Marcia Johnson

Impact of Redistricting and Partisan Gerrymandering on Rights, Freedoms & Democracy

Marcia Johnson

Co-Director of the Voting RIghts Project, The Lawyers’ Committee for Civil Rights Under Law

Throughout its history, the United States has struggled to live up to the ideals of its founding. In the beginning only White men with property could vote, about 10 – 15 percent of the population. After the U.S. Civil War, a series of constitutional amendments expanded the right to vote. Notably, in 1870, the 15th Amendment prohibited voting discrimination and in 1920, the 19th Amendment prohibited voting discrimination on the basis of sex. However, it was not until the passage of the Voting Rights Act of 1965 (“the VRA”) that all eligible citizens gained the right to vote, transforming American democracy and ensuring that voters of color could elect their candidate of choice. The equal opportunity to elect a candidate of choice is determined by the redistricting of electoral districts after each decennial census. And it was three years before the passage of the VRA that the U.S. Supreme Court rejected the argument that redistricting was a political question and not subject to judicial review, ruling in Baker v. Carr that “the right to elect legislators in a free and unimpaired fashion is a bedrock of our political system.”

Since its passage, the VRA, along with the Equal Protection Clause of the 14th Amendment of the U.S. Constitution, provide legal protections against voting discrimination in the redistricting process. This discrimination has been achieved in several ways: 1) racial gerrymandering - when voters are placed in electoral districts predominantly on the basis of race known; 2) packing - when African American voters are packed into a single district in order to limit their opportunity to elect more than one representative of choice; and 3) cracking - when African American voters are split into multiple districts in order to prevent them from forming a majority and undermining their ability to elect their candidate of choice.

Two seminal provisions of the VRA - Section 2 which codified the 15th Amendment prohibiting voting discrimination, and Section 5 which required jurisdictions with a history of discrimination in voting to submit voting changes for federal review before they could be implemented - formed the backbone of the fight against voting discrimination. Studies have found that the majority of cases filed under Section 2 of the VRA were filed in jurisdictions that had to submit voting changes under Section 5.

The VRA opened the door to African American representatives in the Congress. In 1972, Barbara Jordan became the first Black woman elected to the Congress from the South. Before 1990, most Southern states had not elected an African American representative to Congress since the end of Reconstruction. Following 1990, because of the protections of the VRA, the number of Black representatives in Congress from states fully covered by Section 5 increased significantly. Today, there are 18; most of these members are Democrats.

Following the 1990 redistricting, in Shaw v. Reno, a case in which white voters in North Carolina brought a racial gerrymandering claim challenging a district to provide African American voters the opportunity to elect their candidates of choice, the Court ruled that voters could not be placed in districts predominantly based on race. African American voters began bringing racial gerrymandering claims to address the cracking and packing of African American districts.

In 2019, in Rucho v. Common Cause, the Court ruled that partisan gerrymandering was not subject to judicial review. This holding occurred at a time when states accused of racial gerrymandering defended maps that made it harder for African Americans to elect their candidate of choice by claiming they assigned voters to districts based on partisan, not racial considerations. This past July, in Alexander v. SC NAACP, the Supreme Court rejected the lower courts’ finding that the state engaged in racial gerrymandering at the expense of African American voters, ruling that plaintiffs must show that the state could have achieved its partisan interest without harming minority voters.

In 2023, the Brennan Center for Justice reported that of the 38 cases challenging redistricting maps as being discriminatory after the 2020 Census, 29 are in states that used to be subject to federal review under Section 5 of the VRA (Brennan Center for Justice, 2024). These states are no longer subject to Section 5 because in 2013, the U.S. Supreme Court, in Shelby County v. Holder, weakened VRA protections when it nullified its application after determining that the formula that determined which jurisdictions had to submit voting changes for review was unconstitutional. This weakening continued in the 2021 Brnovich v. DNC decision when the court adopted new deadlines that will make it harder for voters to bring claims under Section 2.

The combination of the Shelby County, Brnovich and Alexander decisions now make it more difficult to challenge voting discrimination. The new requirement to disentangle race from partisanship is particularly challenging when the majority of Democrats in Congress in the Deep South are from majority-minority districts (see Table 1).

Case Law

Alexander v. SOUTH CAROLINA CONF OF THE NAACP, 144 S. Ct. 1221 (U.S. 2024).

Baker v. Carr, 369 U.S. 186, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962).

Brnovich v. DEMOCRATIC NAT. COMMITTEE, 141 S. Ct. 2321, 594 U.S., 210 L. Ed. 2d 753 (2021).

Rucho v. Common Cause, 139 S. Ct. 2484, 588 U.S. 684, 204 L. Ed. 2d 931 (2019).

Shaw v. Reno, 509 U.S. 630, 113 S. Ct. 2816, 125 L. Ed. 2d 511 (1993).

Shelby County, Ala. v. Holder, 570 U.S. 529, 133 S. Ct. 2612, 186 L. Ed. 2d 651 (2013).

References

Brennan Center for Justice. (2024, August 2). Redistricting Litigation Roundup. Brennan Center for Justice. https://www.brennancenter.org/our-work/research-reports/redistricting-litigation-roundup-0