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Analysis

The GOP’s Redistricting Loophole

An under-the-radar Supreme Court ruling is making it easier for Republicans to defend racially discriminatory voting district maps.

November 16, 2021
Illustration featuring columns, people walking, a man in a suit, and district lines on a red background.
Brennan Center/Philippe Beyer/EyeEm/Rudy Sulgan/Image_Source_/Getty

The once-a-decade redraw­ing of legis­lat­ive and congres­sional maps is still in its early phases, but a concer­ted Repub­lican tactic for defend­ing racially discrim­in­at­ory maps is already clear. And thanks to a 2019 Supreme Court decision green­light­ing partisan gerry­man­der­ing, they may just get away with it.

Racial discrim­in­a­tion is illegal. Partisan gerry­man­der­ing, the Supreme Court has said, is just the Amer­ican way. You can guess what happened: Repub­lic­ans are defend­ing their racial gerry­manders by essen­tially saying, “Hey, it’s just party busi­ness.”

A decade ago, Repub­lican map draw­ers aggress­ively redrew district bound­ar­ies to pack Black and other nonwhite voters into heav­ily minor­ity districts, assert­ing that the Voting Rights Act made them do so. But that tactic back­fired when courts struck down the wildly recon­figured districts as uncon­sti­tu­tional racial gerry­manders. 

This time, Repub­lic­ans are trying some­thing differ­ent, claim­ing they are draw­ing maps on a “race blind” basis and lean­ing in hard on the argu­ment that partisan polit­ics motiv­ated this decade’s maps, not race. How could our maps be racially discrim­in­at­ory, they argue, if we had the race filters turned off in map-draw­ing soft­ware? The maps may badly dilute the power of communit­ies of color, the argu­ment goes, but that’s simply the by-product of our target­ing of Demo­crats. As bluntly explained by one lead­ing Geor­gia Repub­lican defend­ing this week’s dismant­ling of the seat of the only Asian-Amer­ican woman in the state senate, “Yes, there was a polit­ical aspect, and that’s okay because that’s part of the process.”

Cue the eyer­olls. Even without fancy mapping soft­ware, smart politi­cians know the demo­graph­ics of their home regions like the backs of their hands. And in states like Texas and North Caro­lina with high rates of racially polar­ized voting, they know that Demo­crats are over­whelm­ingly people of color and that discrim­in­at­ing against Demo­crats is invari­ably racially discrim­in­at­ory.

Consider this decade’s “race-blind” maps. In Texas, people of color were 95 percent of the state’s popu­la­tion growth last decade, but Repub­lic­ans created no new elect­oral oppor­tun­it­ies for communit­ies of color and in many places went back­wards. And in North Caro­lina, the state’s new maps could elim­in­ate one of two Black members of Congress from the state as well as a third of Black state senat­ors and a fifth of Black state house members.

Unfor­tu­nately, Repub­lic­ans may get away with their ruse because of the Supreme Court’s opin­ion in Rucho v. Common Cause, which said that federal courts can’t hear partisan gerry­man­der­ing chal­lenges brought under the U.S. Consti­tu­tion. That decision creates a ready escape valve for map draw­ers in race discrim­in­a­tion cases by forcing courts to try to disen­tangle race and polit­ics in maps, some­thing that courts have long found hard to do. (Demo­crats also are guilty of using racial minor­it­ies for partisan advant­age. In Illinois, a new lawsuit contends that maps passed this year by Demo­crats divides Black communit­ies to stra­tegic­ally shore up vulner­able white Demo­cratic incum­bents.)

But the end of the story hasn’t been writ­ten yet. The Free­dom to Vote Act, currently pending in Congress, could upset Repub­lic­ans’ too-clever-by-half calcu­lus by banning partisan gerry­man­der­ing in congres­sional redis­trict­ing and provid­ing a strong judi­cial remedy for voters. By curtail­ing the abil­ity of states to defend racially discrim­in­at­ory maps on the basis of polit­ics, Congress could strike a swift body blow both against partisan gerry­man­der­ing and efforts to subor­din­ate the elect­oral voice of the coun­try’s grow­ing communit­ies of color. 

But time is running peril­ously short. Redis­trict­ing will be done in most of the coun­try shortly after the first of the year. If Congress does­n’t pass the Free­dom to Vote Act, this cycle of redis­trict­ing could be one of the worst in history for communit­ies of color. Members will need to decide if they can live with that.