Brennan Center finds widespread gerrymandering in latest round of redistricting

Ohio’s Supreme Court threw out the state’s latest congressional and legislative maps after determining GOP lawmakers used the process to entrench their partisan advantage. A nationwide study from the Brennan Center for Justice suggests they’re far from alone.

The think tank’s assessment of redistricting now that about half of states have submitted maps shows that, on both sides of the aisle, where partisans control the process, they’re using it to insulate their advantages. That could mean a decade-long rightward tilt, the authors argue, because Republicans control the drafting of 187 congressional districts compared to Democrats’ 75. Meanwhile, states with independent commissions have produced maps with far less partisan bias. The authors argue Congress must codify explicit limits on gerrymandering to counteract the trend.

Brennan Center attorneys were part of the legal team representing the parties who successfully challenged Ohio’s latest legislative maps in court.

One of the authors, Brennan senior legal counsel Michael Li said communities of color bear the brunt of Republican mapmakers. It’s particularly evident in the South, where lawmakers are getting their first crack at redistricting without the Voting Rights Act preclearance requirements struck down in Shelby County v. Holder.

Li points to the Fort Bend area just outside Houston. It used to be predominately white, but growing minority populations, particularly Asian, have made the area much more diverse. In 2018 and 2020, Li notes an Indian American candidate nearly won the congressional seat.

“In redrawing the map what they did is they took big chunks of the Asian community and other communities and stuck them into adjacent districts and then backfilled them with rural white voters,” Li said. “And so they really sort of dismantled this sort of emerging coalition of districts in the suburbs.”

The study pointed to Alabama, where many Black voters are packed into a single district, and Arkansas, where Little Rock was carved up for “the first time in history,” spreading Black voters among three districts.

Throughout the South the report notes five of six states that turned in maps last year face “significant charges of racial discrimination.” And around the country the authors argue, minorities have seen their electoral prospects knee-capped by GOP redistricting plans, despite making up “nearly all” the population growth over the last decade.

“Republican map drawers, especially in the South, haven’t just declined to create any new electoral opportunities for these fast-growing communities,” the authors wrote, “in many instances they have dismantled existing districts where communities of color won power or were on the verge of doing so.”

And although these efforts disadvantage minority communities, those communities face a more difficult road in federal court because of another case decided since the last round of redistricting. Rucho v. Common Cause determined cases of partisan gerrymandering are “nonjusticiable,” and therefore can’t be tried in federal court. Groups can still bring cases of racial gerrymandering, but the Rucho decision gives map drafters an escape hatch — at least in federal court — if they argue the map was drawn to disfavor a party rather than a minority community.

But Li highlights an important shift in Republican strategy as well. Instead of attempting to expand the number of Republican seats, many states have chosen to maximize Republicans’ advantage in the seats they already hold. In states controlled by the GOP, the number of districts where Trump won by 15 points or more jumps from 54 to 70 in the latest maps.

In Texas, Li said, Democrats have the same share of seats, but any bit of competitiveness has evaporated.

“Under the new map, Democrats could get close to 58% of the vote and still have 37% of the seats,” Li said. “In other words, Democrats could have, you know, Texas could be a blue state, and Republicans could have close to a two-to-one majority.”

By and large, the report argues independent commissions have been a success. In particular, the authors point to Michigan where a new commission took over drafting after previous maps were heavily skewed in Republicans’ favor.

Ohio Supreme Court Justice Maureen O’Connor, a Republican and the swing vote in cases invalidating the state’s maps, took the unexpected step of drafting a separate concurrence to make the case for an independent redistricting commission in Ohio.

But at the same time, Li cautions, “not all reforms are created equal.” In cases where elected officials retain control of the drafting process, the outcomes haven’t worked out very well. In Ohio, lawmakers approved partisan maps in spite of reforms meant to encourage bipartisanship. In states like Iowa and Utah, where non-partisan panels proposed maps, lawmakers simply ignored them and passed their own gerrymandered maps.

Li allows that state reforms like Ohio’s prohibition on favoring a party or incumbent do offer a silver lining, but it’s a remarkably thin one.

“It’s sort of like a disaster movie where everything is falling apart and nothing is gonna happen, but then a hero sweeps in and saves the day,” he chuckled. “But you know, the city is still in ruins, right?”

Li and his fellow authors make a strong pitch for the Freedom to Vote: John R. Lewis Act which would codify limits on partisan gerrymandering.

“Which will ultimately help ensure not only partisan fairness but racial fairness, right,” Li argued. “Because it will eliminate the excuse that states are using for their discriminatory maps.”