The “fundamental right” to privacy affects not just the right to an abortion, but the right to contraception and LGBTQ equality. If the Supreme Court of the United States overturns Roe v. Wade, then many other rights that may seem unrelated are at risk. No matter what the final opinion actually says, such a dramatic move would signal that this Supreme Court is willing to revisit your existing rights unbound by the doctrine of stare decisis.
Since “the switch in time that saved nine,” the U.S. Supreme Court has been a place where “discrete and insular minorities” could find equal protection under the law. If it wasn’t clear already, that era of expanding civil liberties is over. The Supreme Court is poised to return us to an era where an individual’s right to bodily autonomy is bestowed by the government through the democratic process—not the Constitution. If the Supreme Court overturns Roe v. Wade, then the battle for those rights will begin and end in state legislatures.
The current prospect of state legislatures being places where the 14th Amendment principle of equal protection under the law is held sacrosanct feels daunting. As a Texas Senate staffer once quipped to me in the Texas Capitol, “they aren’t known for being great constitutional scholars in here.” Achieving that legislative reality for historically protected classes is likely to span a generation in a best case scenario. Additionally, the continued assault by state legislatures on the right to vote means there is a fierce urgency of now.
However, America has been here before, and though the road is long, there is hope. The U.S. Supreme Court that upheld the New Deal and ushered in modern civil liberties through the 14th Amendment only happened because of the work voters began in state legislatures during the Progressive Era. For that to be a reality again, we must address racial disparities in voter turnout. We must recommit now before the legal barriers get any worse.
Voter turnout in state house districts of color lags dramatically behind house districts that are predominately white. There are myriad historical, cultural, and downright suppressive reasons for this. The reasons range from the mundane to the high-profile. For instance, often a county has fewer polling locations, not enough election workers, or a lack of transportation. In other instances, the U.S. Supreme Court chooses to see districts that are 85-90 percent black or Latino and 55-60 percent white as “partisan” rather than “racial” gerrymandering.
In Texas, each house district has roughly 194,000 people. However, in the 2018 midterms, twice as many voted in North San Antonio as opposed to South San Antonio (HD 122 = 81,973; HD 119 = 46,249). In Dallas, two and a half times as many people voted in Highland Park as opposed to Fair Park (HD 108 = 93,694; HD 100 = 36,958). In Houston, three times as many people voted in River Oaks as opposed to Sharpstown (HD 134 = 87,306; HD 137 = 28,292). In rural Texas, twice as many voted in Kerrville as opposed to the Rio Grande Valley (HD 53 = 76,958; HD 37 = 40,099).
In this 2018 midterm, Ted Cruz defeated Beto O’Rourke by 214,921 votes. If turnout doubled in just these four districts of color, an additional 151,598 people would have voted. If turnout in these four districts of color were equal to turnout in the four white districts, then 339,931 more people would have voted. Fifty-eight of the 150 state house districts have populations that are greater than 70 percent non-Anglo. If people of color voted in the same proportions as the white population, Texas would be a very different state.
While the Texas Legislature can make districts that are 85-90 percent people of color, they cannot gerrymander a statewide office. Statewide offices have the immense power to veto bills (Governor), single handedly control the entire Senate (Lt. Gov), or decide whether to defend a law the legislature passes (Attorney General). Gerrymandering can reduce people of color’s representation in legislatures, but they cannot make a person of color’s vote only count three-fifths of a white vote in a statewide race.
The problem of gerrymandering is as much psychological as it is structural. Many people say, “we’re all packed into one district. My vote doesn’t matter.” Frankly, that is how a clinically depressed person thinks. A more empowered way to think of it is like a lender. If a borrower owes a lender $10,000, but instead pays only $7,500, the lender wouldn’t throw the $7,500 in the trash and give up. The lender is also highly unlikely to accept $7,500 and consider the debt settled. A lender is more likely to enlist an army of debt collectors and seize property and bank accounts. The only difference between gerrymandering and lending money is that we are not lending money, but power. We the sovereigns must find five friends and collect the debt.
American history is replete with examples of voters prevailing, including overcoming gerrymandering. James Madison, a Federalist at the time, overcame Patrick Henry’s attempt to end his career by gerrymandering Madison into an Anti-federalist district. Prohibitionists overcame an industry’s hold on the party in power by running “dry candidates” in the primary of whatever party was in power in that state. Andrew Young overcame gerrymandering by forming a cross-racial coalition to become the first African American elected to Congress in Georgia since Reconstruction in 1972. That same year, Texans overcame gerrymandering and replaced half of the state legislature after the Sharpstown scandal.
In all four instances, the protagonists were not the candidates, but the voters. In each historical instance, constituencies of ordinary people organized themselves and overwhelmed the entrenched powers. Those voters adapted and overcame the legal and structural barriers of their time. They knew what we must know: no one is coming to save us but us.