Below is my column in The Hill on a pesky problem facing California Democrats: their recent gerrymandering effort may have a racial discrimination problem. According to Ninth Circuit judge Kenneth Lee, the problem is District 13 and the public comments of the primary mapmaker, who declared his intention to create a Latino-dominated district.
Here is the column:
Democrats are bullish about retaking the House of Representatives and making Rep. Hakeem Jeffries (D-N.Y.) the next Speaker after the midterm elections. Part of that optimism is the cushion of five seats created through further gerrymandering of California’s U.S. House districts.
According to one respected Ninth Circuit judge, however, California may have a slight problem: Its new congressional map may be based on racial discrimination.
Judge Kenneth Lee this week dissented from a decision upholding the districts, and his detailed dissent could lay the foundation for a serious challenge that goes all the way to the Supreme Court. At issue is Congressional District 13, in the Central Valley, which Lee reveals was the result of openly racial criteria by the principal architect of the new districts.
Lee begins his dissent by quoting Chief Justice John Roberts for a 2006 decision, stating, “It is a sordid business, this divvying us up by race.” When it comes to gerrymandering, it is all a sordid business of course — but this sordid business may be unconstitutional.
The court has accepted that gerrymandering is part of politics. Majority parties, like Democrats in California and Republicans in Texas, have openly redesigned districts, sometimes into absurd shapes, to achieve political ends.
One of the vehicles long used to help boost Democratic seats is the Voting Rights Act, which prohibits districts that discriminate against racial minorities. But this law has long been challenged as itself a statutory mandate for racial discrimination.
We are currently awaiting a decision from the Supreme Court in Louisiana v. Callais on whether Section 2 of the Voting Rights Act is unconstitutional in barring any district that “results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color.”
The result of the law has been decades of protracted litigation over the design of districts to effectively guarantee minority — overwhelmingly Democratic — representation in Congress. That is viewed by many as flying in the face of the guarantee of the 14th Amendment barring the use of race to discriminate between citizens. As Chief Justice Roberts famously wrote in 2007, “the way to stop discriminating on the basis of race is to stop discriminating on the basis of race.”
Once again, partisan gerrymandering is constitutional. Indeed, last December, the Supreme Court allowed Texas to keep its redrawn maps. In Abbott v. League of United Latin American Citizens, the Supreme Court observed that “Texas adopted the first new map, then California responded with its own map for the stated purpose of counteracting what Texas had done.” In his concurrence, Justice Samuel Alito (joined by Justices Clarence Thomas and Neil Gorsuch), called it “indisputable” that “the impetus for the adoption of the Texas map (like the map subsequently adopted in California) was partisan advantage pure and simple.”
Judge Lee (a Trump appointee) is now saying that it was not that “pure and simple” with regard to at least California’s District 13. He focused on the work of Paul Mitchell, whom he described as “a California redistricting expert paid hundreds of thousands of dollars by Congressman Hakeem Jeffries, House Majority PAC, and the DCCC to draw a redistricting map for California.”
“Race-based interest groups,” Lee noted, “wanted certain racial outcomes out of the process. He happily delivered.” Mitchell is quoted as openly embracing race as the critical element in his design, including publicly declaring that the “number one thing that I started thinking about” was creating a “Latino majority/minority district” in Los Angeles.
Judge Lee notes that the stated intent to create a Latino-controlled district ignores that this is already one of the most powerful and well-represented racial groups in California: “Latinos do not just make up the largest racial/ethnic group in the state … [but also hold] significant sway among California’s Democratic elected officials and leaders.”
Nevertheless, the plan was upheld by U.S. District Judge Josephine Staton (an Obama appointee) and U.S. District Judge Wesley Hsu (a Biden appointee). In fairness to the panel, there were respected key witnesses, including redistricting experts Dr. Bernard Grofman and Dr. Jonathan Rodden of the Hoover Institution, who rejected race as the key criterion. They helped create a record to support redistricting driven by political motives. The majority also stressed that there is a presumption of good faith in such plans.
This is where it gets particularly interesting. Lee notes that, while there is a presumption, it is not absolute. It became unsupportable, he argued, when Mitchell refused to answer questions about his motivations and assurances. “Mitchell went to great lengths to avoid testifying under oath about how he drew the California map — even though he publicly talked about it to the press and interest groups before this lawsuit.”
In such a circumstance, Lee insists, the court should “take Mitchell’s statements at face value and conclude they reflect his true motivations behind the Proposition 50 map. We have nothing else to go on.”
That sets up an interesting scenario. If the Supreme Court rules against the use of race in districting under the Voting Rights Act, the opinion could have blowback on gerrymandering cases that rely on the same criterion. The Roberts court has drawn a bright line against the use of race to discriminate in various areas, including college admissions.
Moreover, the court (and particularly its three liberal justices) has stressed that one cannot ignore legislative comments on such intent. Just this week, Justice Sonia Sotomayor pushed back on the claims of neutral intent of Idaho legislators in requiring student athletes to play on teams associated with their biological sex. Although the state argued that the record did not show anti-transgender intent, Sotomayor insisted that the record had to be considered and “there’s certainly a lot of comments” that could be weighed on the question.
While the panel wrote an equally detailed case in favor of the districting as politically (not racially) motivated, there remains the glaring incongruity of sheltering the key figure and his public statements that embrace a race-based motivation for District 13. That could prompt some to send the plan back with the rapidly approaching midterm elections at stake.
The question is whether a court can simply ignore the stated intentions of the map-maker in determining the purpose of the map. At some point, Judge Lee suggests, an assumption of good faith becomes a willful blindness to racial discrimination.
Jonathan Turley is a law professor and the author of the forthcoming “Rage and the Republic: The Unfinished Story of the American Revolution.” It will be released on Feb. 3 for the 250th anniversary of the Declaration of Independence.
Selective blindness in a party about their candidates is common. However, Gavin Newsom has shown us all that total blindness does happen.
“ Judge Lee notes that the stated intent to create a Latino-controlled district ignores that this is already one of the most powerful and well-represented racial groups in California: “Latinos do not just make up the largest racial/ethnic group in the state … [but also hold] significant sway among California’s Democratic elected officials and leaders.”
So, because California has a huge Latino majority it’s redistricting is racial?
Turley pointed out that even the most conservative justices in the Supreme Court agreed that Texas AND California’s redistricting efforts were wholly partisan and Constitutional, but a lone Trump appointee’s opinion shows they were wrong? The Supreme Court’s conservatives agreed with Texas’ effort and in doing so they made it much easier for California to do the same. California did nothing different than what Texas did therefore any idea of a Supreme Court challenge to California’s redistricting is bound to fail, unless the Supreme Court’s conservatives make some novel exemption that carves out Texas as an exemption of sorts.
Come on Man! The Left loves discrimination that feeds their goals – stay in power no matter what it takes! If you gotta create a little salsa flavored district then so be it! Califate (yeah kinda like the Muslim Paradise) has been swirling the drain for decades now so what difference does it make who votes for Dems as long as Conservatives get overwhelmed and eventually run off! Viva la Fruits Nuts Berries and Beans in the Califate!
Assuming good faith on the part of the Democrats is always a bad bet. The party of JT doesn’t exist anymore and is unlikely to return.
I did a data analysis of California November 2024 voting. Data shows CA voted 40% republican but only had 17% representation in US House. Moving from 17% to even less to me represents an obvious move to further restrict conservative voters. Currently 9 seats of 53 R. Going to 4 seats should be thrown out. Hard Stop.
Why do Democrats presume that people of a certain ethnic group can only be properly represented by people sharing that same ethnicity? That is the height of racism. Should white folks demand they only be represented by white people? That would be racist. Well, then. Democrats constantly treat people as though they are robotic, mindless voting blocs, with no capacity for independent thought. Shameful. And quite racist.
Dems presume…. just like reps. Whiteys!
Turley seems to ignore the Texas redistricting effort which has similar racial intentions and Texas lawmakers have stated it is meant to keep Latino populations in check. If it’s ok in Texas it should be perfectly fine in California.
It’s notable that there is no certainty about any change or constitutional issue when Turley hedges his prediction with “may”, “could”, and one dissenting judge.
It also shows how big of an effect California’s redistricting effort in response to Texas is. They are effectively canceling Texas’ effort and that is why Turley is shining a spot light on this issue that is similar to Texas own redistricting effort.
The Dem mantra: The Ends Justify The Means.
Thank Republicans in Texas! They started this game.
Why do you need keep changing maps? Keep one in place, and so be it.
Gerrymandering – regardless of which party does it stinks to high heaven.
But it is not unconstitutional.
If we do not like that – we can amend the constitution.
That would be a mistake – the wisdom of the recent SCOTUS decision – and hopefully he forthcoming decision to find section 2 of the VRA unconstitutional is that it gets the courts out of politics.
Here is one accomplishment of trump according to one of his supporters…
“I feel liberated. We can say ‘retard’ and ‘pussy’ without the fear of getting cancelled… it’s a new dawn.”
Thank you DJT.
The least most freedom you are assured of is that you will allow those you hate.
If you will not allow others to say things that offend you, you should expect that they will not allow you to say things that offend them should they secure power.
We defend the free speech of Nazis because if Nazis can not speak in ways that offend us, then all of us are endanger of being silenced because someone takes offense.
Here is one accomplishment of Biden: He was/is a retard and a pussy.
Thanks for the deviation JT. Nothing going on of importance around here so you have to put a post that maybe, just maybe, there might be a problem with California redistricting.
trump is going to invade Greenland because he didn’t get the Peace prize. Really?
What kind of baby is this so called man?
Why can”t you let him write about what he wants and you choose whether or not to read it?
Trump is not going to invade greenland.
Just like Obama refused to rule out using Drone strikes against US citizens in the US, no president is going to remove from the table and option they are not going to use today.
The US has had an interest in Greenland apparently since 1860. We sought to buy it many times before. We took it over by force prior to WWII
And would do so again at the drop of a hat if that was a necessity.
That is reality.
The circumstances of the past have no relevance to the present.
Trump wants Greenland because he is either being pressured to acquire it by others below him or he has no idea what he is doing.
Somebody is whispering in his ear to take Greenland. Trump is too stupid to even know why he needs it. Europe will not allow the U.S. to take Greenland by force. The consequences would not be worth the cost and effort.
OOOOOOOO yeah george. NATO & EU are wimps. They can’t even protect what they have.
Greenland is not an independent member of NATO, but it is covered by NATO’s collective security guarantees because it is an autonomous territory within the Kingdom of Denmark, a founding NATO member since 1949.
Greenland is not part of the European Union (EU). It left the EU (then the European Communities) in 1985 after a 1982 referendum, primarily to regain control over its fisheries and exit the EU’s Common Fisheries Policy.
Trump is too stupid… and yet he is the POTUS. And you, a winey anon.
Without providing an opinion, state the reasons the U.S. has given for wanting Greenland. You can’t do this, so you babble instead of reading.
Strategic interest dates back even earlier, with U.S. officials discussing the purchase of Greenland as far back as 1867 and again in 1910. In 1946, President Harry S. Truman formally offered to buy Greenland for $100 million in gold, which Denmark rejected.
“trump [sic] is going to invade Greenland . . .”
Better that than China or Russia.
This is no surprise, Dems are racists – they are responsible for slaver markets and Jim Crow.