“A 21st Century Jim Crow Assault”

Every ten years, after the census, states redraw their statehouse and congressional districts. In thirty-seven states, elected officials are in charge of that process. Twenty of those thirty-seven legislatures are completely controlled by Republicans, while eight are controlled by Democrats.

In 2011, thanks to a dark money–funded GOP campaign to capture hundreds of legislative seats during the 2010 midterms, Republicans dominated the redistricting process, designing the maps for more than 200 of the 340 congressional districts that were redrawn by state legislatures.

The GOP-drawn district maps heavily favored Republicans majorities at the state level and in the House. A 2017 study from the Brennan Center for Justice found: “In the 26 states that account for 85 percent of congressional districts, Republicans derive a net benefit of at least 16-17 congressional seats in the current Congress from partisan bias.”

The GOP’s control of Congress kneecapped the Obama presidency and was only overcome by Democrats after courts struck down gerrymandered congressional maps in Pennsylvania and Virginia.

Last year, after scoring narrow majorities in both the House and Senate, Democrats at first appeared determined to prevent a repeat of the post-2010 debacle. On the campaign trail, President Joe Biden declared that “a first priority” would be electoral reforms like those in the For the People Act, also known as HR 1, a voting rights and election infrastructure bill that would ban partisan gerrymandering.

As president, Biden continued to rail against GOP voter suppression laws, calling them a “21st Century Jim Crow assault,” and declaring that the fight for voting rights is “the most significant test of our democracy since the Civil War.”

Efforts to protect voting rights have broad support. Last month, more than a hundred fifty civil rights groups urged the president to pass voting rights reform “by whatever means necessary.” Meanwhile, a poll released earlier this week from Data for Progress and the nonprofit Equal Citizens revealed that 60 percent of Americans support banning partisan gerrymandering and creating independent redistricting commissions, including 74 percent of Democrats, 53 percent of Independents, and even half of Republicans.

But a vote to debate the For the People Act failed in late June, thanks to unified Republican opposition and Democrats’ refusal to abolish the filibuster. And last month, White House officials appeared to signal they were giving up on the bill, reportedly suggesting in private calls with voting rights activists that it might be possible to “out-organize” voter suppression, rather than combat it through legislation.

Now that a senate vote on the act has failed a second time and the new census data has been released, experts say we will see the results of that Jim Crow assault in the 2021 redistricting process.

“A GOP Takeover That Could Last a Decade”

Since the last redistricting, the Supreme Court has cleared the path for even more extreme gerrymandering thanks to two rulings: one from 2013, which struck down the formula for requiring jurisdictions to seek federal preclearance under the Voting Rights Act for changes to their election laws; and the other from 2019, which held that partisan gerrymandering is a political issue left up to the legislature to resolve.

Republicans are already planning on pressing their advantage. Recently, Rep. Ronny Jackson, R-TX, told a conference of religious conservatives that redistricting “alone should get us the majority back” in the House.

It is a situation that Daley, author of several books on GOP gerrymandering, including Ratfucked: The True Story Behind the Secret Plan to Steal America’s Democracy, finds deeply concerning.

“The idea that Congress goes on recess and says we’ll deal with this in September is crazy-making,” Daley tells the Daily Poster. “There are states that could have maps enacted this fall, over the course of the next couple of months. This isn’t something that can be dealt with effectively after vacation. This is something that needed concerted effort and focus since day one.”

Daley predicts that Republicans will work to ensure a 2022 congressional majority by aggressive gerrymandering campaigns in key states like Texas, North Carolina, Florida, Georgia, Kansas, Tennessee, Missouri, and New Hampshire. He says that while Democrats can pick up seats in Illinois, Maryland, and maybe New York, it won’t be enough to prevent a GOP takeover that could last a decade.

Texas in particular will likely be heavily gerrymandered, Daley says. The state is gaining two congressional seats because of population growth recorded by the 2020 census, and he expects both to go red. He says overall, the state could yield a total of two or three additional seats for Republicans through gerrymandering.

North Carolina, which is likewise gaining a congressional seat following the 2020 census, is also likely to be subject to heavy gerrymandering, says Daley. The state’s congressional split is currently 8-to-5 in favor of Republicans, but Daley expects the map to change to 11-to-3 or 10-to-4, with a net GOP gain of two or three seats. The North Carolina GOP already tried to rig the state’s maps in the past, but the efforts were blocked by federal and state courts in 2018 and 2019.

Daley furthermore expects Republicans to pick up four seats between Georgia and Florida, especially since the latter is gaining a seat thanks to the census. In New Hampshire, meanwhile, Daley says Republicans have made it clear they intend to draw an additional seat for themselves.

The redistricting could end up costing several Democratic lawmakers their seats.

In Kansas, for example, Daley says he fully expects Sharice Davids, the first openly LGBT Native American woman elected to Congress, to be gerrymandered out of her elected position. Daley also says if he were Rep. John Yarmuth, D-KY, he would be “a little jittery,” because “you could pretty easily crack Louisville in half and create an all-Republican delegation there.”

Other states to watch for GOP gains, he says, are Tennessee and Missouri. Daley thinks it might be difficult for Missouri Republicans to split Kansas City because doing so might invite a racial gerrymandering lawsuit. Still, he says it is feasible for the state’s 6-2 map to become a 7-1 map.

On the other hand, Daley says Democrats could pick up one or two seats in Illinois and one in Maryland. He notes, however, that while Maryland currently has a 7-1 congressional map in favor of Democrats that could potentially become 8-0, Democratic Reps. John Sarbanes and Jamie Raskin are both vocal opponents of gerrymandering. Should the state Democrats pull the trigger, Daley says, it “could be awkward.”

Daley calls New York a “wild card” because the state, which is losing a seat, has had an independent commission in charge of redistricting since 2014. But he adds that the commission could be overridden by the state’s Democratic legislature for “maybe a couple” of seats.

Another state to watch, according to Daley, is Wisconsin, since it has a Democratic governor, Tony Evers, who could veto the most egregious maps put forward by the state’s GOP legislature.

All in all, concludes Daley, Republicans could be looking at a net gain of twelve-plus congressional seats, thanks to gerrymandering.

“You can look at the map and you can say here’s at least 12 to 15 seats Republicans can pick up, and you can look at the map and say it’s hard for Democrats to squeeze out 4 or 5,” he explains. “And that’s before you redraw Ohio and Pennsylvania. Do Democrats lose seats there as a result of those new maps?”

The end result, Daley fears, will be the effective end of majority rule in the United States at the state and federal level, and a total failure to address urgent problems like climate change.

“I don’t know how you get climate [legislation] past the filibuster let alone a gerrymandered House,” Daley says. “But in many ways, the stark danger is what could happen to state legislatures. If the gerrymandering of this last cycle are effective and enduring as the ones about to be drawn, that’s another decade gone.”

“The Window Is Still Open”

Michael Li, who serves as senior counsel for the Brennan Center’s Democracy Program, is concerned about Democrats missing this key deadline — but he says that hope is not entirely lost yet.

“The window [for reform] is still open, but the clock is ticking,” he says. “Things get more complicated the more time goes on.”

Li believes Congress could pass meaningful reforms after Labor Day, but once gerrymandered district maps are in place in the states, he explains, undoing them will require litigation and additional legislative maneuvers.

“That might require an additional legislative session to draw maps and it might mean having to move primaries or other election-related deadlines,” Li says. “[That] makes the process a lot messier than it would be if the rules were in place before maps are drawn.”

Reforms passed after the maps are drawn are also likely to be less robust than they otherwise could have been. Some of the redistricting provisions in the For the People Act cannot be made retroactive — like requirements that the map-drawing process be conducted transparently. Privileged communications cannot be made public after the fact, Li says.

Anti-gerrymandering provisions that are passed after maps are drawn could also be at a greater threat of successful court challenges.

Li says that, even though Democrats have already missed their key deadline, they should still do everything in their power to still pass redistricting reform.

“The reforms do get weaker the longer Congress takes to pass them, but the critical piece of the reform — which are new national rules including a ban on partisan gerrymandering — you could still impose even if maps have been passed,” Li says. “It just is a lot messier of a process then.”