One reliable strategy for Democrats in gerrymandering battles over the past decade has been to sue Republicans for racial gerrymandering — arguing that Republicans illegally packed minority voters into districts so these voters had less power to elect additional representatives.
That may not be as reliable an option for Democrats anymore. On Monday, five conservatives on the Supreme Court decided to let stand an Alabama congressional map that only includes one majority-Black district out of seven, even though a lower court struck down the map because it didn’t give Black voters equitable representation. (Black voters make up about a quarter of Alabama’s population. Alabama Republicans should have spread them out and created two such districts, the lower court in Alabama ruled.)
“Black voters have less opportunity than other Alabamians to elect candidates of their choice to Congress,” wrote the lower court. Taking the position were two judges appointed by former president Donald Trump. Another GOP appointee, Chief Justice John G. Roberts Jr., however, sided with the court’s liberals and said the map shouldn’t stand.
But in the 5-to-4 ruling, the court’s conservative wing carried the day. And the ruling suggests those justices may make racial gerrymandering harder to challenge in the future.
This was an emergency ruling, so they didn’t do much to explain why. Justice Brett M. Kavanaugh wrote that it was simply too late, nine months before an election, to change up the maps. The justices said they’ll decide the merits of this case later, meaning that elections in Alabama this November will be held on maps that could ultimately be ruled illegal.
Some Supreme Court analysts, however, think the court isn’t done with making it harder to sue based on racial gerrymandering. Later this year or next year when the court looks more closely at the Alabama case, the conservative justices could strike down a section of the Voting Rights Act (VRA) that is designed to protect minority representation. This section of the law prohibits voting practices that discriminate based on race. (In 2013, the Supreme Court led by Roberts struck down a key section of the VRA that required the federal government to sign off on maps in certain states.)
If the Supreme Court takes down other parts of the VRA, the conservative argument that mapmakers should be “race-blind” prevails at the Supreme Court, as Rick Hasen of Election Law Blog wrote. And that would mean that mapmakers don’t have to consider growing Black and Latino populations in Southern and Western states when they draw electoral districts.
And that could mean Democrats could lose their ability to challenge maps as racially gerrymandered, which is one of the only ways Democrats have been able to successfully challenge maps in federal courts right now. (State courts can and still do knock down partisan gerrymandered districts, based on more stringent rules in state constitutions about what’s an unconstitutional gerrymander.)
For example, the Justice Department is suing Texas right now over its map, arguing Republican lawmakers didn’t drawn enough majority-Hispanic districts because Hispanics made up much of the state’s new growth over the past decade.
A lawsuit like that could get much harder to win or even launch if the Supreme Court decides mapmakers should lean toward “race-blind” policies.
The National Democratic Redistricting Committee is blasting maps in Tennessee and Kansas for similar reasons. It’s leader, former attorney general Eric Holder under President Obama, issued a heated statement criticizing the Supreme Court for its decision in Alabama. “The Supreme Court’s decision to stand in the way of legislatively mandated opportunity for black voters in Alabama is an ideological abuse of the Court’s power. ... The majority on the Court have aligned themselves with a past that the nation was thought to be beyond."
If the Supreme Court did knock down a key section of the VRA and commanded mapmakers to draw maps without taking into account race, what would that look like?
In certain instances, VRA requirements have arguably hurt Democrats by giving Republicans justification to pack districts with Black (read: heavily Democratic) voters, rendering the rest of the electorate more easy to slice and dice in advantageous ways. That’s what happened in Alabama, which has seven districts; only one of them is Democratic-leaning (the majority-Black one).
But “race-blind” policies would probably still benefit Republicans by diluting minority voters. The University of Michigan’s Jowei Chen and Harvard Law’s Nicholas Stephanopoulos did an analysis of “race-blind” redistricting in all of the nation’s state House districts. They found that there would be “substantially fewer” minority-majority districts, and those that remained would have smaller minority populations in them. In the South in particular, Republicans would benefit from this by picking up more districts.
“Maps produced without consideration of party or race typically include more Republican districts,” Chen and Stephanopoulos wrote in the Yale Law Journal.
Both sides gerrymander when given the chance. But for two redistricting cycles in a row — in 2011, and this time around in 2021, Republicans have or are likely to come out on top.
That’s because they control the mapmaking process in key states that hand the process off to state legislatures.
They’ve also been helped along by a conservative Supreme Court, which keeps making it more difficult for Democrats to challenge Republican-drawn maps.