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.
OT – It’s National Popcorn Day! Hurray!
I simply hope that the “swing” Justices (into which group I place CJ Roberts, Kavanaugh, Gorsuch, and Coney-Barrett) are reading the good Professor’s articles.
The mental gymnastics that gives you “it is Racism only if it dis-empowers a minority”
*As long as the minority is not white
Fixed it for you.
Or empowering a minority, as we saw with Saddam Hussein. During his presidency, positions of power in the country were mostly filled with Sunni Arabs, a minority that made up only about a fifth of the Iraqi population.
Gerrymandering in California is not going to happen. Minnesota is now the new Fort Sumter, SC and Tim Walz is their Jefferson Davis. US Civil War #2 is here, and all other news is tertiary
The US Civil War was the nation’s bloodiest and most divisive war, and it began at Fort Sumter in Charleston, South Carolina, on April 12, 1861. After South Carolina seceded from the Union, much like Minnesota is seceding from the US by claiming the US Feds leave Minnesota, the Confederacy demanded that the United States evacuate its fort in Charleston Harbor. Tim Walz is demanding the US Feds evacuate Minneapolis’s Federal buildings, the Whipple Bldg and surrounding regions. Lincoln refused, provoking a Confederate attack. Trump is refusing Walz’s demand, provoking Democrats sponsored an anti-ICE insurrectionists attacking Fed troops. The outbreak of war in 1861 forced wavering states to choose between the Confederacy and the Union, and four more—Virginia, North Carolina, Arkansas, and Tennessee—now seceded. In 2026, Illinois, Washington, Oregon, California, New York and Virginia are sure to follow. Virginia’s new Governor Spanberger, a commie’s commie, has already rescinded the previous Governor’s order (Glenn Youngkin) of police cooperating with the US Feds.
Jefferson Davis had extensive military experience before he assumed the presidency of the new Confederate States of America. A graduate of West Point, he had fought Indians for several years along the frontier and later served with distinction in the Mexican War. He had experience in Congress as both a representative and senator, and had been secretary of war under President Franklin Pierce. Tim Walz claims to have military experience, if one considers the national guard as military experience, and lied extensively about his “military” service. Walz was a member of the U.S. House of Representatives from 2007 to 2019. He was a failed Democratic nominee for vice president in the 2024 along with Democrat U.S. presidential nominee Camel-uh Harris, Hindu Indian miraculously turned black.
Jefferson Davis expressed his hope that separation from the Union would come peacefully. But he warned, “If this be denied to us . . . it will but remain for us, with firm resolve, to appeal to arms.” Tim Walz is following in the foot steps of Jefferson Davis, along with his butt plug friends Mayor Frey of Minneapolis and failed CNN mistress Don Lemon.
forget Newsom. He will be hiding under his wife’s bed when Minnesota Democrats kill their first US Federal Officer.
https://www.americanhistory.si.edu/explore/exhibitions/price-of-freedom/online/civil-war/civil-war-begins
Before using the Fort Sumter as an example, it is helpful to understand why Charleston defended its harbor based on the intent of the Buchanan etal. In the current case, Walz, Frey, and the DNC leadership have ascertained they are not subject to Federal Acts of Laws – even if their violation of those acts is being paid for by everybody but themselves (look where the money is coming from and who is profiting).
In that instance, December 9, 1860, the commander of another critical harbor blockading Fort Moultrie, Major Robert Anderson (later the commander of Fort Sumter) wrote, “Fort Sumter is a tempting prize, the value of which is well known to the Charlestonians, and once in their possession, with its ammunition and armament and walls uninjured and garrisoned properly, it would set our Navy at defiance, compel me to abandon this work[Moultrie], and give them the perfect command of this harbor.”
His “our Navy defiance” was, of course, illustrated by the January 5, 1861, when the war ship, Star of the West, departs from New York with some 200 reinforcements and provisions for the Sumter garrison to blockade the largest commercial port of the soon to be “Confederacy”. In this case, it was to (illegally) enslave the commerce of the south. In the Minneapolis case, it is to protect the “open border” of illegal immigration funding $9BB to Somali Terrorist Organizations (US Tax dollars) in defiance of the Immigration and Nationality Acts – enacted by US Congressional Actions and signed by US Presidents [in other words, the law]. To give an idea of relative value, the US Coast Guard budget for fiscal year 2026 is approximately $14.4BB. The two are quite different, though the actions of the Governor, Mayor, and The Democratic Party seem quite similar over the years – the causes are completely different.
One important fact. Secession is not prohibited by the constitution and is fully constitutional, and secession is constitutional per the 10th Amendment.
Lincoln illicitly and unconstitutionally denied the power of secession and the right to secede.
Just as Roe v. Wade was retroactively rescinded and revoked after 50 years by Dobbs, every act of Lincoln and his successors, subsequent to Lincoln’s illicit and unconstitutional denial of secession, remains unconstitutional and must be rescinded and revoked, beginning with the “Reconstruction Amendments” of Karl Marx, which were ratified with a gun to America’s head.
America must be returned to the freedom of the original Constitution and Bill of Rights.
“Secession is prohibited because secession is not prohibited.”
This is the irrational rationale of those anti-Americans who oppose the Constitution.
People must adapt to the outcomes of freedom.
Freedom does not adapt to people.
Dictatorship does.
While Trump and MAGA are destroying NATO Turley keeps running interference.
NATO wreck it’s self years ago. They fight tooth & nail to meet their funding comment.
While we fund their protection.
Trump IS NATO. the rest of ‘nato’ are useless.
Congress should establish a bi-partisan commission to establish detailed and neutral criteria, esp. based on existing geographical lines, for drawing up congressional districts. The federal government has an obvious interest in dosing so, since the composition of the most important branch of the federal government is determined by the results of the state districting. Then the federal courts should follow their recommendations in evaluating the constitutionality of the new districts. This is the only way out of the problem of the continuing effort to game the system.
Careful, :edwardmahl. What you may be asking for is “bi-partisan commission” appointed by the ruling party (with simple majority) to be executed by the Autopen and ruled by the OSF (https://en.wikipedia.org/wiki/Open_Society_Foundations) funded and purchased Judges. There is a reason these powers were left locally in the creation of the US Constitution. While it may be within the power of NYC and VA voters to choose sole power oligarchy to create enslavement of their own freedom, at least those blights are limited.
@Paul
Precisely. Let them. Just don’t put them in a position of power again to revoke those separations, because they will, and happily. The modern left is no longer sane.