In a decision that liberal-leaning justice Elena Kagan called “tragically wrong,” the Supreme Court ruled Thursday (June 27) that federal courts could not hear cases of partisan gerrymandering. Now when a political party draws district lines to give itself an advantage—no matter how geographically specious they are—courts at the federal level can no longer strike them down. In an opinion decided 5-4 by a conservative majority, Chief Justice Roberts held that gerrymandering issues are “political” questions that should be left entirely to states. In essence, the Supreme Court didn’t just shut the door on hearing future partisan gerrymandering claims, but they “bolted it shut and walked away,” says Michael Li, senior counsel at the Brennan Center for Justice Democracy Program.
Despite the decision’s far-reaching outcomes at the federal judicial level, there are multiple state avenues to fight back. But to chart a path forward, it’s critical to understand the entrenched political machinery undermining select voters in the last decade that have led to this point.
Until the Voting Rights Acts of 1965, most post-Civil War election policy was expressly designed to prevent formerly enslaved people of African descent from voting. From state-sponsored suppression through poll taxes, grandfather clauses and literacy tests, to White vigilante violence, Black voting has been a long, hard, life-threatening fight.
Of course that doesn’t mean that other people of color have not been targeted. In the 21st Century struggle for voting rights, particularly since the 2008 election of President Barack Obama and the 2010 midterms, Republicans have launched a massive effort to keep suppression alive. For example, Hispanic* people, who have replaced Black people as the largest racial minority in the country, have been adversely affected by new ID restrictions. Tactics such as automatic voter purges, polling place closures, voting machine irregularities, limits on get-out-the-vote programs and restrictions on early voting have adversely affected people of color overall, along with people for whom English is a second language, disabled people, senior citizens and college students.
In 2013, the Supreme Court’s ruling in Shelby v. Holder further enhanced voter suppression by curtailing the federal government’s right to “pre-clear” questionable election rules drawn up by jurisdictions with a history of racist voting laws.
Few states have been as central in these current attempts as North Carolina. The state, whose redistricting plan was one of the two at issue in the latest Supreme Court decision under Rucho v. Common Cause, was a focus of the conservative billionaire industrialist Koch brothers. After the 2010 elections, according to The Nation, half of North Carolina’s Black population, over 1 million people “who vote overwhelmingly for Democrats,” were cobbled into a fifth of all legislative and Congressional districts. This made Black voters twice as likely as White voters to see their communities divided.
Consequently, districts that would reflect the political will of most Black voters would be diluted and tilt to a Republican candidate. In 2012, throughout the country, Republicans retained the U.S. House despite earning 1.4 million fewer votes than Democratic congressional candidates, according to Salon, because of their unprecedented gerrymandering efforts.
How did this happen?
Like with many political phenomena, follow the money. In building the modern Republican party, conservatives launched a fundraising arms race aimed at Democratic, often Black, districts. Among the organizations they created were Americans for Prosperity (AFP), the political advocacy group of the Koch brothers. Also formed was REDMAP, the Redistricting Majority Project, a Republican State Leadership Committee initiative backed by Karl Rove. The 2010 Citizens United Supreme Court decision supercharged their work by allowing unlimited campaign funds from corporations. According to the Daily Beast, AFP became the GOP’s “outside hub for everything from data analytics to candidate recruitment to get out-the-vote drives. Essentially everything the party once did is now privatized through AFP.”
As per a study by the Bridge Project, between 2010 and 2016 the Kochs spent a half a million dollars in North Carolina’s state senate and house races. The object was to protect Koch Industries’ special interests and corporate facilities, of which there are several dozen.
In targeted campaigns, REDMAP developed an arsenal to fund communications and media operations to finance non-stop attacks against Democrats, including outright lies against candidates. The strategy worked. From 2009 to 2016, the GOP more than doubled the number of state legislatures within their control. This also means control over the state redistricting process to maintain their power for years to come.
Although the Supreme Court rejected North Carolina’s 2011 gerrymandering for violating the 14th Amendment along racial lines, state Republicans re-calibrated and created a redistricting plan based on partisan gerrymandering. It functioned in the same way—to disenfranchise Democratic voters who were disproportionately Black. Despite this clear motive, the Supreme Court decided Thursday that resolving gerrymandering would be left up to the same legislatures that created it, a victory for Republicans in the multiple congressional districts throughout the country whose rise to power came squarely at the expense of a dismantled democracy.
Escaping these layers of voter suppression seems like a knotty task. Still, some voting rights experts are hopeful.
Wendy Weiser, vice president for the Democracy program at the Brennan Center, tells Colorlines that in addition to Congressional action, state constitutional amendments, ballot initiatives and courts can step into address gerrymandering. And advocates are using these tools.
“There’s actually been a huge amount of positive momentum over the last couple of years,” says Weiser. “In the 2018 midterms, voters in five states passed ballot initiatives that would reign in gerrymandering in meaningful ways. And the United States House of Representatives passed a bill that was a comprehensive democracy reform bill that would end partisan gerrymandering.”
The Brennan Center’s Li also stresses that while a SCOTUS decision that maintained federal court jurisdiction in gerrymandering cases was something advocates were hoping for, they’re “not in a worse place,” since the Court had never taken up partisan gerrymandering claims.
Li points to Arkansas, California and Michigan using ballot initiatives to prohibit gerrymandering. He also recommends supporting gubernatorial candidates where, in many cases, a governor may veto egregiously gerrymandered redistricting maps.
On top of that, Li says, everyday people can more easily follow and participate in the redistricting process in 2021 when the maps are next redrawn. “There will be more public mapping tools that are available for people to draw their own maps or to evaluate the maps.”
“A lot more people are watching,” Li continues. “Before, these shenanigans occurred in the dark because people didn’t care to look. But now people have moved the flower pot and are looking underneath to see what’s there.”
In a week when former Georgia gubernatorial candidate and voting rights activist Stacey Abrams testified before Congress about rampant voter suppression, the Supreme Court cowered from strengthening Constitutional protections, where avoidance is inherently political. But even without the Supreme Court, Li says, “people have been figuring out how to do this on their own. It can be really hard. But it is possible.”
*This is a Census Bureau categorization, not ours.
Malaika Jabali is a public policy attorney, writer and activist. Her writing on politics, culture and race have appeared in Essence, The Intercept, The Guardian, Very Smart Brothas and elsewhere.