How an outdated practice is undermining voting power for people of color

In the spring of 2013, a coalition of progressive groups led by the NAACP’s North Carolina chapter united to protest a string of regressive laws enacted by the state’s Republican-dominated legislature. Over just a few months, North Carolina’s legislature rejected Medicaid expansion, cut unemployment benefits, raised taxes on the poor, and enacted a draconian voter ID law.

And it all started with a gerrymandered electoral map.

Gerrymandering is the process of drawing electoral maps to benefit a particular group or political party. A comprehensive survey of redistricting procedures in 87 countries around the world found that the U.S. and France are the only ones with winner-take-all electoral systems that allow self-interested legislators to draw their own electoral maps. In most other nations, however, this responsibility is in the hands of civil servants or independent commissions.

The U.S. Constitution requires electoral districts to be redrawn after every census, and districts must be drawn so that each has as close to equal populations as is practically possible. Due to differing growth rates and population shifts, every electoral district in America has to be reshaped every 10 years; and since legislators redraw electoral maps, there’s an irresistible temptation to lock in any current partisan advantage.

Since legislators redraw electoral maps, there’s an irresistible temptation to lock in any current partisan advantage.

The advent of sophisticated mapping software has made this problem even worse. It’s now possible to finely tune electoral maps down to individual houses to include or exclude voters based on their party registration, household income, race, and other factors. The result: districts that only rarely flip from one party to the other.

For instance, in 2011, Republican legislators in North Carolina enlisted Tom Hofeller, a consultant who specializes in drawing Republican-favorable electoral maps. “This ultra-conservative demographer drew the most racist redistricting lines we’ve seen since the 19th century, effectively gerrymandering and rigging the election,” North Carolina NAACP president Rev. William Barber told The American Prospect.

But the state’s Republican leaders denied having racist motivations, claiming instead that the maps were drawn to comply with the federal Voting Rights Act (VRA) of 1965. “While districts that adjoin majority black districts may become more competitive for Republican candidates because of compliance with the VRA, such competitiveness results from compliance with the VRA,” according to a joint statement by House and Senate redistricting committee chairs David Lewis and Bob Rucho.

Intent aside, this gerrymandering paid off for Republicans. In November 2012, Democrats won the popular vote for Congress in North Carolina, but won only four of 13 districts and a mere 36% of seats in the state legislature. Republicans have since used their supermajority to push through unpopular legislation, including this year’s anti-transgender “bathroom bill.” Last month, a panel of federal judges found the 2011 map unconstitutional because the legislators’ primary purpose “was to draw a predetermined, race-based number of districts.”

It’s a situation that has played out across America. In Texas, Republicans disregarded Hofeller’s advice to play it safe, and drew a map designed to hand all four of the state’s new congressional seats to Republicans—even though three-quarters of the state’s new residents are Latinx or black. Their plan backfired, and a federal court ruled that the map diluted voting power for people of color, in violation of the Voting Rights Act. Under a revised map drawn by the court, Democrats won three of the four seats.

Meanwhile, in Alabama, Republicans packed black residents into existing majority-minority districts, “bleaching” the districts around them, and making them safer for GOP candidates. In one district, legislators added nearly 16,000 black residents—but only 36 white residents. Democrats argued it was a racial gerrymander, designed to dilute the black vote, while simultaneously signaling to white voters that they should vote for Republicans over “the black party.” Last year, the U.S. Supreme Court agreed, ruling that the Alabama legislature had unconstitutionally used race as the main factor in drawing electoral districts.

After their victories in the 2010 midterm elections, Republicans were able to draw favorable gerrymanders in a majority of states, locking in their victory. So, despite the fact that Democratic candidates for the House of Representatives received 1.4 million more votes nationwide than Republican candidates in 2012, the GOP maintained a majority of 17 seats—something that’s only happened one other time since World War II.

“This isn’t how the American system of government was supposed to work.”

But this isn’t how the American system of government was supposed to work, according to Michael Li, senior counsel for the Brennan Center for Justice’s Democracy Program.

“Between 1880 and 1964, an incoming president would almost always start the beginning of the presidential term with a House of his party. There’s only one example where that didn’t happen, 1956 with Eisenhower,” Li explained. “Now, it’s entirely possible that Hillary Clinton could be in office for eight years and never have a House controlled by Democrats.”

Due to extensive gerrymandering of House districts, the Senate—which cannot be gerrymandered because its members are elected at large—is much more likely to change hands in 2016 than the House, despite the fact that only one-third of its members are up for reelection.

The Supreme Court’s 2013 Shelby County v. Holder decision, which invalidated Section 5 of the Voting Rights Act, will likely make matters worse. Section 5 required states and counties previously found to have engaged in discrimination to submit all election-law changes—including new electoral maps—to the Department of Justice for review before they went into effect. In Shelby County, the Supreme Court held that the 1960s-era formula used to decide which states were subject to preclearance was no longer constitutional, and needed to be updated to conform with current realities. So far, Congress has failed to adopt a revised formula.

Immediately after the Supreme Court’s decision, Southern states began to pass and enforce legislation that restricted voting, with voter ID laws particularly popular. Such laws disproportionately affect voters of color, who are less likely to have driver’s licenses or other qualifying photo IDs, and often face major obstacles and costs to getting them. While voter ID laws seem to be neutral, they can disenfranchise and discourage people of color from voting.

The next round of redistricting after the 2020 census will likely be more of the same without DOJ preclearance to block racial gerrymanders.

“Section 5 used to add a layer of protection, which is not there, and unless Congress acts, it’s not going to be there with redistricting in 2021,” Li said. “It looks like you will have single-party control in most of the South in 2021, by a party that happens to be the one that’s not supported by African Americans.”

With black and Latinx voters strongly preferring Democratic candidates, the likelihood of further racial gerrymanders after the 2020 census is high—though next time, legislatures may do a better job at hiding their motivations by following Hofeller’s advice to put as little as possible in writing (e.g., “‘Emails are the tool of the devil.’ Use personal contact or a safe phone!”).

There may, however, be an alternative: redistricting by independent commission.

Such a commission would take power to draw maps out of politicians’ hands, thereby reducing bias and conflicts of interest, and place it instead in an appointed body divorced from the political process. Seven states currently use commissions to draw congressional and state legislative maps, and in an eighth state—Iowa—maps are drawn by non-partisan civil servants.

In most of these states, legislative leaders appoint a majority of commissioners, who themselves appoint a non-partisan chair. The commission then follows established guidelines, such as keeping districts compact, keeping cities and counties intact when possible, and maintaining communities of interest (e.g. groups with common ethnic, cultural, economic, or geographic interests) in a single district. The extent to which commissions genuinely act independently, however, varies depending on the state’s political culture and the makeup of the commission—especially who and how many members it has. For instance, the Brennan Center’s Li noted that California’s 14-member, non-partisan commission has been more successful at achieving fair representation than New Jersey’s five-member commission made up of four politicians and a single independent.

While independent redistricting hasn’t significantly shifted the partisan makeup of California’s legislature or its congressional delegation, the types of legislators elected have changed. “Democrats in California have become more representative. You have more women, you have more Asians, you have more Latinos holding these seats, and that’s the important thing to realize,” Li said.

In stark contrast, Li recounted the time when he was at the Pennsylvania State Capitol, and saw a black boy look up at the photos of state legislators. “He said to his grandmother, ‘Grandma, I can’t tell them apart. They all look the same.’ And the reality is they all were middle-aged white men with gray hair,” he said.

“And you do wonder where the younger people were, and where are the different voices? Where are the people who really care about Black Lives Matter or about inequality in a different way?”

“Where are the people who really care about Black Lives Matter or about inequality in a different way?”

Some states—including Illinois, Indiana, Ohio, South Dakota, and Utah—have seen strong pushes for independent commissions in the past year, while others like Virginia have considered setting legal frameworks for legislative redistricting to prohibit partisan gerrymandering.

Unfortunately, redistricting reform is an uphill battle. Legislators, whether Republican or Democrat, are reluctant to give up political power, especially when it can have a major impact on their party’s electoral prospects. But all hope isn’t lost. Several states’ redistricting commissions, including those in California and Arizona, were adopted by referendum against the will of the legislature. While referenda aren’t possible in all states—the Illinois Supreme Court blocked a referendum on redistricting last month—they provide a way to bypass reluctant legislators.

Elsewhere, the road is more difficult. But continued pressure on legislators can have an effect, as in Indiana, which last year created a Special Interim Study Committee on Redistricting. And as independent redistricting spreads, it becomes an attractive alternative for states in which power is split between Democrats and Republicans.

Redistricting reform might not solve all of America’s political woes, but it may just help introduce new, essential voices into the electoral process.

Charles Paul Hoffman writes about comics, pop culture, and the law. He enjoys talking about Michel Foucault and how culture constructs societal norms.