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The Emerging Fight over Gerrymandering

As the once-a-decade redistricting process approaches, will lawmakers ensure that every vote counts equally?

Published: March 16, 2021

With legis­lat­ive and congres­sional districts redrawn every 10 years, polit­ical parties have often produced maps that entrench major­ity control. While this dynamic has long pervaded Amer­ican polit­ics, the last redis­trict­ing cycle, in 2011–12, saw some of the worst partisan gerry­man­der­ing and racially discrim­in­at­ory maps in history — a devel­op­ment that has further diluted the polit­ical power of communit­ies of color. At the same time, there has been grow­ing momentum for reforms, includ­ing in states push­ing to estab­lish inde­pend­ent redis­trict­ing commis­sions. In a new paper, The Redis­trict­ing Land­scape, 2021–22, the Bren­nan Center’s Michael Li looks ahead to the map-draw­ing cycle that starts this year and outlines the polit­ical, legal, and demo­graphic factors at play, along with how census delays caused by Covid-19 might affect the process.

What factors have contrib­uted to increased partisan gerry­man­der­ing in the United States?

Michael Li: Redis­trict­ing has always been a polit­ic­ally fraught process in the United States, going back to the found­ing of the coun­try. Patrick Henry, then governor of Virginia, famously tried to draw Virgini­a’s very first congres­sional map to make it so that James Madison could­n’t win a seat. But polit­ical manip­u­la­tion of maps is getting worse for both legal and prag­matic reas­ons. The legal reason is that the Supreme Court ruled in 2019 that federal courts cannot hear partisan gerry­man­der­ing claims. That’s a big signal to map draw­ers that they can do whatever they want and that there won’t be a cop on the beat. 

Add to that the increase in single-party control of the redis­trict­ing process in recent decades. Whether it’s Demo­cratic or Repub­lican control, that’s a recipe for map draw­ing based primar­ily on polit­ical consid­er­a­tions. After the Tea Party wave elec­tion of 2010, Repub­lic­ans consol­id­ated control in states such as Alabama, Wiscon­sin, and Pennsylvania, and they used that power aggress­ively. Like­wise, this decade, lots of states will draw maps again under single-party control, partic­u­larly in the South.

What’s more, it’s getting easier to draw discrim­in­at­ory maps. In the past, you had to draw maps by hand or with slow computers, and you had to pick the best out of the three, four, five, or six maps that you drew. But now, you can draw thou­sands of maps in a matter of minutes, with much more soph­ist­ic­ated data and analyt­ics. It’s not just elec­tion results and demo­graph­ics but also, increas­ingly, the sort of consumer data that polit­ical campaigns and commer­cial compan­ies use about voters, based on what kind of car you drive, what magazines you read, who you donate to. That enables map draw­ers to build a robust profile of who you are, whether you’re a Demo­crat or a Repub­lican, and how likely you are to vote in pres­id­en­tial years and midterms. And that, in turn, enables you to draw maps with micro-preci­sion to perform the way that they’re designed to. It’s deeply undemo­cratic because it basic­ally renders elec­tions mean­ing­less. And it’s only going to get worse as these tools become even more power­ful.

What outcomes are produced by gerry­man­der­ing?

Li: Gerry­man­der­ing dispro­por­tion­ately targets communit­ies of color, espe­cially in the South. Because of resid­en­tial segreg­a­tion, it’s easy to either combine or split apart communit­ies of color in order to achieve a polit­ical effect. By contrast, there are relat­ively fewer white Demo­crats in the South, and they tend to live in close prox­im­ity to white Repub­lic­ans — some­times in the same house. That makes it harder to combine or split white Demo­crats in the same way.

The result of such target­ing is that those communit­ies of color are deprived of the abil­ity to elect candid­ates who repres­ent their interests. That’s a huge prob­lem because, as we’ve seen over the past year, there’s a whole host of issues, from poli­cing to the pandemic, where it is import­ant to have diverse perspect­ives at the table.

Redis­trict­ing reform would contrib­ute to more equit­able outcomes for communit­ies of color. It would elim­in­ate the abil­ity of any one party to make all of the decisions, and it would give communit­ies of color more legal tools to argue for districts that are elect­or­ally favor­able.

How will Covid-related delays to census data deliv­ery affect the next redis­trict­ing cycle?

Li: This upcom­ing redis­trict­ing cycle will take place much later than normal. Usually, most states complete the redis­trict­ing process by the end of summer. This time, because of Covid-related delays, states likely won’t even get census data until Septem­ber 30 or perhaps even a bit later, after which it will need to be processed. So, redis­trict­ing prob­ably can’t start in earn­est until late Octo­ber or Novem­ber, which will create complex­it­ies in a number of states. 

From a legal stand­point, some states will have to make emer­gency changes to the dead­lines that are in their laws. Redis­trict­ing in a lot of states will take place in a special session, which is often­times a rushed affair with fewer proced­ural protec­tions. The governor or legis­lat­ive lead­ers often control the timing of these special sessions, which means that there’s the poten­tial not only for gaming the process but also for push­ing redis­trict­ing to the last minute, which will give less time for judi­cial review of discrim­in­at­ory maps.

The poten­tial short-circuit­ing of litig­a­tion time is espe­cially worry­ing. Histor­ic­ally, redis­trict­ing was done by the summer, which gave you at least six to nine months to bring legal chal­lenges to try to win changes to maps before they went into effect. Now, you may have weeks instead of months, which increases the like­li­hood that discrim­in­at­ory maps will be used for at least the 2022 elec­tions before changes get ordered in. That, again, will cut sharply against communit­ies of color.

What reforms would contrib­ute to a fairer redis­trict­ing process?  

Li: The good news is that there are lots of ways to make the process better. By far the strongest way is for states to estab­lish inde­pend­ent commis­sions that have strong rules for draw­ing maps, inde­pend­ently select commis­sion­ers, remove polit­ical parties from direct roles in the process, require pan-partisan support in order to pass a map, and allow for public parti­cip­a­tion and trans­par­ency in the process. A well-designed commis­sion creates a system of checks and balances to ensure that even if some­thing goes awry — if, for example, there is a rogue commis­sioner — there are safe­guards.

Reforms such as inde­pend­ent redis­trict­ing commis­sions help make that process public and enable people to see what is going on and to submit their own thoughts. Draw­ing maps requires balan­cing compet­ing demands, and that often can be conten­tious. People are going to disagree. But at least those debates and tradeoffs occur in public and not in back­rooms.

What kind of momentum is there for redis­trict­ing reform?

Li: A record six states passed some sort of restrict­ing reform in the last decade, includ­ing Color­ado and Michigan, which adop­ted strong, well-designed inde­pend­ent commis­sions. There prob­ably would have been more if not for the pandemic, which made it hard to collect signa­tures for ballot initi­at­ives. There defin­itely is momentum build­ing toward redis­trict­ing reform. It’s an issue that reson­ates with people in ways that it didn’t before. It moves people in the polls. That shift in public opin­ion is increas­ingly influ­en­cing how lawmakers respond. We saw reforms pass on a bipar­tisan basis in Virginia and New Hamp­shire, and there’s bipar­tisan momentum in states includ­ing Pennsylvania, because lawmakers are respond­ing to what voters want. And they also under­stand that the system is not right.

All of that builds toward federal legis­la­tion. The For the People Act, which is modeled on success­ful state reforms, would estab­lish a uniform set of rules for how congres­sional redis­trict­ing is done nation­wide and provide for greater trans­par­ency and public parti­cip­a­tion in the process. It also would require states to draw congres­sional districts using inde­pend­ent commis­sions, though whether it can be in place in time to shape the 2022 elec­tions will depend on when the Senate passes the bill.

Gerry­man­der­ing is one of the hot-button issues of our time. If you look at polling, ending gerry­man­der­ing is one of the few things that gets major­ity support from Demo­crats, Repub­lic­ans, and inde­pend­ents. It’s some­thing that people feel strongly about. People under­stand instinct­ively that the polit­ical process is broken, and they under­stand that rigged maps are in part to blame.

The For the People Act’s reforms are designed to help create a demo­cracy that looks like Amer­ica, that is respons­ive to the concerns of Amer­ic­ans, and that isn’t domin­ated by special interests, includ­ing those that played a role in rigging the maps in the first place.

Read the full Bren­nan Center paper, The Redis­trict­ing Land­scape, 2021–22.