“Partisan” Gerrymandering Is Really Just Racial Gerrymandering, Only Conveniently Rebranded

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The “Gerrymanderer” Elkana Tisdale Cartoon in the Boston Gazette, 1812

If you still think partisan gerrymandering is not about race, you might want to redraw your perspective. In a recent study, the Pew Research Center found that Democrats hold advantages in party identification among blacks, Asians and Hispanics, while Republicans have leads amongst whites. If you combine these trends with the fact that during the 2016 election, there were four times as many states with Republican-skewed state House or Assembly districts than Democratic ones, you might begin to see the problem. As expected, a fraction of these new district maps “packed” black voters into one or two districts, ultimately minimizing their potential influence in neighboring districts. Although the Voting Rights Act of 1965 and the Equal Protection Clause of the 14th Amendment grant minority voters legal protection, the blurry line between race and party has allowed state legislators to engage in race-based redistricting under the guise of partisan gerrymandering. This form of minority voter disenfranchisement is not only deliberate, but precisely calculated. Racial gerrymandering perpetuates racial inequality in America by taking away ethnic minorities’ right to vote fairly for candidates that will represent them. It is an unconstitutional practice that needs to be promptly addressed by the Supreme Court. Instead of attempting to take on the impossible challenge of distinguishing between racial and partisan gerrymandering, the courts should focus less on the intent of the gerrymander and more on its effect on minority voter populations.

Minority voter disenfranchisement is certainly not a new concept in the United States. Since this country’s founding, those in power have been known to utilize a variety of questionable tactics in order to hold onto it, more often than not at the expense of racial minorities. For years, blacks and other minorities had virtually no rights. It was not until the 14th Amendment was added to the Constitution that racial groups were granted citizenship, and equal protection under the law, amongst other rights. Even after African Americans and other minorities were granted the right to vote, legal forms of voter suppression prevented many of them from ever making it to the polls and ensured they remained second-class citizens. Once the Voting Rights Act was expanded in 1965 to attempt to overcome legal barriers at the state and local levels that prevented racial minorities from exercising their right to vote as guaranteed under the 15th Amendment to the U.S. Constitution, state legislators were forced to come up with more creative ways to dilute the power of minority voters. Moreover, the courts started to require states create majority-minority districts where the majority of the voting-age population belonged to a single minority. Surprisingly, by packing minority voters into a few districts, these redistricting plans had the unintended consequence of diminishing the potential power of racial minorities in neighboring districts. Since then, some Republican legislators have taken advantage of this effect by redistricting under the guise of majority-minority districts. The law states that “a State’s consideration of race in making a redistricting decision is narrowly tailored if the State has “good reasons” for believing that its decision is necessary in order to comply with the VRA.” Meaning that all these legislators have to do is present these majority-minority districts as compliant with the Voting Rights Act, even if their actual effect is detrimental to minority voters. Throughout the years, a series of racial gerrymandering cases brought before the Supreme Court have better defined illegal forms of race-based redistricting, while partisan gerrymandering remains virtually unchallenged. This creates a loophole for state legislators who aim to dilute minority voter representation, since they can always claim their redistricting plans are based on party affiliation alone.

In order to better understand the negative implications of racial gerrymandering, we must first examine partisan gerrymandering, how it works and what it looks like. After each census, district lines should be redrawn to ensure Congress and state legislatures remain representative. The ideal district map is one that has a range of representatives that reflect the political views of the population across the state. (Refer to video below) Yet, because the redistricting power lays on state legislators with their own political agendas, it is almost impossible for them to do so in an unbiased manner. Most state legislators take advantage of their ability to redraw district maps and use it to keep their respective parties in power. This is called partisan gerrymandering and it is defined as: the practice of drawing legislative and congressional district lines to maximize and perpetuate the power of an incumbent political party. In order to understand partisan gerrymandering properly, we must take a look at the following diagram:

As can be observed, districts can be drawn in a way that allows either of the two parties to win, it all depends on who is in charge of drawing the lines. Let’s take a look at the following video, which also attempts to explain partisan gerrymandering:

It is practiced by both the Democratic and the Republican party, although we will mostly focus on Republican forms of gerrymandering since these tend to negatively affect racial minorities more often. These gerrymandered districts sometimes end up weirdly shaped (see picture below),

clearly showcasing that these district maps are not drawn based on geography alone, but that other factors like party affiliation and racial identity are in play.

Despite the fact that partisan gerrymandering continues to undermine our democracy by resulting in misrepresented states, the Supreme Court has shied away from limiting the practice. However, they have ruled on numerous cases disputing racial gerrymandering, which refers to the intentional, not the accidental, segregation of voters on the basis of race. As previously discussed, the Equal Protection Clause of the 14th Amendment prevents a state, “without sufficient justification, from ‘separating its citizens into different voting districts on the basis of race”. This does not mean all forms of racial gerrymandering are illegal, but that racial gerrymandering practices are unconstitutional when:

(1)race was the predominant factor motivating the legislature’s decision to place a significant number of voters within or without a particular district,” and

(2) the district’s design cannot withstand strict scrutiny.

Essentially, if the evidence suggests that race was the main motivator when redrawing district maps, state legislators must prove that its race-based redistricting scheme is “narrowly tailored” to meet a “compelling interest.” This means that they must comply with the Voting Rights Act of 1965 which prohibits redistricting on the bases of race without “good reason”. Any form of race-based redistricting must not be racially discriminatory and must be put in place in order to counteract minority voter dilution. In order to prove the validity of a voter dilution claim, Thornburg v. Gingles, identified three conditions:

(1) a “minority group” must be “sufficiently large and geographically compact to constitute a majority” in a legislative district that is designed sensibly;

(2) that minority group must be “politically cohesive”;

(3) the district’s white majority must “vote sufficiently as a bloc” such that it typically “defeats the minority’s preferred candidate.”

In other words, the minority group must be large enough to have political impact in fairly drawn districts, the group must have similar political ideals and inclinations and the white voters in the district should vote for a candidate different from the minority group. These parameters attempt to make it harder for state legislators to claim voter dilution in order to further their political agendas, but they can sometimes make it hard to prove otherwise evident cases of racial gerrymandering.

Although racial gerrymandering is restricted by the courts, partisan gerrymandering is not. Because of this, many racial gerrymandering cases focus on making a distinction between partisan and racial gerrymandering, as if they were two inherently different practices. However, we must consider: what happens when the correlation between race and party is so high it becomes impossible to separate the two? As we have come to learn during past years, Americans rely on racial categorization and identification when identifying themselves with a political party. A study by the Pew Research Center found the following trends in the party affiliations of white, black and hispanic voters:

These statistics highlight the connection between racial identity and party affiliation. As we can see, racial polarization in the United States has gotten to the point where a majority of white voters vote Republican, and minorities vote Democrat. These trends were reflected in the 2016 election results, in which “black and Latino voters preferred the Democratic presidential candidate by eighty and thirty-six points respectively, while white voters preferred the Republican presidential candidate by twenty-one points.” The recent predominance of identity politics is due to white people’s belief that they are under attack and at risk of losing their superior status in society. There is a shared feeling among white Americans that minorities are “cutting in line” with Democrat sponsored programs like Affirmative Action that aim to level the playing field between whites and racial minorities. In the South, where most white voters tend to vote Republican, state legislators benefit from drawing maps where the Democratic voters, most of the time black and hispanic voters, are either “packed” into a single district so they only get a few seats, or “cracked” across districts so their general power is diluted depending on the voting patterns in each state. In cases like this, it becomes virtually impossible to distinguish between party and racial motivators because they are two sides of the same coin. Any sort of attempt at partisan gerrymandering will undoubtedly have racial consequences, and vice-versa. Despite this, proving racial gerrymandering over partisan gerrymandering can be quite tricky, especially when they are one and the same.

A recent redistricting case in North Carolina had the Supreme Court struggling to define the line between party and race, ultimately ruling in favor of the racial gerrymandering claims. Cooper v. Harris, allows us to see the different restrictions on racial gerrymandering and the Gingles conditions in practice. It also greatly touches on the subject of distinguishing between partisan and racial gerrymandering. After the 2010 census, the Republican-controlled legislature of North Carolina designed a new map that again redrew Districts #1 and #12 as majority-black districts and thus prompted the present lawsuit. The plaintiffs of the case were black residents who alleged that the state had packed black voters into these two districts, diminishing their potential influence in other districts. Here is a map showcasing the black population distribution in North Carolina:

Now, let us take a look at Districts #1 & #12:

As you can see, it is clear that both districts fall over areas with some of the highest concentrations of black populations in the state. For District #1, because of irrefutable evidence of race as a predominant factor in the redrawing of the district, the Court went on to determine whether the racial gerrymander withstood strict scrutiny. State legislators admitted to racial gerrymandering, claiming that otherwise they would be liable for minority voter dilution under the Voting Rights Act. Nevertheless, because District 1 consistently elected the black candidate of choice, even with a minority BVAP, the state failed to meet the third Gingles condition, and the court concluded that the racial gerrymandering was not necessary.

It was considerably more difficult to reach a decision in District #12, since it required the Court take on the complicated task of differentiating between race and party. The ruling rested on whether it was race or politics that predominated the legislature’s decision to sort voters into the district. State legislators claimed that it was party, not race that prompted their redistricting plans. As evidence, the plaintiffs presented public statements by legislators, the mapmaker’s confirmation of racial intent, the state’s pre-clearance submission to the U.S. Department of Justice, live testimony by Congressman Mel Watt, and expert reports. Such evidence included emails between the Republican paid map maker and a Republican redistricting expert where they explicitly discuss packing minority voters into the district. Here’s one of the emails below:

In the end, the court determined that District #12 was, in fact, racially gerrymandered. Despite the case’s seemingly positive outcome, during the time it took for the courts to reach a decision, “the legislature under the disputed map passed laws that substantially affected African Americans. Lawmakers imposed stricter rules for voter ID and eliminated the state’s earned income tax credit, a provision that lowers the taxes paid by the poorest residents.” State legislatures are very much aware that it could take years before their redistricting plans are overturned, so they purposefully use special tactics to delay this happening and ensure elections take place under the most favorable circumstances for their party. This negative consequence of the redrawn maps highlights the real-life implications of racial gerrymandering on minority rights.

Notwithstanding their decision in Cooper v. Harris, the Supreme Court recognized that distinguishing between race and party is not as easy as it seems. Justice Kagan noted that “political and racial reasons are capable of yielding similar oddities in a district’s boundaries” because of the high correlation between racial identification and party affiliation. Justice Alito remarked on the same in his dissent: race and voting approaches perfect correlation in District 12, meaning there is “almost complete overlap” between black and Democratic voters. If the evidence had been examined under different lenses, the outcome could have been very different. It is this lack of clear distinction between racial and partisan gerrymandering that makes the practice so dangerous and difficult to regulate. In order to effectively tackle racial gerrymandering once and for all, the Supreme Court must stop asking themselves: “Was this redistricting plan motivated by race or party?” and start to consider a different approach to the question: “Will this redistricting plan ensure racial minorities are fairly represented, considering their backgrounds, needs and interest?” Focusing less on the intent of the gerrymander and more on its effect will help courts address the real life implications of racial gerrymandering. The negative effects of racial gerrymandering on minorities highlight the continuing blatant disregard for the rights of people of color in the United States. Racial gerrymandering is merely the most recent form of racial marginalization in America’s long history of minority voter disenfranchisement.

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