How to unrig democracy

The Census Bureau has finally released the granular data from the 2020 Census that will allow states to begin the redistricting process. The only thing at stake is the future of democracy itself. 

Redistricting is purportedly a process to ensure that each member of Congress represents roughly the same number of people. Part of this process involves the reallocation of Congressional seats from one state to another. California, Illinois, Michigan, New York, Ohio, Pennsylvania, West Virginia will all lose a seat and, therefore, need to eliminate one Congressional district. Florida, North Carolina, Colorado, Montana, Oregon will add an additional Congressional district. Texas will add two new Congressional districts. 

Further, except for the six states that only have one Congressional seat, all states will need to redraw their lines to reflect internal shifts in population. States also use the new Census data to redraw district lines for members of the state legislature.

Members of both parties have historically attempted to manipulate redistricting to gain a political advantage — slicing and dicing states to secure the maximum number of seats — in a strategy called gerrymandering. But, in recent years, Republicans have seized an advantage with increasingly brazen tactics. In 2018, for example, "Wisconsin Democrats won the majority of the statewide vote but only 36 of 99 state assembly seats." After the 2010 Census, North Carolina Republicans attempted to gain more Congressional seats by packing Black voters, who overwhelmingly support Democrats, into two oddly shaped districts.

The 2020 redistricting process, which will play out over the next few months, could lock in a decisive advantage for Republicans for the next decade. In 20 states which oversee 187 Congressional districts, Republicans have full control of the state government and, therefore, the redistricting process. Democrats have similar control in just 8 states which oversee 75 Congressional districts. The remaining Congressional seats will be determined by independent commissions or states with divided governments. 

In previous years, redistricting has been somewhat constrained by the courts. But, since 2010, the Supreme Court has significantly diminished the federal judiciary's ability to rein in gerrymandering. As a result, in 2022, Democrats could "win the national popular vote for the House by 2 or 3 points like they did in 2020 — yet they still lose 10 or 15 seats." The current Democratic margin in the House is just five seats. 

The diminished role of the Voting Rights Act and the courts

Gerrymandering has been deployed to deprive racial minorities of political power. This was initially done by spreading out minority voters across many districts. Later, growing minority populations were packed into as few districts as possible. 

Regardless, prior to 2013, redistricting proposals in areas with a history of racial discrimination required pre-clearance by the Justice Department under the Voting Rights Act. This included all of Texas, which is adding two new districts, and parts of Florida, which is adding one. 

In the 2013 case of Shelby v. Holder, however, Chief Justice John Roberts gutted the Voting Rights Act and ended the preclearance process. This means that, for the first time in decades, the Texas legislature will be able to redraw its lines without Justice Department oversight. 

The ability of the legal system to curb the excesses of gerrymandering took another blow in the 2019 case of Rucho v. Common Cause. In that case, Roberts said that partisan gerrymandering was “non-justiciable.” That means courts do not have a role in determining whether gerrymandering for partisan purposes goes too far. Federal courts, "relying on the work of respected political scientists," had come up with standards and used them "to strike down partisan gerrymanders in Wisconsin, North Carolina, Ohio, Michigan, and Maryland." But Roberts dismissed all of that as “sociological gobbledygook.”

The ways to fight back

There are still ways to fight against gerrymandering. One way is to take the state legislature out of the process and establish an independent commission to establish legislative districts based on neutral principles. There are ten states that give primary responsibility for redistricting to such a commission. A few other states have established commissions that have an advisory role or are a backup if the legislature can't approve a map.

If such commissions controlled the process in all fifty states, it would solve much of the problem. But right now, more of them are in place in large states controlled by Democrats, including California, Colorado, and New Jersey. Republicans that have gained power over the state legislature through gerrymandering are predictably unwilling to cede the power to gerrymander. In some states, it may be possible to override the legislature through a ballot amendment. 

While federal courts will no longer strike down partisan gerrymanders, no matter how severe, state courts are still an option. In 2018, the Pennsylvania Supreme Court struck down a partisan gerrymander of the state's Congressional districts. That map "was designed to pack as many Democratic voters as possible into Pennsylvania’s 1st, 2nd, 13th, 14th and 17th districts." It allowed Republicans to gain a 13-5 edge in the state's congressional delegation despite Republicans and Democrats securing a roughly equal number of votes. The map featured districts that looked like this:

The court found the map violated Section 1, Article 5 of the state constitution which provides that "Elections shall be free and equal." An excerpt:

By placing voters preferring one party’s candidates in districts where their votes are wasted on candidates likely to lose (cracking), or by placing such voters in districts where their votes are cast for candidates destined to win (packing), the non-favored party’s votes are diluted. It is axiomatic that a diluted vote is not an equal vote, as all voters do not have an equal opportunity to translate their votes into representation. This is the antithesis of a healthy representative democracy. Indeed, for our form of government to operate as intended, each and every Pennsylvania voter must have the same free and equal opportunity to select his or her representatives.

Under new maps, the Pennsylvania Congressional delegation is now evenly split, with 9 Democrats and 9 Republicans. The decision "gave states a blueprint" to strike down partisan redistricting and could be a "powerful new tool."

While states no longer need to preclear new districts under the Voting Rights Act, maps designed to dilute the votes of racial minorities could still be challenged in federal court. In the 2016 case of Cooper v. Harris, a majority of the Supreme Court found that "[t]he sorting of voters on the grounds of their race remains suspect even if race is meant to function as a proxy for other (including political) characteristics" and struck down North Carolina's maps. The Supreme Court, however, is more conservative than it was in 2016 and it's unclear if future challenges to racially gerrymandered districts would be successful. 

The ultimate solution to the problem of gerrymandering would be federal legislation, like the For the People Act, that would "ban gerrymandering, set uniform national rules for map drawing, and create independent commissions to draw all congressional districts." That legislation, however, has little chance of advancing unless more Senate Democrats support reforming the filibuster.