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Every ten years, following the collection of census data, states redraw district boundaries. The purpose of this redistricting process is for states to create new legislative units that reflect a more equal distribution of seats as population size changes. Historically, many states opted to keep their district boundaries the same despite changing populations. This trend ultimately led to the Supreme Court ruling on the case Baker v. Carr, 1962, in which the court held that federal courts could consider challenges to state redistricting plans since this issue related to the Equal Protection Clause. Baker v. Carr and other cases decided under the Warren Court formed the principle of “one person, one vote” that exists to this day. Thus, the redistricting process became a significant legal issue since controversies surrounding gerrymandering, which is defined as manipulating the boundaries of electoral constituencies in order to favor a certain group or party, could be resolved through the court system.
Since the decision on Baker v. Carr, the Supreme Court has also ruled on issues related to racial and partisan gerrymandering. Notably, Shaw v. Reno, 1993, ruled that a proposed North Carolina Congressional district was shaped strangely enough to imply that there was a conscious effort to divide voters by race, which was unconstitutional. As a result, redistricting proposals that raised questions of racial gerrymandering could be challenged in court. More recently, Rucho v. Common Cause, 2019, dealt with the issue of the constitutionality of partisan gerrymandering. According to the majority opinion of this case, the question of excessive partisanship in creating legislative districts is a political question that is not up to federal courts to mediate and that the issue can and must be resolved by national and state legislatures. This represents a turning point in Supreme Court decisions in recent history, as it limits its jurisdiction powers. Critics of this decision, such as Justices Elena Kagan and Ruth Bader Ginsburg, have argued that this could allow gerrymandering to spiral out of control, which would “irreparably damage our system of government”.
States across the country are now in the process of redistricting. While most state legislatures remain in control of redistricting, voting on proposed maps as though they are bills, other states have introduced various commissions to assist with or formally carry out the redistricting effort. As states propose and pass their new maps, politicians and citizens alike can begin to predict the outcomes of future legislative elections, especially the 2022 midterm elections.
For example, in October 2021, the Republican-held Texas legislature passed its new U.S. House maps which favor incumbents and limit political representation for minority communities. This action was immediately met with backlash from Democrats in Texas and lawsuits from civil rights groups. Although many would consider this an issue of concern, the Texas state legislature has faced legal challenges to its redistricting plans ever since the Voting Rights Act was passed in 1965, so this is not unfamiliar. However, it will be more difficult to legally challenge the new maps on the grounds of discrimination in the aftermath of Shelby County v Holder, 2013. In this case, the Court effectively ended the process of preclearance by ruling that the formula used to determine which jurisdictions are subject to it was outdated and unconstitutional. Consequently, a multitude of state and local governments no longer needed to seek approval for changes to voting laws, which includes redistricting, prior to enacting them. While this ruling did allude to the possibility of creating a new formula to determine which jurisdictions are subject to preclearance, Congress has yet to pass a bill that would do so.
Because many Democrat-controlled states like California have turned to other means, such as independent redistricting commissions, to redraw state maps, state legislatures controlled by Democrats have also engaged in gerrymandering in an attempt to keep the U.S. House under Democratic control. In other words, the Democratic party is using its state legislatures to attempt to gain enough seats to cover potential losses in other states. In Illinois, for instance, new district maps were approved by the state legislature at the end of October after initial plans were rejected by a federal panel. Under these new maps, Illinois Democrats are likely to hold 14 of 17 Congressional seats following the 2022 elections, meaning that the party could gain a seat while Republicans could lose up to two.
In the face of extreme gerrymandering, states such as Arizona, Colorado, and Michigan have implemented independent redistricting commissions in an attempt to prevent partisan motives from dominating the redistricting process. First introduced in the 2000s, the Supreme Court eventually made a decision on this issue with the case Arizona State Legislature v. Arizona Independent Redistricting Commission, 2015, which approved the constitutionality of independent commissions created by ballot initiatives. As a result, many movements have arisen in states as people have organized to promote this method of redistricting within their own states. While these movements have had some success in Democratic states, Republican legislatures have held onto the redistricting powers. This trend has led to the Republican party having an advantage during this redistricting cycle, which could play an important role in the outcome of the 2022 elections. If these efforts were to succeed, the federal government would be divided, which would inevitably slow the legislative process overall.
It is undeniable that gerrymandering, especially partisan gerrymandering, has contributed to polarization in the United States. In the short term, redistricting and the gerrymandering associated with it will surely influence the upcoming Congressional and state elections. Although the Supreme Court has historically ruled in favor of progress, allowing citizens to challenge abuses of redistricting powers, recent decisions have limited this power. Now, it is possible for states to pass redrawn maps without facing the preclearance process, which has opened the door for discriminatory practices. That said, movements towards independent redistricting have signaled the possibility of a future that gives voters more power and is less determined by gerrymandering. Time will tell whether this prospect becomes a reality.