As activists who want to create and protect balanced voting districts and Republicans who instead want to further gerrymander districts to strengthen minority-party rule wait for the 2020 U.S. Census figures to be published, anti-gerrymandering experts point to both challenges and reasons for optimism on several fronts.
At the federal level, the most sweeping possible reforms could occur nationwide if HR 1, the For The People Act of 2021, passes in the Senate. Passage of HR 1 “would be a massive change. I mean, even just in the redistricting sphere, it would completely upend everything,” said Ruth Greenwood, co-director of Voting Rights and Redistricting for the Campaign Legal Center.
The passage of HR 1, though, like so much else in President Joe Biden’s agenda, will depend on the success of the current drive to reform the filibuster. In addition, while the bill mandates independent commissions for the purpose of drawing U.S. congressional districts, Greenwood explained the bill doesn’t cover state legislative districts. Even here, though, some experts express cautious optimism.
While Republicans won or kept majorities in virtually every state where redistricting is at stake, the results of the 2020 election weren’t quite the death knell for fair districts that may at first seem to be the case.
Signs of progress
“The fact is, Democrats are in a much stronger position than we were a year ago,” said Molly Mitchell, states press secretary at the National Democratic Redistricting Committee. For one thing, Mitchell said, 2021 is the first time that commissions and other reforms cover the majority of congressional districts.
Finally, Mitchell said, “We successfully broke up Republicans’ control of the process in a number of large swing states by electing Democratic governors, passing reforms or creating legal precedence.”
Mitchell was quick to point out that although the election of Democrats is a net positive in terms of ensuring competitively drawn districts, the NDRC is not trying to create a situation to allow Democrats to draw gerrymandered districts of their own. “We know when there are fair maps everywhere, Democrats can compete everywhere,” she said.
While the news can be seen as reassuring at the state level, a February report released by the Brennan Center for Justice explains the caveats. The report cites nine states whose districts will be “likely improved” because of the establishment of independent commissions, state court actions, or the breakup of Republican trifectas in those states’ governments. At the same time, though, the report names five states that are at the “highest risk” of gerrymandering: Florida, Georgia, North Carolina and Texas. Alabama, Mississippi and South Carolina are also rated as “high risk” states, between issues with single-party control and courtesy of the 2013 SCOTUS decision striking Article 5 of the Voting Rights Act.
There are also concerns about a few of the “likely improved” states. The redistricting commissions in New York and Utah are advisory-only—those states’ legislatures could still decide to draw maps to solidify partisan majorities for Democrats and Republicans respectively. In Wisconsin, Republicans are trying to create a situation in which the state’s conservative supreme court would weigh in to draw maps in the event of a deadlock between Democratic Governor Tony Evers and the gerrymandered, Republican-controlled legislature.
However, Greenwood said that even in states where split-party control could lead to gridlock, “that gives an opportunity for community groups to get involved. Because as long as it isn’t just one party shoving something through in the middle of the night, there may be some sort of hearing or some sort of process where these are discussed.” Gridlock can also mean more court involvement in redistricting commissions—another arena in which there’s cause for both hope and caution.
The courts
In the 2016 SCOTUS Rucho decision, the court basically declared open season for gerrymandering by ruling that federal courts don’t have jurisdiction over partisan gerrymandering. Prior to that, in 2009, the court narrowed possibilities of relief under Section 2 of the Voting Rights Act, which gave underrepresented groups a chance to argue for fairer districts before the courts. Coupled with the later gutting of Article 5, the Supreme Court has practically gotten out of the business of enforcing democratically drawn voting districts altogether.
On the other hand, there have been positive movements in a few state courts and at the federal level. In the past two years, state supreme courts in Pennsylvania and North Carolina struck down gerrymandered maps. Michigan’s new independent redistricting commission has so far survived an attempted lawsuit by Republicans claiming the commission somehow deprives them of their civil rights. (The Campaign Legal Center is representing Michigan’s commission before the Sixth Circuit Court of Appeals; arguments in the case were heard on Wednesday.) The Rucho decision may well turn out to be a net positive by exempting federal courts from being able to rule on commissions designed to limit political gerrymandering.
SCOTUS has also issued a few other potentially positive decisions for people and organizations seeking to create competitive voting districts. In 2015, the court rejected Alabama’s efforts to pack Black voters into a small number of districts. And in 2016, the court rejected conservative activists seeking to force states to draw districts according to the number of adult citizens living in them rather than according to the total population of those districts.
Another redistricting challenge came courtesy of COVID 19.
Census delays
Because of state constitutional and legal mandates or as the result of other factors, several states could run into issues with redistricting as a result of the COVID-caused delays in release of data from the 2020 U.S. Census. The Brennan Center report cites potential issues including Virginia’s odd-numbered-year legislative elections, legally mandated backup processes in five states, and the risk of special legislative sessions which “significantly increases the risk of [partisan] abuses” in the redistricting process.
“I think everybody was like, ‘This is a new decade, we’re getting prepared, we’re planned, we’re ready, data’s coming in February and March, and let’s go.’ And now that’s all changed,” said Greenwood.
But while an overview of the anti-gerrymandering landscape leads to a sense of cautious optimism—with an emphasis on the word cautious—there are also a few factors that are nothing but positive for the work of mandating competitively drawn districts.
A growing focus of funders and researchers
The Funders’ Committee For Civic Participation Participation has more than 70 organizational members making grants to protect democracy, including promoting competitive districts. All About Redistricting, a site created by Loyola Law School Professor Justin Levitt, is “one-stop shopping” for anything an activist may want to know about the redistricting process. The Redistricting Data Hub is just that—hard data from the Census Bureau, election results matched to precinct boundaries, and more. PlanScore is a trove of historical data related to partisan gerrymandering that also has a tool to judge a proposed plan’s fairness.
The newly available technology alone has gone a long way to leveling the playing field between pro- and anti-democracy forces. In 2010, the Campaign Legal Center’s Greenwood told Blue Tent, “the technology had advanced so far that very precise gerrymanders could be drawn by experts with lots of money, but that wasn’t as available to the outside groups.” Today, on the other hand, “they’ve done a pretty good job of getting a decent amount of those tools out to the public. So it won’t just be an insider’s game, which I like.”
The above doesn’t even take into account the efforts of the NDRC; its affiliate organization All On The Line; the Campaign Legal Center; and organizations including Common Cause, the League of Women Voters, and many others for which partisan gerrymandering is either a main focus or an important secondary matter.
NDRC affiliate All On The Line alone has held 120 trainings “virtually across the country” targeting at least a dozen states, Mitchell said. More than 7,500 volunteers have attended, with these trained activists playing an important role as part of the “tens of thousands of activists” the organization has recruited nationwide.
In terms of organizations for which gerrymandering is an important secondary issue, Greenwood said, “groups like Planned Parenthood know that if you get gerrymandered legislatures, it makes it harder for them to get their policies through.” So while such groups aren’t actively working on redistricting, “they will attend meetings about this type of thing and be involved with it.”
This brings us to the final factor that may spell very good news for the fight for fair districts in 2021.
Public awareness
In 2019, the Campaign Legal Center commissioned polls from both a Democratic and a Republican-aligned pollster on the topic of gerrymandering. The result? A strong show of support for independent redistricting commissions and a desire for the Supreme Court to establish clear rules for what constitutes an unconstitutional partisan gerrymander. In 2018, the Michigan push for a ballot proposal establishing an independent redistricting commission garnered national, and even international, press.
Unlike a decade ago, U.S. voters now know what gerrymandering is—and they know they don’t like it.
The public is “much more aware and informed than a decade ago,” the NDRC’s Mitchell said—and Republicans are helping build that awareness. “The Republicans are openly telling the American people that there are plans to win back the majority in the house of representatives by cheating the voters.”
