By Margaret Newkirk and Greg Stohr, Bloomberg News
Texas has won two new congressional seats thanks to a surge in the population of people of color, who vote more often for Democrats. But the state’s Republicans will benefit because they’ll draw the maps allocating political power for the next decade.
The GOP-controlled legislature is expected to do what it did a decade ago when growth in minority communities earned the state four new congressional districts: try to benefit white Republicans. They’ll do so through the dark art of gerrymandering, by either crowding the other party’s voters into a limited number of districts or splitting them up so they’re outnumbered. Packing or cracking it’s called, respectively.
Republicans’ push to impose new ballot restrictions across the country has drawn the most attention. But the decennial redistricting process could have an even greater impact on democracy, as partisans draw maps designed to secure their power in statehouses — and, for the GOP, potentially retake control of Congress next year.
Outnumbered by Republican map makers this cycle, Democrats plan to pursue court challenges where they can. This time, they’ll have fewer legal options because the U.S. Supreme Court took away a key line of attack in 2019 when it ruled 5-4 that federal judges can’t toss voting maps for being too partisan.
”Now if a legislature says, ‘We’re drawing on the basis of partisan interests not racial interests,’ they’re basically, for lack of a better phrase, bulletproof in federal court,” said Jason Torchinsky, a lawyer who has represented Pennsylvania Republicans on voting maps and other election rules.
In Texas, the latest census figures showed that less than 13% of the roughly 4 million new Texans are non-Hispanic white. Donald Trump made inroads among Latinos in the Rio Grande Valley in the 2020 presidential race, and Republicans could try to convert a Democratic district there if they believe that shift is long term. Most of the Hispanic growth was concentrated in urban centers.
History suggests Republicans will be able to blunt the impact of such growth. In Austin 10 years ago, for instance, they split the Democratic city into six congressional districts, five of which were joined with enough outside areas to deliver GOP wins.
“They have used the redistricting process extremely well over the years to gain seats in Congress,” said U.S. Rep. Henry Cuellar, an eight-term Democrat from South Texas.
Texas is getting the biggest representation increase in the country. It’s one of three Southern states — along with North Carolina and Florida — where growth in Democratic-leaning minority and urban areas delivered new congressional seats but where Republicans will draw the maps. Combined with Georgia, Republicans in those states “could lock in a majority in Congress not only for 2022 but for the whole decade,” says Michael Li, a redistricting expert at the nonpartisan, liberal-leaning Brennan Center for Justice at New York University.
Republicans are hardly alone in their embrace of gerrymandering. Democrats are relying on Illinois’ Democratic-controlled legislature to give them a net gain of one seat in a state that lost population. And in Maryland, they could try to wipe out the state’s lone Republican district.
But Democrats won’t have as many opportunities to gerrymander, both because fewer blue states saw population growth and the party dominates fewer legislatures.
Republicans will control the maps for 187 congressional seats nationally, compared with 49 controlled by Democrats, 46 by nonpartisan or bipartisan bodies and 147 by independent redistricting commissions, according to Adam Kincaid, president and executive director of the National Republican Redistricting Trust, which is providing data, legal help and advice on redistricting to state Republicans. (The other six seats are in states with a single representative.)
The Republicans’ new dominance explains “why you see so much energy from the left trying to change processes and everything else,” Kincaid said. The GOP dominated redistricting in 2011 for the first time in a century after flipping control of 22 chambers the prior year.
Democrats are bracing for a wave of partisan gerrymandering in GOP-led states, said John Bisognano, executive director of the National Democratic Redistricting Committee, formed in 2017 under the leadership of Eric Holder, who served as President Barack Obama’s attorney general.
The organization was created “because of the grave concern about both Democratic readiness and Republican gerrymandering in this coming cycle,” Bisognano said. “And that certainly has not changed.”
The decennial redistricting of Congress is intended to adjust maps to accommodate population changes. For instance, each new Texas district will have about 767,000 people, up from more than 698,000 in 2010, according to state demographer Lloyd Potter.
In theory, districts that lost population — like rural Republican strongholds — would get geographically larger or joined with more populous areas, while districts that gained people would become smaller and more numerous. But gerrymandering — sculpting district boundaries to favor one’s party — has long allowed politicians of both parties to choose their own voters.
For congressional redistricting, nine states including California, Arizona and Michigan have created independent commissions to draw the maps. Advisory commissions operate in four other states, including New York, where the Democratic-controlled legislature will be able to reject and redraw the panel’s map.
Delayed this year because of the pandemic, redistricting has already begun in most states and will get traction when the U.S. Census Bureau releases detailed final numbers, most likely in August.
The Supreme Court’s 2019 ruling didn’t affect the right to challenge maps as racially discriminatory under the Voting Right Act, the landmark 1965 law that requires some districts have enough minority voters to let them elect their preferred candidates. Still, that won’t necessarily help Democrats overall, given that a heavily minority district can simply bolster Republicans elsewhere.In 2013, the high court gutted a separate part of the Voting Rights Act, nullifying a provision that had required voting maps in some states and localities to get federal approval.
Democrats might be able to press partisan-gerrymandering claims under state laws, as they did successfully in Pennsylvania before the 2018 election. But winning those types of cases typically requires both an amenable state judiciary and a state constitution with strong voter-protection provisions — a combination not found in many Republican-controlled states.
Florida, for example, has potent voting-rights rules embedded in its constitution. But all seven Florida Supreme Court justices are Republican appointees, including three named by Gov. Ron DeSantis.
Another battleground to watch is North Carolina, which was at the center of the 2019 Supreme Court case that upheld a map giving Republicans 10 of 13 congressional seats. Later that year, a state court invalidated the map for violating the state constitution, forcing a redraw that led to Democrats winning five of the 13 seats in the 2020 election.
“As is true in many states, the state constitution here in North Carolina is more protective than the federal Constitution,” said Allison Riggs, who leads the voting-rights program at the Southern Coalition for Social Justice and argued at the Supreme Court against the GOP-drawn map in the 2019 case.
Even so, North Carolina Democrats could face legal headwinds in the next redistricting cycle. At the time of the state court ruling, they were firmly in control of the North Carolina Supreme Court, and Republicans opted not to press an appeal there. But Republicans picked up two judicial seats in the 2020 election, leaving Democrats with just a 4-3 majority on the state high court.
And even with state court rulings, the prospect of U.S. Supreme Court review looms. Republicans have argued that state courts that redraw voting maps violate the U.S. Constitution by usurping the power it confers on state legislatures. Some conservative U.S. Supreme Court justices have embraced that argument in related contexts.
Going forward, “it will be easier for legislative map drawers to draw gerrymanders and avoid serious judicial scrutiny,” said Paul Smith, vice president of litigation for the Campaign Legal Center, a group that advocates for nonpartisan maps. “There are precious few legal theories out there to use to attack a gerrymander at this point.”
The National Republican Redistricting Trust is advising Republicans not to be greedy. “What we tell people in the states when asked, is: Number one, be smart. Number two, don’t overreach. And number three, follow all applicable state and federal laws,” said the organization’s Kincaid.
“What we are looking for are 10-year maps, maps that can hold up in court, and maps that are not going to explode on you in a cycle or two.”
Democrats have low expectations the GOP will follow such advice. “Until I see a Republican Party that is capable of showing restraint, I will not believe it,” said Bisognano of the National Democratic Redistricting Committee.
