On Wednesday and Thursday, Democrats held their first debates of the primary season. The first debate came hours before and the second debate came hours after the Supreme Court upheld partisan gerrymandering in a way that is set to entrench incumbent power and harm the First Amendment rights of voters for years to come—unless action is taken promptly. Despite that, gerrymandering was mentioned twice by a total of two candidates over the course of the entire four hours of debating. Modern voting rights efforts in general were barely mentioned a handful of times over both nights.
Those who care about democracy and fairness need not despair, though, and the Democratic field need not stay silent. Voters and candidates should now refocus energy on an institution that might do something about it after the 2020 elections: Congress. Indeed, in his majority opinion in the partisan gerrymandering case, Chief Justice John Roberts indicated that it is within Congress’ purview to address the issues that were before the court.
Most Democrats who have spoken out on the issue have supported a congressional mandate for independent redistricting commissions in all 50 states. This is one of the key proposals in the revolutionary voting rights bill, H.R. 1, passed by the House of Representatives earlier this year but doomed in the Republican Senate. Where proponents of H.R. 1—and apparently every single candidate in the Democratic field—fall down, though, is on the question of drawing districts that don’t just remove roadblocks for minority voters but actively protect those voters who have been historically marginalized.
Democrats can do even better than H.R. 1’s requirement of nonpartisanship, and activists should demand they do so. If we want electoral maps that are fair for everyone, it’s not enough to demand neutrality. That leaves out the minority protections that are necessary given our nation’s ugly history of violently enforced voter intimidation and suppression. Remedying that historic voter exclusion is difficult. We cannot double count the ballot of a black voter whose vote was suppressed decades ago. We also cannot find a black candidate who was deterred from even running for office by a racially biased at-large electoral system and now say that he wins if he gets 45 percent of the votes. Yet, the ugly history is there, and its negative effects continue today. Again, though, there are fixes that take into account complex legal and legislative problems that have been building for years.
When Congress amended the Voting Rights Act in 1982 it imposed a duty on states to ensure that minorities have the same “opportunity … to elect representatives of their choice” as do other voters. Yet in the context of redistricting, that promise is currently fulfilled only erratically and incompletely, in part due to the Supreme Court’s imposition of a different duty on states—the duty to avoid classifying on the basis of race. The court has forbidden the use of race as a “predominant” factor in redistricting decisions, even when done so to benefit racial minorities. Thus, a mapmaker wishing to comply with the law—to fulfill both Congress’ and the courts’ views of the Reconstruction Amendments—must thread the tiniest of needles. For instance, she must avoid drawing a map that too tightly packs nonwhite Hispanic voters in Texas into a single district, thereby denying them the opportunity to elect multiple candidates rather than just one. On the other hand, if she carefully ensures nonwhite Hispanics are divided evenly between two districts, she may have violated the court’s racial gerrymandering prohibition on treating race as a “predominant factor.”
Indeed, observers have become rightly concerned that the courts might make this even harder if they decide to strike down Section 2 of the Voting Rights Act, the part that imposes a duty to ensure equal opportunity for minorities. The Supreme Court has promoted, for the past three decades at least, a view of the equal protection clause in which the elimination of formal racial advantages and disadvantages is the goal. But Congress, in Section 2, was promoting a view of the equal protection clause in which the elimination of structural, social, and historical racial disadvantage is the goal. Given this tension between Congress and the courts, it’s not enough to simply assert, without further instruction—as the current version of H.R. 1 does—that newly mandated redistricting commissions must do the nearly impossible: comply with the VRA and the court’s current view of the Constitution. In fact, if Congress fails to reconcile the duty to protect historically subordinated minorities with the court’s principles of neutrality, then there will be no meaningful “Voting Rights Act compliance” left for redistricting commissions to take into account.
There is a solution, though. Congress could, among other necessary fixes to H.R. 1, define what “equal opportunity” in voting means. Congress could clearly state that equal opportunity means equal competitiveness. What this means is ending harmful cracking and packing and replacing it with line-drawing that seeks to give historically marginalized minority voters, to the extent possible, the same political clout other groups get. Again, this means ending harmful cracking and packing. When voting groups are aggressively “cracked”—split into multiple districts—then those voters have a harder time electing a candidate of choice because their collective voting power in the new district is lessened. Similarly, when voting groups are aggressively “packed” into a single noncompetitive district, they do not get to elect as many candidates because their voting power is consolidated in one place. In order for a minority group to have an equal chance to elect candidates of choice, there should be “opportunity districts,” in which the level of competitiveness of the district is similar to the level of competitiveness nonminority voters would typically expect to experience, in a world without partisan gerrymandering. In other words, suppose that the typical district in a given state would end up with a vote breakdown of about 52 percent for one party and to 48 percent for the other. In such a state—under this proposed version of redistricting reform—map drawers would try to create districts that included enough black voters so that their candidates of choice would be expected to get somewhere between 48 and 52 percent of the vote—as opposed to an overly packed 65 percent of the vote or a severely cracked 25 percent of the vote.
This definition of equal opportunity would satisfy the Supreme Court’s view of equal protection because minority communities get no advantage under this definition: They get the same numerical level of competitiveness as majority communities. At the same time, conscious attention is paid, at the structural level, to minority opportunity in politics. In other words: Minority racial groups will get extra attention but only equal opportunity.
Ultimately, Congress—and the Democratic presidential field—must seize the moment and respond to voters’ deep frustration with unfairness in elections, not only by attacking partisan gerrymandering but also by doing something about the racial injustices that undermine Americans’ sense of belonging and inclusion in politics.