A state of “perpetual redistricting”

Last week, in a 6-3 decision authored by Justice Samuel Alito, the Supreme Court used Louisiana v. Callais to gut what was left of Section 2 of the Voting Rights Act. The ruling let states defend almost any racially discriminatory electoral map by claiming they were really just gerrymandering for partisan reasons. Justice Elena Kagan, writing in dissent, said the majority had rendered Section 2 "all but a dead letter."

The fallout came fast. Within 24 hours, Louisiana Governor Jeff Landry had suspended the state's May 16 House primary so the legislature could draw a new map, presumably eliminating two Democratic-held majority-minority districts. By Friday, Republican governors in Alabama and Tennessee had called for special sessions of their legislatures to potentially eliminate Democratic held congressional seats in their own states. South Carolina's governor appeared ready to redraw their state’s districts in the wake of the decision, but on Monday, decided against it. President Trump posted on Truth Social that Republicans could pick up "more than 20 House Seats" off the back of the ruling.

To make sense of all of it, I called up Mark Gaber, a longtime friend of mine and the Senior Director of Redistricting at the Campaign Legal Center, who has spent his career litigating—and winning—these cases. Our conversation, lightly edited for clarity and length, is below.

Kyle Tharp: So topline, what did the Supreme Court actually do last week?

Mark Gaber: The takeaway is that the Supreme Court took the Voting Rights Act, which since 1965 has protected voters of color from having their votes diluted and basically said that if a state has a partisan goal that's inconsistent with our traditional understanding of the Voting Rights Act, that partisan goal controls over the text of the Voting Rights Act.

In the early 2000s, the Supreme Court justices almost unanimously agreed that severe partisan gerrymandering was unconstitutional—they just couldn't figure out what test a federal court should apply. We went from that, to 2019, when the Court said federal courts don't have jurisdiction over partisan gerrymandering, to today with Justice Alito, and this has been a special project of his, essentially saying states have a constitutional right to engage in partisan gerrymandering, and we can't let some act of Congress, enacted pursuant to the 15th Amendment, get in the way of it.

It's head-spinning. It's 180 degrees from where we started. And it's all packaged in this veil of textualism and originalism that's so phony, because you'll go through the Voting Rights Act and not once will you see, "except if the state has partisan wishes that are contrary to what would result from following the VRA."

Kyle Tharp: What's the immediate fallout? It appears Louisiana has called off their upcoming elections. Alabama is calling its legislature into special session, apparently after the governor got a phone call from Donald Trump. In Tennessee, Sen. Marsha Blackburn immediately posted a map showing a fully red state.

Mark Gaber: Louisiana, obviously. We will know soon whether the result is zero or one Black majority district and what that district looks like.

Alabama is complicated, because Governor Ivey was correct in her initial statement that they're under a court order, and that court order wasn't just about the Voting Rights Act, it was also a constitutional violation finding about intentional racial discrimination. So that's not so clean as them just calling a special session. They can move quickly and try to get it vacated, and we'll see if they can.

In South Carolina, Governor McMaster, here's another state where they just got done defending this map at the U.S. Supreme Court against a racial gerrymandering claim, and now they're saying it would be appropriate to look again. Governor Lee has indicated he's open to a new map in Tennessee. Governor Kemp has signaled it's not going to happen in 2026 in Georgia, although perhaps in 2028, which makes the 2026 Georgia governor's election really important. And Texas, I would not be surprised to see them try this again in 2028.

Kyle Tharp: You spend a lot of time looking at these maps. Are some of these states, like Alabama, just impossible to draw without a Democratic district?

Mark Gaber: Mississippi can, as a practical matter, probably draw four white-majority Republican districts. Alabama could be difficult. Although with no restraints from federal law about what districts have to look like, it could just be some creative things. There's no requirement in federal law that these districts be contiguous. We could start seeing disconnected pieces of the same district throughout the state.

I think what we're really going to see is a state of perpetual redistricting. With each election cycle, if one party benefits, they will take that power and use it.

Kyle Tharp: Say more about that “state of perpetual redistricting.” Are there any institutional guardrails that may save us from that outcome? You've done a lot of work arguing around state constitutions. Are there citizen ballot initiatives that could block this?

Mark Gaber: The answer is yes, and we've accomplished it in a couple of states. We accomplished it in Utah, resurrecting their Proposition 4, and we're defending that in court still, but at least for 2026 there's a fair map that, if you look at it, looks sensible.

Other states have constitutional requirements of compactness, contiguity, respecting counties or municipalities. In Wisconsin, we defeated the gerrymandering of the state legislature because of the contiguity requirement in the state constitution. We're currently arguing in the Missouri Supreme Court about the gerrymandering there based on the compactness requirement in the state constitution.

So there are these options. They rely on state courts, and there's a variety of state court structures across the country. Some seem to work better for independence and upholding requirements than others. This can be a pretty tricky thing for state Supreme Court justices to throw out the legislature's most political thing it's done. So depending on the incentives there, that can be a difficult ask.

The trend we're going to see now is that a lot of the states that had these independent commissions were some of the blue states, and they are retreating from them for obvious reasons. That's unfortunate, because it's a good model, but it's the kind of thing that would really work a lot better if it were done at the national level.

Kyle Tharp: What else do you think is missing from most of the news and opinion coverage over the past few days?

Mark Gaber: That this also applies down-ballot. The Voting Rights Act applies to state legislative districts, water board districting in certain states, to city councils, to county boards of supervisors. Any electoral district is subject to it, and ostensibly still is. 

From my reading, Callais is only about partisan contests. So in partisan contests they made it perhaps a hollow promise. But since it's so focused on partisan preferences, [the ruling] really doesn't seem to apply to non-partisan offices. That's important, because where your government most affects your daily life is your local government.

Those down-ballot races are where talent for legislative and congressional races sort of bubbles up from, and we're going to need those people to be talented to win in this new context.

For 2026, it's hard to gauge what will happen. Definitely Louisiana will shift, and I could see Mississippi, South Carolina, and Tennessee all attempting to knock off Black incumbents. At the end of the day, it's going to be a depressing reduction in Black and Latino representation in Congress. It's sort of like seeing the end of Reconstruction again. What that must have been like, to just see that all slip away.

Last month, top liberal leaning YouTube channels racked up over 2 billion views on the platform, outpacing their right-wing counterparts. Here’s a chart of the top 50 partisan-leaning, political adjacent channels on the platform by views they received in April: