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Analysis

The Freedom to Vote Act Is a Big Deal for Redistricting

Congress has a chance to save this cycle of redistricting, but it needs to act soon.

October 13, 2021
Legislator looks pensive while holding Colorado communities map
RJ Sangosti/Getty

The redraw­ing of congres­sional maps around the coun­try has star­ted in earn­est, and there already are disturb­ing signs that communit­ies of color will once again be squarely in the sights of map draw­ers. But Congress has the power to change this traject­ory in a big way with the Free­dom to Vote Act — the slimmed-down version of Demo­crats’ omni­bus demo­cracy reform bill that Sen. Amy Klobuchar (D-MN) intro­duced on Septem­ber 14, with support from Sen. Joe Manchin (D-WV), among others.

If passed by Congress, the legis­la­tion would put in place the most trans­form­at­ive changes to the redis­trict­ing process in the coun­try’s history, includ­ing banning partisan gerry­man­der­ing, strength­en­ing other protec­tions for communit­ies of color, and making it easier for voters to get bad maps quickly struck down in court. 

On the other hand, if Congress fails to act, expect more maps like the one released by Texas Repub­lic­ans in late Septem­ber. That map not only would fail to create any new elect­oral oppor­tun­it­ies for the communit­ies of color that provided 95 percent of Texas’ popu­la­tion gain last decade, it actu­ally would go back­wards, dismant­ling several diverse districts in regions where multiracial coali­tions have enjoyed increas­ing polit­ical success in recent years.

Time is of the essence. Every day that passes increases the risk that communit­ies of color will bear the brunt of a brutal redis­trict­ing cycle, with fallout that could be decades long.

There are three key ways the Free­dom to Vote Act would fix a broken redis­trict­ing process.

A strong ban on partisan gerry­man­der­ing 

At the core of the bill’s redis­trict­ing reforms is a robust stat­utory ban on partisan gerry­man­der­ing in the draw­ing of congres­sional maps that could be brought in federal court in Wash­ing­ton, D.C.. This ban would fill the gaping hole left in 2019 when the Supreme Court held that federal courts had no power to decide partisan gerry­man­der­ing claims asser­ted under the U.S. Consti­tu­tion, leav­ing the poli­cing of gerry­man­der­ing instead to Congress and the states. 

A ban on partisan gerry­man­der­ing is a crucial protec­tion for communit­ies of color. Whether gerry­man­der­ers are Demo­crats or Repub­lic­ans, the target­ing of communit­ies of color is often the key to creat­ing a map that favors one party over the other. This cycle, map draw­ers in Texas and other south­ern states are already defend­ing racially discrim­in­at­ory maps on the basis that the maps were drawn on a supposedly “color blind” basis and target Demo­crats rather than Black, Latino, and Asian voters — even though map draw­ers are fully aware that their maps invari­ably dilute the power of communit­ies of color.

Under the Free­dom to Vote Act, it would be easy to block the worst gerry­manders. If a map produces stat­ist­ic­ally high partisan bias using results of the last two pres­id­en­tial and last two Senate elec­tions in a state, it is presumed to be illegal and cannot be used until a state estab­lishes before a three-judge panel in Wash­ing­ton that no fairer map was possible.

Added protec­tions for communit­ies of color 

In addi­tion to banning partisan gerry­man­der­ing, the Free­dom to Vote Act would also enhance protec­tions for communit­ies of color in redis­trict­ing by increas­ing the number of ways that communit­ies can show their vote is being diluted and protect­ing the abil­ity of minor­ity groups to form coali­tions with one another.

As evid­enced by proposed Texas maps, many of this decade’s most vicious redis­trict­ing attacks on communit­ies of color are likely to be in the increas­ingly diverse suburbs of cities like Dallas, Hous­ton, and Atlanta, where grow­ing Latino, Black, and Asian communit­ies are upend­ing the status quo by coming together in multiracial coali­tions to win or contest for power. 

When voting rights laws were writ­ten in the 1960s, the coun­try was both more starkly segreg­ated and much less multiracial. The Free­dom to Vote Act would update redis­trict­ing law to keep up with the more diverse and multiracial and multi­eth­nic world of today, where most people of color in metro regions now live not in segreg­ated cities but in cross-cultural, melt­ing-pot suburbs.

Faster and easier litig­a­tion of redis­trict­ing cases

Last but not least, the Free­dom to Vote Act would make it far easier for voters to chal­lenge bad maps in court and win changes.

At present, redis­trict­ing cases can take years to litig­ate, during which time discrim­in­at­ory maps continue to be used in elec­tion after elec­tion. In Flor­ida, North Caro­lina, Texas, Virginia, litig­a­tion over maps took the better part of the last decade to resolve.

Under the Free­dom to Vote Act, redis­trict­ing litig­a­tion would be stream­lined in multiple ways. Both trial and appeals courts would be required to exped­ite redis­trict­ing cases. Courts, moreover, would be instruc­ted to have a prelim­in­ary map ready to go once appeals are finished, rather than wait­ing for the end of the process to begin the devel­op­ment of a new map as is often the current prac­tice. And if trial proceed­ings or appeals take a long time to fully resolve, courts are direc­ted to put a tempor­ary map in place to address egre­gious viol­a­tions while the rest of the case is being litig­ated.

Finally, rather than being channeled into the Supreme Court, where the appel­late process can be lengthy and delayed, appeals in redis­trict­ing cases would be cent­ral­ized in the DC Circuit Court of Appeals, where a three-judge panel can resolve them more exped­i­tiously.

With Amer­ic­ans star­ing down the barrel of another round of aggress­ive gerry­man­der­ing, time is running short for Congress. It’s crit­ical that the Free­dom to Vote Act becomes law without delay if the nation is to avoid another decade of skewed maps.