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LDF's Leah Aden in ProPublica: Gill v. Whitford SCOTUS Outcome Could Offer Tool for Fighting Racial Discrimination

Monday, October 9, 2017

The Wisconsin voting rights case before the Supreme Court has been cast as the definitive test of whether partisan gerrymandering is permitted by the Constitution. But a closer look at the case and others like it shows that race remains an integral element of redistricting disputes, even when the intent of those involved was to give one party an advantage.

Consider Gill v. Whitford, the Wisconsin case that was argued last week before the nation’s highest court.

During its journey through the legal system, the case has turned on whether Republicans secured an impermissible advantage over Democrats in the way Wisconsin’s Republican-controlled legislature redrew district lines after the 2010 census.

But because of the deep racial divides that pervade American politics, the story is not that simple.

Wisconsin’s Democratic Party includes a substantial number of African-American and Latino voters, particularly in cities like Milwaukee. When you look more closely at redistricting plans drawn in Wisconsin and elsewhere, you see that both parties have improved their statewide prospects by diminishing the political power of minority voters.

As they fight in court over lines drawn after the 2010 census, Democrats and Republicans alike are anxiously waiting to see what the decision in the Wisconsin case will let them do after the 2020 census.

Michael Li, senior counsel at the Democracy Program at New York’s Brennan Center, said the ruling carries extra weight because we can expect the most sophisticated chicanery yet.

“I’m worried about a record level of gamesmanship in 2021,” said Li. “There could be an unprecedented redistricting war, and both sides are going into it fully armed.”

Paul Smith, the attorney presenting oral arguments on behalf of the voters challenging the Wisconsin map, echoed this sentiment.

“What the court needs to know is it’s — this is a cusp of a really serious, more serious problem,” Smith told the justices. As computing power and data for redistricting continue to improve, he said, “you’re going to have a festival of copycat gerrymandering the likes of which this country has never seen.”

While many voters would be affected by such a festival, not all voters would be affected equally.

The record shows that the reliably Democratic voters in communities of color are crucial chess pieces in the partisan game that is redistricting. Republicans often benefit from packing such voters into districts, making other districts safer for Republican candidates. Conversely, a state’s Democratic Party can benefit if it divides communities of color among many districts, giving each a reliable majority of voters who will support the party’s candidates. This technique, known as “cracking” in map drawers’ argot, often harms minorities, voters who might have greater clout if they were kept in a single district. In some cases it has proved politically expedient for the party drawing the lines to both crack and pack minority voters.

The Supreme Court’s 2013 decision in Shelby County v. Holder largely ended prior review of district lines by the Justice Department. That, along with rapidly improving technology that makes it ever easier to hide manipulation of communities of color for partisan gain, and the influx of massive amounts of dark money into redistricting, have put some of the voting power of minorities in jeopardy.

If the Supreme Court upholds the lower court decision in Gill, it will allow judges to evaluate, and possibly reject, redistricting maps based on a mathematical formula intended to identify partisan gerrymandering. It could offer those suing on behalf of minority voters a tool for fighting racial discrimination that wouldn’t require the high standard of proof and commitment of resources a typical Voting Rights Act case would, said Leah Aden, senior counsel at the NAACP Legal Defense Fund.

Upholding the lower court ruling in Gill would also reduce the incentive for political parties to use perverse (some would say cynical) interpretations of the Voting Rights Act and Constitution as a way to defend or attack partisan maps, Aden said. In Wisconsin, and also in Texas and North Carolina, gerrymandered maps have been defended by parties with an argument Aden called “The VRA Made Me Do It.”

Gill v. Whitford features a novel variation of this tactic. A brief filed by the Republican Party contends that using the suggested mathematical formula to flag districts drawn for partisan reasons would violate the Voting Rights Act because districts with a majority of minority voters — Democratic districts — could get flagged as unfairly drawn.

Read the full piece here