Jurisprudence

No One Is Prepared for the New Gerrymanders

How the Supreme Court unleashed a brutal wave of partisan redistricting.

Three maps that show potential districts in Texas.
Screengrabs from https://dvr.capitol.texas.gov/

Toward the end of the last decade, in Rucho v. Common Cause, the Supreme Court’s Republican-appointed justices effectively abolished constitutional limits on partisan gerrymandering. But don’t worry about it, Chief Justice John Roberts told the country: You, the citizens, can fix this problem yourselves! States “are actively addressing the issue on a number of fronts,” Roberts promised, and Congress isn’t far behind. “The avenue for reform established by the Framers,” he assured readers, “and used by Congress in the past, remains open.”

Advertisement

Two years later, this passage reads like a twisted joke. A majority of legislatures are now carving up their states into biased districts that will entrench their party’s power through 2030. Republicans have thwarted reforms in several states that Roberts praised for “actively addressing” partisan gerrymandering. And they’ve blocked every bill in Congress—that grand “avenue for reform”—that would outlaw the practice nationwide. This redistricting cycle is poised to lock in a series of brutal gerrymanders that disproportionately favor Republicans, securing their control over purple states’ legislatures and the House of Representatives for years to come.

Advertisement
Advertisement
Advertisement

While the battle over gerrymandering has raged since the early days of the republic, it has grown fiercer over the past two decades. Redistricting technology has improved exponentially in this century, allowing mapmakers to collect massive amounts of information about voters—including their race and their partisan affiliation—and run simulations that maximize the “efficiency” of a gerrymander. Today’s mapmakers can predict, with startling accuracy, how individuals and communities will vote. They then “pack and crack” supporters of the opposing party: “pack” most of them into a handful of districts, then “crack” the rest among many districts to dilute their votes. The result all but ensures that the opposing party will never gain a majority of seats in the state legislature or congressional delegation.

Advertisement
Advertisement

This advance in technology would not matter as much if the federal judiciary could invalidate extreme gerrymanders. But thanks to the Supreme Court’s 5–4 decision in Rucho, it cannot. Rucho was the final blow in a series of decisions that strictly limited federal courts’ authority to police both racial and partisan gerrymandering. These two practices are often intertwined, since race correlates closely with political affiliation. In 2018’s Abbott v. Perez—another 5–4 decision with all five Republican-appointed justices in the majority—the Supreme Court largely abandoned efforts to restrict racial gerrymandering under the Voting Rights Act. The majority insisted that courts should assume lawmakers act in good faith when redistricting, even when they dramatically dilute the voting strength of racial minorities. This rule, which Vox’s Ian Millhiser accurately calls the “presumption of white racial innocence,” makes it virtually impossible for voting rights plaintiffs to prove that racist maps violate federal law.

Advertisement

With these decisions, the Supreme Court’s conservatives allowed state legislators sweeping new powers to rig most elections in favor of their own party. And in 2021, they are wielding it ruthlessly.

Advertisement
Advertisement

In North Carolina—a state almost evenly divided between Democrats and Republicans—the GOP has drawn a map that will award its candidates 11 out of 14 congressional seats as well as a supermajority in the legislature. In Wisconsin, a state that Joe Biden carried, Republicans have drawn themselves a legislative supermajority and six of eight congressional districts. In Texas, which Donald Trump carried by less than 6 points in 2020, Republicans gave themselves at least 24 of the states’ 36 congressional districts. Although people of color made up 95 percent of the state’s population growth over the past decade, GOP lawmakers mercilessly diluted their votes, handing white residents control over a supermajority of congressional and legislative districts. In Alabama, Republicans packed Black voters into a single district, giving themselves a 6–1 majority in their House delegation. The state is roughly 27 percent Black, but thanks to the new map, its racial minorities will not vote in a competitive congressional election this decade. Georgia is still drawing new maps, but its GOP-controlled legislature is poised to give white voters control over as many districts as possible.

Advertisement
Advertisement
Advertisement
Advertisement

Both parties do engage in gerrymandering; in Illinois, for instance, Democrats are currently drafting maps that give them an unfair advantage in congressional races. But on the whole, the Supreme Court’s laissez-faire approach to redistricting benefits Republicans more than Democrats. There are two main reasons why. First, Democratic legislators are far more solicitous of racial minorities than Republicans. They do not draw the kind of racial gerrymanders that SCOTUS greenlighted in Abbott v. Perez, in part because they have no incentive to dilute the voting strength of Black and Latino Americans. Second, in several states that they control, Democrats have relinquished control over redistricting to independent commissions that cannot favor either party. This pursuit of a fairer process created an asymmetry: Democratic legislators cannot gerrymander several states where they claim a sizable majority, while Republican legislators can gerrymander with abandon. Republican voters in blue states get to participate equally in the political process; Democratic voters in red states will never win fair representation.

Advertisement
Advertisement

This problem is exacerbated by the fact that Republicans have gamed, rolled back, or repealed redistricting reforms in multiple red and purple states. In 2018, Utah voters approved a ballot initiative creating an independent redistricting commission; Republican lawmakers are about to override its recommendations and pass their own gerrymander. That same year, Missouri voters overwhelmingly approved a ballot measure that allowed a nonpartisan “state demographer” to draw legislative districts that are fair, competitive, and compact. In 2020, however, Republicans pushed a new, intentionally confusing ballot measure to eliminate this position, and voters narrowly approved it. In 2015, 71 percent of Ohio voters approved a ballot measure creating a bipartisan commission to draw legislative districts in 2021. Last month, Republican members of this commission sabotaged its work, kicking redistricting back to the GOP-controlled legislature—which is now drawing a radical gerrymander.

Advertisement

And the hits will keep coming. Florida voters amended their state constitution to require fair districts in 2010, but Republicans have stacked the Florida Supreme Court with partisans who are unlikely to enforce the new rules. Virginia voters approved a bipartisan redistricting commission in 2020, but this year, Republicans on the commission forced a deadlock, throwing redistricting to the conservative Virginia Supreme Court. When the court solicited requests for candidates to help with the maps, Democrats recommended nonpartisan academic experts, while Republicans recommended GOP operatives. The asymmetry remains stark as ever.

The GOP’s all-out assault on redistricting reforms will have huge consequences at nearly every level of American politics for the next 10 years. Democrats may lose the House of Representatives in 2022 even if they win a large majority of overall votes. Republicans will maintain and expand their stranglehold on a majority of state legislatures, passing all manner of laws—including voter suppression measures—that lack majority support. As my colleague Rick Hasen has explained, GOP-dominated state legislatures could also attempt to overturn the outcome of a presidential election by awarding their electors to the losing Republican candidate. If a disputed presidential race is thrown to the House of Representatives, each state’s congressional delegation casts one vote. Thanks to gerrymandering, Republicans will likely hold a majority of state delegations well into the future.

While Democrats in Congress loudly fret about civility and bipartisanship, Republicans are quietly locking in some of the most extreme and biased gerrymanders America has ever seen.

Advertisement