannot dispute that they die of murder at a high rate since, after all, there’s a Black body to prove it).

Those people would say that these statistics to the contrary are instead proof that the justice system racially discriminates against Blacks in arresting them, convicting them and sentencing them for crimes they did not commit (but, interestingly, does not discriminate against Latinos or Asians). Nobody really believes that contention – even the people saying it – so I won’t address it.

And four, an interesting tidbit is that the number of men we arrest, convict and sentence for murder is several times the number of women, even though the two sexes are about 50/50 in the population. Does anyone seriously contend that men are victims of sex discrimination in the field of murder arrests?

Back to our hypothetical. A scheme where people must be arrested, convicted and sentenced for murder in proportion to their racial representation in the population, even though murders are not committed in that same proportion, is undeniably unjust and probably criminal.

We would have to arrest many more whites and a lot of Asians for murders they didn’t commit. And we would have to leave un-arrested a lot of Blacks for murders they did commit, all to achieve our fantasy of racially proportionate representation in the law of murder.

This superficially appealing but fundamentally unfair concept of racially proportionate representation in the law brings us to another area of law – the way we elect Congress.

The country is divided into Congressional Districts of equal population – about 762,000 people each. Each district gets one representative. That amounts to the 435 members of the House of Representatives.

Each district typically elects a House member of the party that controls the district. Only 10-15% of the districts are actually competitive. (That’s why members of Congress are seldom voted out of office.)

Because populations shift, the districts must be redrawn periodically. That’s done by state legislatures. In doing so, the legislatures often “gerrymander” the districts. That is, they draw weird-shaped districts in order to distribute the population such that each district has a slight majority of the party doing the drawing. In a state with a 55/45 split between the two parties, the party in power can easily achieve an 80-20 split in the House members elected from that state. There’s more about gerrymandering HERE.

Gerrymandering has been going on for a long time, overtly or covertly. It’s unseemly and might be unfair, but it’s part of our system of representative government. The Supreme Court allows it, because there’s nothing in the Constitution to prohibit it.

But when the gerrymandering is done for the purpose of racial discrimination, there are special rules that have evolved and changed. For a while back in the Jim Crow days, the Democrats who controlled the South racially gerrymandered the districts in a way to prevent the election of Black representatives.

That wasn’t difficult. Even in Louisiana which is about 30% Black, they simply drew the districts such that no district had anywhere close to a majority of Black voters. Divide and conquer was the strategy. The result for many years was that there were none or very few Black members of Congress.

That changed in the last half of the 20^th century with the passage of the Voting Rights Act and numerous legal challenges to districting. In fits and starts, judges gradually concluded that the VRA together with the Equal Protection Clause of the 14^th Amendment required that a state’s Congressional delegation be Black in proportion to the Black population of the state. In Louisiana, that meant that two of their six representatives should be Black since about 30% of the state population was Black.

That was achieved with gerrymandering. They drew two “majority minority” districts that concentrated the 30% Black population. The resulting districts had a weird shape, but there was some assurance that two Blacks would get elected in those two mostly-Black districts.

It was something like affirmative action. When the number of Blacks qualifying for prestige colleges and jobs was not “enough,” society put its thumb on the qualifications scale. Similarly, when the number of Blacks getting elected to Congress was not “enough,” society put its thumb on the election scale. For a while, Lady Justice peeked to check which race she was judging.  

There’s an expression in law that hard facts make bad law. Imagine a case where a child is run over and crippled after darting into a passing car. The law says the driver was not at fault but our emotions want to help that child, and so we bend the law to obtain a result that’s emotionally satisfying but legally bad.

In racial gerrymandering, the hard fact was that not many Blacks were being elected to Congress despite a significant sentiment that Congress should have more. The bad law that resulted was divvying up Congressional districts by race.

Allocating representation in Congress by skin color is almost as bad as allocating arrests, convictions and sentencing in murder cases by skin color. It denies our individuality. It assumes that Blacks will and should vote only for Blacks while whites will and should vote only for whites. To the extent those assumptions are unfortunately accurate, the effect is to further drive people apart racially. It is all founded on a destructive us/them view of race.

Moreover, this racial divisiveness is self-perpetuating. Politicians become motivated to reinforce their constituents’ destructive beliefs that they can only be represented by a member of their own race, not “the other” race.

In short, racial gerrymandering is founded in racism, and it promotes more racism.

In my upcoming final installment of this series, I’ll discuss the Supreme Court’s landmark ruling last week abolishing racial gerrymandering. It’s the most boldly correct and politically consequential decision in years. And I’ll discuss the media’s disgraceful reporting on it.