Cross-posted from The Hill
African-American voters won a significant victory two weeks ago when the U.S. Supreme Court struck down two of North Carolina’s congressional districts for racial discrimination.
But the court’s recent ruling likely won’t be enough to stop future attempts by power-hungry lawmakers to rig the boundaries of election districts — at the expense of minority voters. That is unless the court uses an upcoming opportunity to take action against the worst forms of partisan gerrymandering.
In an American South where race and party increasingly overlap, racial gerrymandering is, at least in part, a partisan project. Just look at North Carolina.
After Barack Obama won the state in 2008, North Carolina looked well on its way to changing from red to blue. But with the tea party wave of 2010, Republicans found themselves with a majority in both houses of the General Assembly for the first time since Reconstruction — something that would have seemed unbelievable just two years prior.
To entrench their new and still very vulnerable majorities, Republicans immediately launched a campaign to minimize the power of the state’s most reliable Democratic voters: African Americans.
In addition to rolling back election reforms that increased African Americans’ electoral influence and restricting access to the polls, the General Assembly carefully drew both the congressional and legislative maps to limit their power at the ballot box.
These gerrymanders packed African American voters into comparatively few districts, undercutting their ability to form coalitions with other voters and elect more legislators who would represent their interests. Using these gerrymandered maps, the Republicans established a chokehold on state legislative seats and a 10–3 majority in North Carolina’s congressional delegation.
The courts have started to push back. Last year, a court of appeals struck down the state’s election reforms in large part for “target[ing] African Americans with almost surgical precision.” Then, two weeks ago, the Supreme Court ruled that North Carolina’s congressional map was an unconstitutional racial gerrymander, making it clear that partisan motives do not excuse racially discriminatory map drawing. This decision will make racial gerrymandering more difficult in the future.
But the courts have more to do to safeguard the rights of African Americans from redistricting wrongdoings. Legislators have an uncanny ability in exploiting legal loopholes and incentives created by the law to push their partisan agendas.
Just look at what happened in North Carolina after a lower court found that the state’s congressional map unconstitutionally discriminated on the basis of race and ordered the General Assembly to draw new districts for the 2016 election. Told not to racially discriminate, the Legislature simply resorted to blatant partisan gerrymandering.
The leaders of the map-drawing process made no secret of what they were up to, declaring that they would draw the maps to gain “partisan advantage,” with seats for “ten Republicans and three Democrats” because they didn’t believe it was actually “possible to draw a map” that would create seats for “11 Republicans and two Democrats.” They were able to be so bold in pursuing this strategy because courts have yet to articulate a standard for banning partisan gerrymanders.
The end result for North Carolina is a congressional delegation that looks just like it did under its purposefully racially gerrymandered map: a 10–3 Republican advantage, with no improvement for the state’s African American communities.
When the law allows the partisan-gerrymandered present to look and act just like the racially-gerrymandered past, something’s seriously wrong.
Fortunately, the Supreme Court will soon have a chance to remedy this situation, through one or more partisan gerrymandering cases that are pending in the courts. The most watched case is Gill v. Whitford, a challenge to Wisconsin’s 2011 state assembly map, which the justices are likely to soon add to their docket for this fall. Wisconsin’s Republican legislators — like the North Carolina Legislature in 2016 — used political data strategically to divide voters among districts, all to maximize the number of seats their party could win and lock-in that advantage over many years. (Partisan gerrymandering challenges to the new maps in North Carolina are also making their way to the Supreme Court.)
If the Supreme Court agrees that the map in Wisconsin went too far and that redistricting for the primary purpose of maximizing seats is wrong, its ruling may be brought to bear on partisan gerrymandering techniques, like North Carolina’s, that are being used to achieve what would be illegal as a racial gerrymander.
Perhaps then communities of color will finally see the measure of justice that the court’s recent opinions promise, but haven’t yet delivered. And all Americans will benefit when politicians lose some of their most powerful tools to game the system for partisan advantage.