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Redistricting: A Mid-Cycle Assessment

Summary: Many new maps entrench racial discrimination and partisan gerrymanders.

Mississippi's state senate map
Associated Press

As mandated by the Consti­tu­tion, every 10 years congres­sional seats must be reap­por­tioned and each state must redraw its congres­sional map. With the 2021–22 redis­trict­ing cycle now well under­way, slightly more than half the states have completed the process. Already, this cycle appears to be one of the most abuse laden in U.S. history. There are a few notable bright spots, but in many states, racial discrim­in­a­tion and extreme gerry­man­der­ing are once again prolific.

Predict­ably, many of this round’s biased maps achieve their skew at the expense of communit­ies of color. Over the past decade, communit­ies of color accoun­ted for nearly all of the coun­try’s popu­la­tion growth. But in redraw­ing bound­ar­ies, Repub­lican map draw­ers, espe­cially in the South, haven’t just declined to create any new elect­oral oppor­tun­it­ies for these fast-grow­ing communit­ies; in many instances they have dismantled exist­ing districts where communit­ies of color won power or were on the verge of doing so. This brazen attack is unpre­ced­en­ted in scale. In state after state, Repub­lic­ans are claim­ing that they are draw­ing maps on a “race-blind” basis and then defend­ing the result­ing racially discrim­in­at­ory maps on the basis of partis­an­ship, cynic­ally exploit­ing the loop­hole left when the Supreme Court declared that federal courts were off-limits to consti­tu­tional chal­lenges to partisan gerry­man­der­ing. If courts are not will­ing to care­fully probe the inter­sec­tion of race and polit­ics, the ruse may just succeed.

Demo­crats have tried to coun­ter­act Repub­lican gerry­man­der­ing with aggress­ive line draw­ing of their own, but the play­ing field is not level. Repub­lic­ans control the draw­ing of 187 congres­sional districts in this redis­trict­ing cycle; Demo­crats just 75. If, in the end, the cycle does not end up a whole­sale disaster for Demo­crats, this will largely be attrib­ut­able to three factors: the unwind­ing of gerry­manders in states like Michigan with reformed processes, court-drawn maps in states where the redis­trict­ing process has dead­locked, and litig­a­tion in states where state courts, unlike their federal coun­ter­parts, will hear partisan gerry­man­der­ing claims.

In states where legis­latures draw maps, many of this cycle’s new maps are breath­tak­ing in their aggress­ive­ness. Repub­lic­ans in North Caro­lina, for example, conver­ted a congres­sional map that elec­ted 8 Repub­lic­ans and 5 Demo­crats (already a skewed map for an almost evenly divided battle­ground state) into one that could elect as many as 11 Repub­lic­ans and just 3 Demo­crats. Under the redrawn map, even if Demo­crats get 52 percent of the vote, they will win no more than 29 percent of the seats. The map, moreover, achieves its partisan skew with a shock­ing target­ing of Black polit­ical power, making the seat of one of the two Black members of the state’s congres­sional deleg­a­tion much less likely to elect a minor­ity-preferred candid­ate. As a result, a state that is one-fifth Black could have only a single Black member of the U.S. House come next Janu­ary.

North Caro­lina is extreme but hardly an outlier. Of the maps passed as of the end of 2021, GOP-passed congres­sional maps in Texas, Ohio, and Geor­gia are also severe partisan gerry­manders under stand­ards in the proposed Free­dom to Vote: John R. Lewis Act, and others are not far behind. Demo­cratic-drawn congres­sional maps in Illinois, Mary­land, and Oregon also are suffi­ciently skewed that they would trig­ger court review under the bill.

The prob­lem, moreover, isn’t just that the parties are draw­ing skewed maps. Repub­lic­ans in partic­u­lar are draw­ing them in a way that aggress­ively takes compet­i­tion off the table. Early indic­a­tions are that by the time the latest round of redis­trict­ing is done, by March or shortly there­after, there will be signi­fic­antly fewer compet­it­ive districts for Demo­crats than there were in 2018 or 2020. Should Demo­crats lose their major­ity in the U.S. House in the 2022 midterms, as many expect, their road back to a major­ity in 2024, 2026, or even 2028 will be harder, espe­cially if the expan­ded Demo­cratic coali­tion of recent years changes unex­pec­tedly.

Lawsuits will help mitig­ate these abuses, espe­cially in states where litig­a­tion in state courts is a possib­il­ity. But over­all, winning map changes will be harder than it was 10 years ago because of a fray­ing legal frame­work. In addi­tion to seeing racially discrim­in­at­ory maps defen­ded as legally permit­ted partisan gerry­manders, expect multiple attacks, big and small, on what remains of the Voting Rights Act of 1965 (VRA). Some have already begun in Texas.

However, the story of the 2021–22 redis­trict­ing cycle isn’t yet writ­ten in stone. As bad as many of the maps drawn thus far are, Congress could upend gerry­man­der­ing and racial discrim­in­a­tion by passing the Free­dom to Vote: John R. Lewis Act. If Congress acts quickly enough, it may even be possible to make changes to maps in time for the 2022 midterms. The bill would trans­form a broken map-draw­ing process by giving voters power­ful new tools to fight both racial and partisan discrim­in­a­tion, includ­ing a stat­utory ban on extreme gerry­man­der­ing that would elim­in­ate the loop­hole states are using to defend racially discrim­in­at­ory maps. But time is running out. The 2022 primar­ies soon will be well under­way in much of the coun­try, and in short order courts will likely conclude that it is simply too late to make changes to maps for this elec­tion cycle.

Key Obser­va­tions

  • Attacks on minor­ity communit­ies. This cycle is seeing unpre­ced­en­ted efforts to under­mine the polit­ical power of Black, Latino, Asian, and Native communit­ies through redis­trict­ing, espe­cially in south­ern states that, for the first time in more than half a century, are no longer covered by Section 5 of the Voting Rights Act, which before 2013 required states with a history of racial discrim­in­a­tion to get new maps preapproved by the Justice Depart­ment or a federal court before putting them into effect.
    • This cycle is seeing unpre­ced­en­ted efforts to under­mine the polit­ical power of Black, Latino, Asian, and Native communit­ies through redis­trict­ing, espe­cially in south­ern states that, for the first time in more than half a century, are no longer covered by Section 5 of the Voting Rights Act, which before 2013 required states with a history of racial discrim­in­a­tion to get new maps preapproved by the Justice Depart­ment or a federal court before putting them into effect.
    • The South also will see renewed legal fights over the fail­ure of lawmakers to create a suffi­cient number of Black oppor­tun­ity districts in Alabama and North Caro­lina and Latino oppor­tun­ity districts in Texas. The recently enacted congres­sional map in Arkan­sas also is expec­ted to be chal­lenged on racial discrim­in­a­tion grounds.
    • All told, voting rights advoc­ates have raised signi­fic­ant concerns about the racial fair­ness of enacted or proposed congres­sional or legis­lat­ive maps in seven south­ern states: Alabama, Arkan­sas, Geor­gia, Missis­sippi, North Caro­lina, South Caro­lina, and Texas.
       
  • Deeply skewed maps. Repub­lic­ans will enjoy an advant­age this decade in the battle for control of Congress if new maps stand.
    • In Texas, Geor­gia, and North Caro­lina — three of the four states that the Bren­nan Center has flagged as being at the greatest risk of discrim­in­at­ory line draw­ing — new maps would have given Repub­lic­ans 6 to 9 more congres­sional seats in 2020 than they would have won under neut­ral plans. Add to that the impact of an extreme gerry­mander in Ohio and select­ive gerry­man­der­ing in smal­ler states like Utah, and Repub­lic­ans would have won 8 to 15 more seats in 2020 under the new maps than under neut­ral plans.
    • Gerry­man­der­ing in states Demo­crats control and the unwind­ing of exist­ing pro-GOP gerry­manders in other states will offset this advant­age some­what but likely not completely. Indi­vidu­ally and collect­ively, the nation’s maps will continue to have a skew favor­ing Repub­lic­ans.
       
  • A decrease in compet­i­tion in Repub­lican-controlled states. The number of compet­it­ive districts will decrease sharply as a result of redis­trict­ing. This reduc­tion will be espe­cially notable in Repub­lican-controlled states, where Repub­lic­ans’ defens­ive gerry­manders have made the seats they currently hold much safer. Under old maps, Donald Trump won 54 congres­sional districts in GOP-controlled states by 15 or more percent­age points. Under new maps, that number grows to 70, an increase of almost 30 percent. By contrast, the number of districts in Demo­cratic-controlled states that Joe Biden won by 15 or more points remains flat at 29 between the old and new maps. Compet­it­ive­ness, like­wise, remains largely unchanged in states with commis­sion-drawn maps.
     
  • Success­ful state-level redis­trict­ing reforms, but not every­where. Redis­trict­ing reforms have been greatly success­ful in creat­ing fairer maps in some states, most notably Michigan, one of the past decade’s most gerry­mandered states. But else­where, the record of recent reforms is mixed. This is espe­cially the case where reforms imposed new rules but left line-draw­ing respons­ib­il­ity in the hands of partisan lawmakers (as in Ohio) or where partisan lawmakers could simply over­ride a map passed by an advis­ory commis­sion to adopt a gerry­mandered one (as happened in Utah). The lesson: Reforms can work, but the details of their design matter.
     
  • The poten­tial impact of the Free­dom to Vote: John R. Lewis Act. If passed, the federal legis­la­tion would greatly mitig­ate this decade’s gerry­manders. Newly adop­ted congres­sional maps in seven Repub­lican-controlled states and five Demo­cratic-controlled states would be presumed to be illegal partisan gerry­manders under the legis­la­tion because of high rates of bias and would be blocked from being used unless and until a state estab­lished that no fairer map could be drawn. But timing of passage will be crit­ical. If the bill does not pass early in 2022, it is likely that changes to maps will have to wait for the 2024 elec­tion cycle.