Civil rights groups and voting rights advocates knew they were entering a new frontier this redistricting cycle, the first after the Supreme Court gutted a cornerstone provision of the Voting Rights Act of 1965: the preclearance regime, which required certain states and counties with a history of racial discrimination in voting practices to report any changes to election law, practice, or procedure for federal review and approval—including their redistricting plans.
In its 2013 decision on Shelby v. Holder, the high court ruled that Section 4 of the Act, which determined that the jurisdiction of the preclearance regime—Section 5 of the Act—was outdated and therefore unconstitutional. Things had changed, the court’s narrow 5-4 majority argued, and the success of the preclearance regime in those states and counties over more than 50 years proved that it was no longer needed. Without a jurisdiction, Section 5 became unenforceable. Waves of voter suppression laws immediately swept through the states formerly held under preclearance, some within 24 hours of the decision.
And as voting rights advocates feared, several state legislatures have set their sights on the once-in-a-decade redistricting process to further steamroll voters of color for political gain, drawing gerrymandered maps that dilute their voting power and reduce the number of majority-BIPOC districts to diminish their representation. While independent redistricting commissions have been effective at reducing partisanship in the redistricting process in some states, in those where legislatures maintain control over map drawing, litigation is often the only recourse for voters of color to protect themselves. Such cases often take years to resolve, all the while allowing for the harm to remain active until a decision is reached. However, if they’re decided in voters’ favor, the precedents can safeguard against gerrymandering elsewhere in the country or, in some cases, outlaw it altogether.
Now, communities impacted by gerrymandering are using the courts to test the strength of what remains of the Voting Rights Act at the federal level, and explore what protections state laws might offer. So far, results have been mixed.
In February, the conservative-majority U.S. Supreme Court reversed a lower court order for Alabama (one of the states previously covered under preclearance) to redraw its congressional map. The lower court had found that the legislature-drawn plan likely violated Section 2 of the VRA, which prohibits racially discriminatory voting procedures, because it only included one district where Black voters would have the opportunity to elect a candidate of their choice when there could’ve been “two districts in which Black voters either comprise a voting-age majority or something quite close to it.” With a second district, Democrats were likely to pick up another seat in the House in the fall. The court gave the legislature 14 days to redraw the map accordingly, but when the state appealed to the Supreme Court, the justices ruled in a 5-4 decision to pause the lower court’s decisions on the grounds of maintaining the status quo and not derailing the state’s upcoming primary, leaving the discriminatory map in place.
The decision’s effect was almost immediate. The following month, a federal judge cited the Supreme Court’s newly established precedent in a ruling to keep Georgia’s redistricting maps in place despite finding that the plaintiffs had presented enough evidence that the maps violated Section 2 by diluting the representation of Black voters. Georgia, another state formerly under preclearance, is projected to be one of the fiercest battlegrounds this midterm.
“It tends to happen that, when harmful things occur in one southern state, it sets a trend for other states [in the South] to follow,” said Jesús Rubio, Georgia state director for Mi Familia Vota, a national organization working to build Latinx political power. “That’s exactly what occurred: the federal judge here in Georgia saw the Alabama Supreme Court case and threw it out on the grounds that it was so similar to that case.”
“Why do people have to wait to have their rights?”
Cases involving threats to the voting strength of communities of color are still fair game for the federal and high courts, but those cases were difficult to prove to begin with: claims of racial gerrymandering require plaintiffs to prove that lines were intentionally drawn to dilute the political power of minority voting blocs, whereas cases brought under Section 2 of the VRA must be tested by the “totality of circumstances.” Litigants must point to conditions, known as the 1982 Senate Factors, such as a state’s history of official discrimination in voting or other areas that affect the voting process, or burdens on political participation due to the continuing effects of discrimination in such areas as education, employment, or health. And while Section 2 cases don’t require explicit proof of intent, meeting the “totality of circumstances” test often involves producing a body of evidence that strongly implies that at least some intent was involved.
“I don’t think people know that voting rights lawsuits are extraordinarily complicated,” said Sonni Waknin, a managing attorney for the UCLA Voting Rights Project. “It’s not just about lawyers; you need data scientists, social scientists, and historians to prove, or disprove, evidence of a voting rights violation.” Gathering proof can be both cost- and time-intensive—both of which frustrate efforts to throw out gerrymandered maps within the same cycle that they’re approved.
“The litigation solution just means that you’re going to wait,” said Waknin. “You don’t get the relief now, and that’s harmful in so many ways. Why do people have to wait to have their rights again?”
And that was before the barrage of attacks on the VRA since the Supreme Court signaled in its Shelby decision that it was now less interested in protecting voting rights. Without Section 5 protections in place, Section 2 of the VRA took on greater significance as one of the last lines of defense for voters of color to protect themselves against discriminatory laws and line-drawing designed to suppress their political power—which explains why Section 2 appears to be under siege now.
Last year, in its decision in Brnovich v. Democratic National Committee, the Supreme Court reversed a 9th Circuit ruling that a pair of Arizona voting laws were racially discriminatory (and therefore violated Section 2) for disenfranchising voters who vote in the wrong precinct and limiting who can deliver an absentee ballot to a polling place. In doing so, the ruling narrowed the scope of Section 2 claims that can successfully move forward before the Court, and tacitly endorsed the “Big Lie” that widespread election fraud justifies targeted voter suppressive legislation.
These days, advocates and legal experts expect courts to be more hostile to redistricting challenges brought under the VRA.
“The reality is that those claims do face a lot of headwinds. They were always hard claims to win,” said Michael Li, senior counsel in the Brennan Center for Justice’s democracy program. “But I think it’s fair to say that it’s also gotten harder this cycle because the courts have gotten more conservative and are skeptical about the use of race in American society in general.”
Litigation without Section 5
Perhaps the cruelest irony of the VRA’s slow dismantling is that Congress passed the law expressly because case-by-case litigation was not effective enough to address the rampant, widespread racial discrimination against voters of color in Section 5-covered jurisdictions. Before the VRA, states fully covered under Section 5 would either simply ignore court orders or find another way to suppress voting rights for communities of color—not unlike what we’re seeing this cycle.
Under Section 5, covered jurisdictions had to submit redistricting plans to the Justice Department and prove that new district lines would not affect the ability of communities of color to elect the candidates of their choice. Without it, the burden of proof now rests on the Justice Department to prove that maps are discriminatory. Such is now the case in Texas, where the Justice Department has filed a lawsuit charging that both the state’s congressional and legislative redistricting plans intentionally discriminated against Latinx and Black voters there. It joins a slew of private lawsuits brought against the state on the same grounds.
Between 2010 and 2020, Texas grew by nearly 4 million residents, according to the complaint in United States v. Texas, and people of color represented 95% of that population growth—half of which gain is attributed to Latinos. Consequently, Texas’ House delegation gained two new seats, but the congressional map the legislature drew would ensure that those new districts have white majorities—who will then elect the new representatives. What’s more, the congressional plan actually reduces the number of districts with a Latinx voting majority, from eight to seven. Similarly, in the state legislature, the districts with a Latinx voting majority dropped from 33 to 30. The lawsuits together allege that the state was flagrant in its intent to deny electoral opportunities for voters of color, particularly for Latinos.
Advocates for Latinx political power are no strangers to this process in Texas: according to a 2018 report from the U.S. Commission on Civil Rights, Texas has violated the VRA with racially gerrymandered maps in every redistricting cycle since the Act was enacted; they knew to expect nothing less this cycle. Except, this time, there was no preclearance regime to hold back the legislature from its worst impulses.
“We see this really direct attempt to dilute power, this extra effort being taken to make sure that we are not showing up on maps, and that the maps that are being drawn and passed are not actually accurate of the community presence on the ground,” said Rubio’s counterpart Angelica Razo, Texas state director for Mi Familia Vota.
In a public hearing, Republican state Sen. Joan Huffman, who chairs the Texas Senate Special Committee on Redistricting, claimed that the maps were drawn “race blind,” without reference to any racial data, and were reviewed by legal counsel to make sure they were compliant with federal anti-discrimination law. However, she declined to explain their process for drawing district lines, or what factors were considered in mapmaking, invoking legislative privilege.
Similarly, North Carolina’s legislature was accused of drawing state House and state Senate districts that diluted Black voting power. Republican legislators defended that they intentionally excluded racial data in their approach to redistricting because they were sued for using race last cycle, state Sen. Ralph Hise, a Republican and co-chair of the legislature’s redistricting commission, told CNN, and that they didn’t read the law as requiring them to incorporate race.
“That’s a new defense that they’ve come up with,” responded Thomas Saenz, president and general counsel of Mexican American Legal Defense and Educational Fund (MALDEF), a regular advocate for plaintiffs in redistricting battles in Texas. “There’s no such thing as ‘race-blind’ redistricting. And even if it were true, it’s irrelevant. There’s no area of the law, including this one, where you’re allowed to claim you are ignorant, and therefore your violation should be ignored. It doesn’t work like that.”
A similar defense has been used in Alabama, which, in its appeal to the Supreme Court over its congressional map, is challenging how much race can be a consideration in VRA compliance when it comes to redistricting—a consideration that the Supreme Court will deliberate on in the fall.
“It seems kind of nutty, right? How do you comply with the Voting Rights Act without thinking about race? It’s a race-explicit statute!” said Li. “It doesn’t make sense, but this is the world of the Supreme Court: you have to draw a car without thinking about a car too much.”
The danger, however, is that when the Supreme Court does take up the full Alabama case in the fall, its conservative majority will seize the opportunity to rewrite the parameters of when race can be considered in complying with the Voting Rights Act, whittling away remaining protections for voters of color and providing ample cover for racially discriminatory voting practices to continue unabated.
Another well-worn defense is that any racially discriminatory maps are still legal because they were drawn solely on the basis of partisanship, hiding behind the Supreme Court’s 2019 ruling in Rucho v. Common Cause. In Rucho, the Court decided that federal courts cannot hear constitutional challenges to maps gerrymandered for political reasons, essentially giving carte blanche to partisan gerrymandering and at the same time providing a convenient cover for racially discriminatory maps: Now, legislatures can simply claim they were produced to meet partisan ends only, putting them beyond the purview of federal courts.
“That’s a longstanding contention: ‘We’re not doing this for race reasons; we’re doing this for party reasons,’” said Saenz.
It’s true that partisanship and racial voting patterns often overlap with some communities of color, but to treat them as homogenous would be a mistake. “If party and race coincide, that’s not a given,” said Saenz. “The Republican Party has so alienated minorities that they won’t vote for them. You don’t even get to say that’s not racial.”
“The law is on our side”
Despite some states’ efforts to put forth discriminatory maps and essentially claim in court that they did so by accident, there are still occasions for cautious optimism.
Ultimately, advocates believe that the law is on their side.
The Native American Rights Fund (NARF) has joined a suit in North Dakota challenging the state’s legislative map for diluting the Native American vote, namely, for the Spirit Lake Tribe and the Turtle Mountain Band of Chippewa Indians. The suit claims that the map approved by the governor packs a supermajority of Turtle Mountain citizens into a single house subdistrict while cracking other Turtle Mountain citizens and Spirit Lake citizens into nearby house districts and subdistricts—where the majority voting bloc often votes against Native Americans’ preferred candidates—shrinking their opportunity to elect two candidates of choice to the state house down to just one. The tribes had appealed to the state legislature’s redistricting committee in public meetings (which were held far from reservations) to have their reservations drawn into the same district. Michael Carter, a staff attorney for NARF, said that the tribes had also proposed what they believed would be fair redistricting maps to the legislature and provided a legal basis for why a district encompassing both reservations is required under the VRA. Their concerns were entirely ignored. “That really left the tribes with no choice but to bring the case,” said Carter.
Historically, Native Americans have had to rely on litigation to protect their voting rights against an onslaught of suppressive measures that prevent their meaningful participation in the political process, and yet, they have won more than 90% of the cases they’ve brought, according to NARF.
“We feel good about the case,” said Carter. “Otherwise, the tribes—and tribal members who are plaintiffs—wouldn’t have brought it. Of course, there’s a shifting legal landscape right now, and those developments have been concerning, but we don’t think that anything that has occurred so far, involving the Supreme Court or any other legal precedents, alters our policy, our case, our legal arguments, or our ability to pursue the remedies that the tribes are pursuing.”
Saenz feels equally confident about the case in Texas. MALDEF has litigated in the state for decades. “[Texas] loses cases year after year, decade after decade, and nothing has changed to appreciably alter that likely outcome,” he said. “I am quite confident that the law is on our side. Precedent is on our side.”
What’s more, while the Supreme Court’s rulings over the last decade have left states (and their respective legislatures) to their own devices, there are still state-level protections that provide some buffer against abuses of power in redistricting. “Free and fair” clauses in some state constitutions have helped pave the way for successful litigation against gerrymandering. In a 2018 redistricting lawsuit brought against the state, Pennsylvania’s Supreme Court found that its 2011 congressional redistricting map violated the state constitution’s Free and Equal Elections Clause, ruling that “[a]n election corrupted by extensive, sophisticated gerrymandering and partisan dilution of votes is not ‘free and equal.’” The decision set a legal precedent for other states with similar clauses in their constitutions to bring challenges against gerrymandered maps to state court.
Both North Carolina’s congressional and legislative maps this cycle were struck down by the state’s Supreme Court for violating provisions in the state constitution, including those guaranteeing free elections and equal protection. The court imposed a new map that wouldn’t diminish Black representation.
And Ohio’s Supreme Court has rejected three rounds of state legislative maps drawn by the GOP-dominated redistricting commission in barely two months for being chronically noncompliant with the state constitution’s anti-gerrymandering law, a 2015 amendment added by Ohio voters explicitly outlawing partisan gerrymandering (and, ironically, creating the same commission that ultimately drew the rejected maps).
The League of Women Voters of the United States—a longtime litigant in gerrymandering cases— was a plaintiff in two successful lawsuits in Ohio this cycle, in Adams v. DeWine and League of Women Voters of Ohio v. Ohio Redistricting Commission.
“Our hope, through strategic litigation, is to hold our elected leaders accountable and protect the freedom to vote at all costs,” said Celina Stewart, chief counsel and senior director of advocacy and litigation for the League of Women Voters of the United States, in a statement to Prism. “There is too much at stake, and without action, there will be no progress.”
In the years to come, there will be more court cases probing the nexus of race and voting rights, spurred by the challenges brought by this redistricting cycle. What remains to be seen is how the courts will handle when and how race intersects with politics—whether they will ignore it, deny it, or face it.
“It is hard to disentangle race and politics,” said Li. “But courts are set up to disentangle these sorts of things, to figure out motive. Just because these cases are hard doesn’t mean they don’t have a remedy.”
For Saenz, the only wild card is the composition of the courts. Before Trump left office, he appointed more than 200 judges to the federal bench—including some of the most ideologically reliable conservatives in the movement. How they’ll respond not only to a rapidly growing minority voting bloc—and accompanying demographic fear—is the danger.
“It would be naïve of me to say that demographic fear has not seeped into the overall political discourse of the country, and that, in turn, can have an effect on the courts,” said Saenz. Still, he said, “if we have judges who are going to stick to the law as developed, and who, in good faith, are going to apply the facts, then I’m confident that we have strong cases, not just the ones we’ve filed but future ones.”
Li observes much of what has happened this cycle as just that: a visceral reaction to demographic change, or, more accurately, “an emerging multiracial America.” While the most insidious plays for partisan gains have long-term consequences for communities of color, they are still shortsighted and, ultimately, futile. “It’s Republicans taking a look at the future and deciding that it scares them instead of competing for it,” he said. “It’s not like the country is going to stop getting more diverse.”