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Redistricting Roundup: Oct 12, 2022

Could the Supreme Court Further Gut the Voting Rights Act?

November 21, 2022

Last week, the Supreme Court heard oral arguments in a closely watched case that could upend what remains of the Voting Rights Act. The case, Merrill v. Milligan, revolves around Alabama’s congressional map, which Black voters allege dilutes their vote by surgically dividing the state’s 18-county Black Belt among four different congressional districts, only one of which is likely to elect a Black-preferred candidate. By contrast, Black voters say that it would be easy to create two Black-majority or plurality districts in the mostly rural, highly impoverished region with a less fractured map.

As the Brennan Center’s Michael Li and Yurij Rudensky explain, should the Court decide in Alabama’s favor, it would have far-reaching effects. “Section 2 could become harder to use or even completely inapplicable in redistricting cases. The most immediate impact would be on cases in Georgia and Louisiana, where courts have already found that Section 2 requires redrawing of congressional maps to create additional Black districts . . . But the consequences are likely to be even graver at the local level, where Section 2 has been a powerful tool to ensure that bodies such as school boards, city councils, and county commissions are fair.”

Oral arguments were lively, and in response to Alabama’s contention that the Fourteenth Amendment was designed to be “race neutral,” Justice Ketanji Brown Jackson delivered a forceful originalist argument for why the Fourteenth Amendment allows race-conscious efforts to eradicate discrimination. A decision in the case is expected sometime next year.

Read an annotated guide to the nearly 40 friend of the court briefs filed by elected officials, civil rights groups, historians, political scientists, and others in the case.

Gerrymandering Reforms Were a Mixed Bag This Cycle

Though a record number of states passed redistricting reforms ahead of the 2020 census, once in place, many of these reforms failed to live up to voters’ expectations. In a new piece, the Brennan Center’s Michael Li assesses these reforms and identifies which factors made some effective and others toothless. “Although last decade’s reforms are very heterogenous — ranging from California-style independent commissions in Colorado and Michigan to a head-spinningly complex, one-of-a-kind process in Ohio — it is not hard to find differences between reforms that worked and those that didn’t. The biggest difference was perhaps the simplest of them all: If reforms removed politicians from the line-drawing process, they worked. By contrast, if politicians were left in the mix, reforms broke down.”

The piece highlights Michigan’s new independent redistricting commission as an example of how well-planned reforms can transform aggressively gerrymandered maps into relatively fair ones. By contrast, Ohio’s new commission, which was composed of politicians, proved unable to overcome partisanship to pass a constitutional map. “Reforms work,” Li concludes, “but only if they are robust enough to overcome partisan interests.”

Featured Graphic: Who Drew the Maps?

In this redistricting cycle, most congressional maps continued to be drawn through partisan-dominated processes, but a record one in five districts were drawn by independent commissions.

As the Brennan Center’s Chris Leaverton writes, “In the latest redistricting cycle, as in previous ones, a majority of congressional districts were drawn through map-drawing processes controlled or dominated by one party, with 26 states passing maps on a wholly or mostly party-line basis. But the cycle also saw notable changes, with two additional states using independent commissions for the first time and an increased number of maps drawn or modified by state courts . . . The maps differ significantly in their political effects. Overall, redistricting bodies that were insulated from partisan interests had relatively more competitive seats, with court-drawn maps having the most by far.”

Map & Litigation Trackers

The Brennan Center has two trackers you can use to keep up with the redistricting cycle: our Redistricting Map Tracker contains links to all of the newly passed maps, while our Redistricting Litigation Roundup outlines the pending legal cases over new plans.

All told, 72 cases around the country have challenged newly passed congressional or legislative maps as racially discriminatory or partisan gerrymanders — or both — as of October 11. Of these cases, 42 remain pending at the trial or appellate level.

Redistricting in the News

ProPublica has revealed that Florida Gov. Ron DeSantis (R) worked secretly behind the scenes with national Republicans to design the congressional map that he strong-armed through the legislature last year, potentially violating Florida law in the process. Now the governor is attempting to shield documents related to his redistricting efforts from the plaintiffs challenging the map in state court. DeSantis, who is not the defendant in the case, is claiming executive privilege over the documents the plaintiffs say show his office’s intimate involvement in passing the congressional map.

The Spirit Lake Tribe and the Mountain Band of Chippewa are challenging North Dakota’s new legislative map, claiming it dilutes the voting power of Native American communities in violation of the Voting Rights Act. Members say their proposal to create a district encompassing both of their reservations was simply ignored by the legislative redistricting committee. The trial in the case is scheduled for June 2023.

Congressional and legislative redistricting may be done, but around the country, local redistricting fights are still boiling over as city councils and other local government bodies work to finalize maps. In New York City, the local redistricting commission recently sent a third draft of its city council map for consideration after it surprisingly voted its own proposal down last month. Meanwhile, in Los Angelesleaked audio exposed the city council president’s racist remarks in discussions over city redistricting. And in Boston, members of the city council are debating several proposals, each favored by different immigrant and ethnic communities within the city.

New York judge has ruled that the state’s redistricting commission, which was unable to pass a state assembly map earlier this cycle, must reconvene and pass maps by April 2023. Republican plaintiffs had asked the court to appoint a special master, but the court declined, saying that there was sufficient time before the 2014 elections to give the commission process another go. But as the Brennan Center’s Michael Li noted, the structure of the commission makes it “very easy to deadlock,” making it likely that the redistricting process is likely to be amended sometime in the next decade. The Republican plaintiffs in the case are exploring whether to appeal the judge’s decision.

As Ohioans are set to vote for candidates in districts deemed unconstitutional by the state supreme court, advocates are gearing up to try to pass stronger reforms for the future. Ohio Chief Justice Maureen O’Connor, who is retiring this year, said she will join efforts to end gerrymandering in the state once she leaves office. You can read more about the Brennan Center’s work in Ohio redistricting cases here.

You can find earlier editions of our Redistricting Roundup here.