How the 120th Congress Can Crush the Gerrymandered Maps

For some time now, I have worried about what is going to happen next January. The Democratic Party seems very likely to win control of one if not both Houses of Congress in this November's midterm election. But we know from experience that President Donald Trump does not like to lose elections, and will resort to extreme measures to hold onto power if he does. I worry, therefore, that Trump might try something to stop the (likely) Democratic Congress from taking office: physically barricading them from entering the Capitol, perhaps, claiming (in his classic unspecified, unsubstantiated way) fraud in their elections. This would set off a crisis of legitimacy—a serious dispute about who can call themselves the government of the United States.

Two recent court decisions, however, make me think I might not have to wait until January to see these worries realized. On April 29^th, the United States Supreme Court decided a case about the Voting Rights Act, Louisiana v. Callais. Exactly what the Court held in Callais is slightly unclear; the majority opinion is somewhat coy about whether the ruling was based on a principle of constitutional law, or was only an interpretation of the Voting Rights Act itself. In practical terms, though, Callais held that Southern states are not required to create “majority-minority” congressional districts. This had long been understood to be one of the chief requirements under the Voting Rights Act, and was seen as an indispensable tool for ensuring that any African-Americans are elected to Congress. (It would not be so indispensable, perhaps, if Southern white voters would ever support black candidates.) 

Callais puts an end to all that. And in the wake of the ruling, many Southern states have taken extraordinary action to prevent the horror of electing so much as a single black person to the next Congress. Governor Jeff Landry of Louisiana (the state directly involved in the Callais litigation) promptly suspended the ongoing primary elections in that state, so that the state legislature can destroy the majority-black district in Baton Rouge. Other Southern states including Alabama, Mississippi, and South Carolina are considering adopting new maps—outside of the usual decennial redistricting cycle—that would eliminate their only black representation. Tennessee already adopted new maps eliminating the majority-black district in Memphis, which was poised to elect state representative Justin Pearson to Congress.

Meanwhile, last Friday the state Supreme Court of Virginia invalidated the recent state constitutional amendment permitting the adoption of an extreme partisan gerrymander in favor of the Democratic Party, which would likely have resulted in a 10-1 congressional delegation. The Court's decision rested on a minor procedural technicality. The way constitutional amendments happen in Virginia is that they must first be approved by the state legislature in two consecutive sessions, and then approved by a majority of the voters in a statewide referendum. The referendum on the proposal to circumvent the state's independent districting commission took place on on April 21^st, and the voters approved the proposal by a narrow 51.7% to 48.3% majority.

The state Supreme Court, however, held that the amendment had never been properly proposed. The question is one of timing. The relevant provision of the Virginia Constitution says that, once the General Assembly has approved a proposed amendment the first time, the proposal is referred to “the General Assembly at its first regular session held after the next general election.” In this case, the General Assembly approved the amendment for the first time on October 29^th, 2025—a response to actions by Texas and some other Republican-controlled states redrawing their maps, at Trump's behest—and then again on January 16^th, 2026. There had been a state legislative election on November 4^th, 2025. 

Sounds good, right? Not so fast. You see, early voting was already underway by October 29^th. According to the state Supreme Court, that means that the 2025 general election had already started, and therefore could not be regarded as the “next” general election after the first approval of the proposed amendment—even though election day itself was not for another week. Instead, that will be the election held in November 2027, meaning that this referendum could take place no sooner than the spring of 2028. 

Taken together, these two court decisions will have a substantial effect on the composition of the 120^th Congress. A recent analysis from polling guru G. Elliott Morris suggests that the two rulings have likely cost the Democrats six seats in the next House of Representatives. Democrats will now have to win the election by something like four points nationally in order to take control of the House. And although the rules that govern the composition of Congress have always been subject to this kind of partisan contestation—particularly in the last couple of decades—there is something acutely intolerable about having a Congress shaped by Callais and by the invalidation of the Virginia referendum.

Let's start with the Virginia decision. It is almost certainly wrong on the merits. When the state constitution says “next general election,” it is best understood to mean the traditional Election Day (i.e. November 4^th, in this case), not the start of early voting. More importantly, though, the decision is a gross betrayal of the principles of popular sovereignty—principles which are, extremely explicitly, a part of the Virginia Constitution itself! Article I, Section 2 of the state constitution states that “all power is vested in, and consequently derived from, the people, that magistrates are their trustees and servants, and at all times amenable to them.” Section 3, meanwhile, says that

whenever any government shall be found inadequate or contrary to [its] purposes, a majority of the community hath an indubitable, inalienable, and indefeasible right to reform, alter, or abolish it, in such manner as shall be judged most conducive to the public weal.

These provisions were a part of the Virginia Declaration of Rights, written by Founding Father George Mason and adopted on June 12^th, 1776, a few weeks before the national Declaration of Independence. They remain in force as part of the Virginia Constitution to this day.

What they mean, plainly enough, is that the People of Virginia have the right to change their system of government, entirely outside of any kind of amendment process established by law. That is what it means for this right of the People to be “inalienable”: it cannot be given away, and therefore cannot be limited by law. The process established in Article XII of the state constitution is one means by which the People of Virginia can rewrite their state's fundamental laws. But, per Mason's Declaration of Rights, they are not obliged to work through that process.

Even if we accept the state Supreme Court's interpretation of the Article XII process, therefore, it shouldn't matter. The fact that the People of Virginia approved the amendment, in the end, is all that matters. Even if the process by which the amendment was placed before them was deficient, the People still had the right to act in their capacity as the true sovereign. Alternately, we can understand the People—who, as sovereign, are also the supreme judge of their own state's laws—as having rejected the very argument adopted by the state Supreme Court (which had already been made in advance of the referendum). Either way, the Court has wrongly usurped the ultimate sovereign power of the People of Virginia.

Now let's talk about Callais. The specific holding of the case, ostensibly, is about how a plaintiff under the Voting Rights Act can show a racial gerrymander. In 1982, the VRA was amended to make clear that it applies not only to intentional discrimination, but also to electoral practices with a so-called “disparate impact” on the political power of racial minorities. This was a response to a 1980 Supreme Court case, Mobile v. Bolden, which had held exactly the opposite. Justice Alito’s majority opinion in Callais effectively nullifies the 1982 VRA amendments. The Fifteenth Amendment only applies to intentional discrimination, Alito says, and therefore if the VRA really did what the 1982 amendments said, it would exceed Congress’s power to enforce the amendment. Therefore, the 1982 amendments must be understood as not having done what they were plainly meant to do.

Therefore, in order to show that electoral maps violate the Voting Rights Act, a plaintiff must show that the mapmaker (typically the state legislature) acted for the specific purpose of discriminating on the basis of race. They must show, therefore, that there can be no explanation for the maps other than race. In particular, they must show that the map cannot be explained as a partisan gerrymander. Citing a decision from two years ago, Alito wrote that, when a state defends its maps as a partisan rather than a racial gerrymander, the plaintiff “must disentangle race from politics by proving that the former drove a district’s lines.” Now it just so happens that American politics is heavily polarized by race, especially in the South; Southern whites overwhelmingly favor the Republican Party, and the vast majority of African-Americans throughout the country vote for Democrats. Callais says that it is perfectly permissible to discriminate against those black Democrats, as long as you are discriminating against them as Democrats, not as black people. Of course there is no practical difference between the one and the other.

As Madiba Dennie has explained, moreover, Callais takes place against the backdrop of an understanding of the Fifteenth Amendment (which guaranteed black suffrage, and which the Voting Rights Act is meant to enforce) that turns it on its head. On this view, it is actually unconstitutional to draw districts on the basis of race, even if your aim is to increase minority representation. The only exception is where taking account of race is necessary to remedy previous de jure racial discrimination by law. But Callais makes it effectively impossible to prove anti-black discrimination in districting. It may, therefore, be not only permissible but mandatory for states to get rid of their existing Voting Rights Act districts and obliterate black representation.

The combined result is that this Court has so perverted the Voting Rights Act and the Fifteenth Amendment that they serve almost the opposite of their intended function. These provisions were adopted, nearly a century apart, for the express purpose of guaranteeing the political rights of African-Americans. After Callais, they cannot be used for this purpose. Instead they function to limit black political power. 

This is grotesque; it is also significant for how we should understand the United States government as a whole. It is hardly controversial to say that American democracy began in 1965, with the passage of the Voting Rights Act. Before that time, with the brief exception of Reconstruction, black Americans had been essentially incapable of exercising real political power. Today, we rightly understand that a whites-only “democracy” is no democracy at all. But if all of this is right, and the Supreme Court has just nullified the Voting Rights Act and the Fifteenth Amendment—inverted them, even—can we consider America a democracy today? If, once the effects of Callais are fully felt, there are virtually no black people in Congress, can we consider that Congress to have any kind of popular legitimacy?

These are sobering thoughts. What is to be done?

There are plenty of proposals in the air for a legislative response to Callais. Jamelle Bouie’s recent column about how Callais will increase sectional tensions and undermine the Union offered a good summary of the options:

Ultimately, political reform will take the shape of a partisan project: a specific, party-driven strategy and not a broad bipartisan compromise. This could be passage of a stronger, revitalized Voting Rights Act along with a national ban on partisan gerrymandering and middecade redistricting — in other words, some combination of the John Lewis Voting Rights Advancement Act and the stillborn For the People Act — or it could be something more radical, like expanding the size of the House (which has been capped at 435 members for nearly a century), legalizing electoral fusion or moving the country toward proportional representation.

Of course, the same Supreme Court that decided Callais would almost certainly make itself an obstacle to any such response. Fixing this mess will therefore require “trim[ming] the authority” of the Court, perhaps adding new justices so that the Callais majority is no longer a majority.

These are all great ideas. But there is a problem. Democrats will not be in a position to pass federal legislation until 2029 at the earliest. Even if they win control of Congress this November, Trump will still have his veto pen for the next two years. But the crisis may well arrive sooner than that. In particular, if we are worried about the seating of the next Congress, there is no way that any legislative response could arrive in time to help.

Here’s an idea, then, for how the next Congress can defend multiracial democracy without needing to pass legislation. Article I, Section 5 of the Constitution makes each House of Congress the “Judge of the Elections, Returns, and Qualifications of its own Members.” Meanwhile, Article IV, Section 4 says that “The United States shall guarantee to every State in this Union a Republican Form of Government.” This provision—known as the Guarantee Clause—has long been held to be unenforceable in court—“non-justiciable,” to use the technical term. This rule dates back to the (wild) 1849 case Luther v. Borden, in which the Supreme Court declined to get involved in the recent Rhode Island civil war. 

Instead, making good on the guarantee of republican government is left largely to Congress—and not only through the use of its legislative powers. For, as Chief Justice Roger B. Taney (yep, same guy) put it in Luther v. Borden, “when the senators and representatives of a State are admitted into the councils of the Union, the authority of the government under which they are appointed, as well as its republican character, is recognized by the proper constitutional authority.” In other words, Congress judges the republican character of each state every time it seats that state's elected representatives. This also implies that Congress can refuse to seat a state's representatives, if it thinks that state's government is not republican. And it has in fact used this power, most notably during Reconstruction: the Southern states' delegations were not seated until they had re-established legitimate, republican government to the satisfaction of Congress.

Suppose, then, that a majority of the House of Representatives thinks that Callais was wrongly decided. That would mean that the elections for Congress in states like Tennessee, which have eagerly exploited Callais, were conducted unlawfully, even unconstitutionally. It might even imply that the governments of those states are no longer republican in character: surely, after all, the Fifteenth Amendment guarantee of black suffrage is an essential part of what republican government means in America today. Accordingly, Congress could refuse to seat any of Tennessee's nine (all-white, all-Republican) representatives.

But what about Callais? Can't these states like Tennessee say, accurately, that they are only complying with the judgments of the Supreme Court? Yes, but Congress is the judge of its own elections. This power, which is absolute and unreviewable, allows Congress to assert its own view of what the Constitution requires in this space. It is not obliged to follow the Court's interpretation of the law, for each branch is entitled to act on its own view of the Constitution when exercising its own powers. This is, after all, the very same logic that justifies the practice of judicial review.

The same power could be employed, with the help of the relevant state officials, to defend the sovereignty of the People of Virginia. It is well established that a court order issued without proper jurisdiction is a legal nullity, and does not need to be complied with. Lack of jurisdiction is, for example, a valid defense to a contempt of court charge. Ordinarily we defer to the courts as to the scope of their own jurisdiction. Strictly speaking, though, this is only a courtesy. We are able to defer to the courts as to the scope of their own powers because they have, traditionally, taken great care to observe the limits of those powers. In principle, however, if the courts are willfully overstepping their bounds, other organs of government are entitled to withdraw that courtesy and reach their own conclusions. 

Suppose, then, that relevant state officials were to conclude that the Virginia Supreme Court's decision was not only wrong on the merits but ultra vires: that, in usurping the sovereign powers of the People of Virginia, it went beyond the Court's lawful authority. That would justify treating the decision as null and void, and holding the November elections using the maps approved by the People. Now someone might well object that this had been improper. But who gets to resolve the dispute? That's right: Congress, and nobody but Congress. (It would be rich, moreover, for Republicans to cry foul here, given their party’s habit of ignoring either state supreme courts or the results of popular referenda, whichever has suited their partisan ends in a particular moment.)

How would this all work in practice? Andy Craig's recent essay on the potential for mischief at the seating of the next Congress provides a handy guide. It is for the 120^th Congress, not the 119^th, to judge elections to the 120^th Congress. This creates a strange bootstrapping process, because of course we must know the answer to these questions before we can know who is entitled to give that answer. The rule is that the House clerk first identifies all those with facially-valid certificates of elections from their states' election authorities. These persons become the provisional House, which then judges any disputes about membership. 

Although it has been traditional for individual members whose elections are contested to recuse themselves from judging those disputes, this is not obligatory: the disputed members are, in principle, entitled to participate. This would matter a lot, if whole state delegations—and lopsided ones, at that—were contested. The Tennessee delegation, for example, would be entitled to vote on whether they should be excluded due to Tennessee's racial gerrymandering. For this plan to work, therefore, the Democrats would need to control the House even despite the effect of what Tennessee, and other Southern states, are doing in the wake of Callais. Conversely, however, if Virginia were to ignore its Supreme Court and use the 10-1 map, the delegation elected using that map would also be entitled to participate in this whole process.

Of course what I am proposing here is radical. The last time that the congressional delegations from entire states were excluded on this kind of theory was Reconstruction, and that is not an accident. Having this kind of fight about who is the legitimate Congress is, to say the least, not good for social cohesion! That is part of the reason why Congress does not normally flex this particular muscle, instead allowing election law disputes to be resolved through the court system in regular fashion. But none of this was a worry during Reconstruction: the Civil War had already happened, social cohesion had already been destroyed. The Reconstruction Congress knew that it was in a revolutionary moment. The only way out was through.

Whether today’s Democratic leaders understand that we are in such a moment today is far less clear. If the Democrats do win the House notwithstanding Callais and the Virginia decision, I am sure there will be enormous inertia prompting them to just leave well enough alone. But that would mean acquiescing in the end of multiracial democracy in the South. Yes, the Democratic Party can probably win some elections even without the Voting Rights Act. But the political rights of black Southerners are themselves worth fighting for. They have the right to have their voices heard, to be a part of the overall political calculus that determines the course of our nation. Even at the cost of a full-blown legitimacy crisis, this may not be a fight we can conscionably avoid.

It may not be a fight we can avoid at all. As Craig points out, there is a very real chance that Republicans will try some sort of chicanery around the seating of Congress. Republicans are already suggesting that Callais means that every VRA district in the country is illegal. That could lead them to try an inverted version of the plan I have sketched out here: they might challenge the delegations of any states that have not used Callais to attack minority representation. At the very least, therefore, congressional Democrats should have something like the plan I propose ready to be deployed if the Republicans set off a crisis of their own. If Republicans seek to contest the validity of delegations from blue states like New York or California, Democrats both can and should respond in kind. No, the problem is not that some states did follow the Voting Rights Act, but that some states did not. It is the latter, not the former, whose elections were unlawful, and whose delegations should be excluded, if any.

The crisis of legitimacy is upon us. We may not be able to prevent it, but that doesn't mean we can't win it.

Featured image is John Lewis, by Mobilus in Mobili