,
13 tweets,
3 min read
Read on Twitter
Today's SCOTUS decisions in the gerrymandering and census cases are foreshadowing the coming collision between judicial review and political reality. The conflict at the heart of both cases will continue, and at every escalation the Court will have no choice but to weigh in.
As these decisions showed, the Constitution permits political parties to distort elections in their favor, so they may win elections while losing most the votes. A party with the minority of support can have majority of power, if it can design elections that achieve that result. 
Though, limited exceptions do apply. While political parties can lawfully skew elections in their favor, they cannot do so by suppressing votes based on certain intrinsic characteristics, most notably race. In short: political discrimination is okay, racial discrimination is not.
But in the U.S. today, one of the two political parties is only able to exist by obtaining an electoral majority from voters of a single race. At some point, if not already, the result will be that there is no meaningful difference between political and racial discrimination.
To have any hope of winning elections, Republicans must secure as many white voters as possible – and must ensure that as many voters as possible are white. That is political reality.
But with each election cycle, the GOP's task becomes harder, and harder. Because with each passing year, the American electorate becomes more racially diverse, and more educated. The demographic math is fatal to Republicans.
And so, as in the census case, Republicans will continue to seek ways to decrease the proportion of non-white voters. They have no choice; in order for Republicans to maintain their hold on power, the demographics of voters cannot match the demographics of US citizens.
Under the Thomas/Gorsuch/Kavanaugh/Alito/and-sometimes-Roberts Court, Republicans are free to implement electoral schemes that allow the GOP to win without ever obtaining a majority of votes, so long as they do so without explicitly stating an intent to suppress non-white voters.
These Republican-favoring election schemes will necessarily have the effect of suppressing the voting power of non-white citizens – in current U.S. politics, no other result is mathematically possible. But this is a constitutionally-acceptable consequence.
But achieving racially disparate results while using only race-neutral means is a tricky bit of policy to pull off, and always harder than the alternative. Inevitably, Republicans will design election systems with race in mind, as a proxy for which votes to favor and disfavor.
The Court's rulings today, and its current line-up, mean that Republicans will be allowed to implement election schemes that disproportionately maximize the power of white voters–and minimize the power of non-white voters–so long as the polite fiction requirement has been met.
When implementing pro-GOP elections schemes, Republicans must maintain a polite-enough fiction that the racially discriminatory results were just a side effect, and not the original intent. Chief Justice Roberts is the only judge of whether the fiction was polite enough.
In cases where pretext gives way to open admission, or the deniability becomes decidedly implausible, Roberts will still step in. Otherwise, Republicans are free to implement any GOP-favoring election scheme they manage to pass, no matter how racially discriminatory the result.
