Jurisprudence

Republicans May Revive the Most Dangerous Kind of Gerrymandering

Woman standing at a voting booth amid rows of voting booths that say "I voted!"
Malapportioned districts could ensure that some ballots count more than others. Michael Ciaglo/Getty Images

Across the country, legislators are carving up their states along political and racial lines to create new districts for the 2022 election. The lawmakers now have sweeping discretion to entrench their own parties’ power thanks to the Supreme Court’s conservatives who have greenlighted partisan gerrymandering and abandoned real limits on racial gerrymandering. Republicans are aggressively diluting the votes of Black and Hispanic residents in diverse states like Texas. Meanwhile, Democrats in blue states like Illinois are packing GOP voters into a few deep-red districts (though most support a federal ban on the practice). However, the most distorted districts of the next election cycle may be in South Carolina, a state whose redistricting process has received little national attention thus far. That’s because South Carolina lawmakers may be able to pull off an extreme gerrymander next year by doing nothing at all.

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In fact, the state’s current maps are worse than gerrymandered; they are malapportioned, with wildly uneven populations across legislative and congressional districts. Malapportionment is the original and most insidious form of partisan redistricting because it gives certain voters in a state far more influence over elections than others simply because of where they live. The Supreme Court outlawed malapportionment in 1964’s Reynolds v. Sims and Wesberry v. Sanders. But in a lawsuit filed last week, the ACLU and the NAACP Legal Defense Fund alleged that South Carolina is attempting to revive the practice by refusing to update their maps, effectively running down the clock on the 2022 election. The case could test whether this Supreme Court remains committed to the bedrock democratic principle of one person, one vote. Alarmingly, it is an open question whether five justices are willing to uphold Reynolds and Wesberry.

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When Americans think of gerrymandering today, they typically envision what’s happening in Texas and Illinois: politicians choosing their voters by dividing them up into districts with roughly equal populations but unequal racial or partisan compositions. For most of American history, though, the practice was more insidious. Legislators routinely created districts with divergent populations, placing far more voters in urban districts than rural ones. As J. Douglas Smith documents in On Democracy’s Doorstep, these gulfs in population were staggering. In 1960, for instance, Vermont had House districts with as few as 38 people and as many as 33,000. New Jersey’s Senate districts ranged from 48,555 people to 923,545, Georgia’s from 13,050 to 556,326, Idaho’s from 915 to 93,460, Arizona’s from 3,868 to 331,755, and California’s from 14,294 to 6 million. Congressional districts weren’t much better. In 10 states, the largest House district had more than twice the number of residents as the smallest. In Texas, the largest district was four times more populous than the smallest. In Michigan, the ratio exceeded 7 to 1.

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These malapportioned maps were discriminatory in both intent and effect. America’s cities were filled with racial minorities, immigrants, Catholics, and Jews. To prevent these disfavored groups from gaining control of state legislatures or the House of Representatives, racist and nativist politicians packed city dwellers into a few gigantic districts, then spread (predominantly white) rural residents throughout the rest. As a result, white, rural voters had far more voting power than their diverse, urban counterparts. To take the most extreme example, if you lived in Vermont’s smallest House district in 1960, your vote counted about 868 times more than a resident of the largest House district.

The Supreme Court finally put a stop to this anti-democratic state of affairs in Reynolds and Wesberry, ruling that constitutional principles of equality require one person, one vote. A state’s legislative and congressional districts needed to have nearly equal populations. To achieve this goal, the court compelled states to redraw their districts after each decennial census. That’s why after the 2020 census most state legislatures are now deep in the weeds of new maps.

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Not South Carolina’s. The state has taken a lackadaisical approach to redistricting: Rather than redraw maps this fall, both houses of the state legislature adjourned with “no plans” to hold a special session and no timeline for redistricting. It appears the legislature will not reconvene until January 2022, 11 weeks before candidates are obligated to announce their run for office and six months before the primaries. Redistricting is almost always a complex, drawn-out process that requires months of negotiations. And it is especially contentious and time-consuming in South Carolina, whose maps have been litigated every decade since 1970. Federal courts have repeatedly found that state lawmakers malapportioned districts in violation of the one person, one vote rule.

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Today, South Carolina’s legislative and congressional districts indisputably violate one person, one vote. As the new lawsuit points out, the state’s population has shifted dramatically since the state last redrew maps in 2001: It has grown more racially diverse and seen greater growth in cities than in rural regions. The state’s 1st Congressional District, for instance, is 12 percent overpopulated with 818,893 residents, while its 6th Congressional District is 12 percent underpopulated with just 646,463. The state House is much worse: Its 45th District has 66,141 residents—about twice as many as three other districts. Election officials in South Carolina would never let voters cast two ballots in one election because of where they happen to live. But if lawmakers don’t overhaul the maps, they will give residents of these underpopulated districts twice as much voting power as those who live in the 45th.

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To prevent this anti-democratic outcome, a legal coalition led by the ACLU and NAACP LDF urged a federal court to declare the current maps unconstitutional and prepare alternative, lawful maps in case the legislature fails to act. These lawyers argue that the court must act now to prevent the state from dragging its feet until the election looms and then insisting that it’s too late to change anything. The lawyers know the window for action is already closing. In the run-up to the 2020 election, the Supreme Court’s conservatives repeatedly stopped lower courts from altering voting laws by citing the “Purcell principle,” which counsels courts against last-minute changes to election procedure. These decisions were so egregious that House Democrats sought to repeal the Purcell principle in their latest voting rights legislation. If lawyers wait to sue until it’s undeniable that the legislature won’t draw fair maps for 2022, they may run directly into this roadblock.

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Due to a quirk in federal law, this case must be heard by a three-judge district court, whose decision is directly appealable to the Supreme Court. If a party appeals, SCOTUS is legally required to decide the case; a federal statute compels the justices to decide redistricting challenges. So the litigation has very high stakes. Conservatives have long despised the one person, one vote principle, alleging that it has no basis in the Constitution. In a 2016 decision, Justices Clarence Thomas and Samuel Alito expressed deep hostility toward one person, one vote; Thomas insisted that “there is no single ‘correct’ method of apportioning state legislatures.” And in 2019’s Rucho v. Common Cause, which allowed partisan gerrymandering, the conservative majority did not cite precedents mandating equality across electoral districts despite their relevance to the case. Instead, the majority evinced quiet skepticism toward Reynolds and Wesberry, refusing to give them any weight.

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The Supreme Court does not even need to formally overturn one person, one vote to abolish it in practice. Just as it functionally ended Roe v. Wade in Texas by declining to enforce it, SCOTUS could eradicate equal representation by letting South Carolina flout it through procedural roadblocks like the Purcell principle. The move could lead more state legislatures to malapportion their districts to give favored constituents the equivalent of multiple votes in each election. Today’s gerrymanders are bad enough without malapportionment. But if the Supreme Court lets Reynolds and Wesberry fall, it will permit Republicans to unwind democracy by ensuring that their supporters cast the only votes that count.

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