Your weekly source for analysis and insight from experts at the Brennan Center for Justice
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This week, I’ve turned The Briefing over to our redistricting expert, Michael Li, to explain how an under-the-radar Supreme Court ruling is making it easier for Republicans to defend racially discriminatory maps. And next week, The Briefing will be off for Thanksgiving.
—Michael Waldman
The once-a-decade redrawing of legislative and congressional maps is still in its early phases, but a concerted Republican tactic for defending racially discriminatory maps is already clear. And thanks to a 2019 Supreme Court decision greenlighting partisan gerrymandering, they may just get away with it.
Racial discrimination is illegal. Partisan gerrymandering, the Supreme Court has said, is just the American way. You can guess what happened: Republicans are defending their racial gerrymanders by essentially saying, “Hey, it’s just party business.”
A decade ago, Republican map drawers aggressively redrew district boundaries to pack Black and other nonwhite voters into heavily minority districts, asserting that the Voting Rights Act made them do so. But that tactic backfired when courts struck down the wildly reconfigured districts as unconstitutional racial gerrymanders.
This time, Republicans are trying something different, claiming they are drawing maps on a “race blind” basis and leaning in hard on the argument that partisan politics motivated this decade’s maps, not race. How could our maps be racially discriminatory, they argue, if we had the race filters turned off in map-drawing software? The maps may badly dilute the power of communities of color, the argument goes, but that’s simply the by-product of our targeting of Democrats. As bluntly explained by one leading Georgia Republican defending this week’s dismantling of the seat of the only Asian-American woman in the state senate, “Yes, there was a political aspect, and that’s okay because that’s part of the process.”
Cue the eyerolls. Even without fancy mapping software, smart politicians know the demographics of their home regions like the backs of their hands. And in states with high rates of racially polarized voting like Texas and North Carolina, they know that Democrats are overwhelmingly people of color and that discriminating against Democrats is invariably racially discriminatory.
Consider this decade’s “race-blind” maps. In Texas, people of color were 95 percent of the state’s population growth last decade, but Republicans created no new electoral opportunities for communities of color and in many places went backwards. And in North Carolina, the state’s new maps could eliminate one of two Black members of Congress from the state as well as a third of Black state senators and a fifth of Black state house members.
Unfortunately, Republicans may get away with their ruse because of the Supreme Court’s opinion in Rucho v. Common Cause, which said that federal courts can’t hear partisan gerrymandering challenges brought under the U.S. Constitution. That decision creates a ready escape valve for map drawers in race discrimination cases by forcing courts to try to disentangle race and politics in maps, something that courts have long found hard to do. (Democrats also are guilty of using racial minorities for partisan advantage — in Illinois, a new lawsuit contends that maps passed this year by Democrats divide Black communities to strategically shore up vulnerable white Democratic incumbents.)
But the end of the story hasn’t been written yet. The Freedom to Vote Act, currently pending in Congress, could upset Republicans’ too-clever-by-half calculus by banning partisan gerrymandering in congressional redistricting and providing a strong judicial remedy for voters. By curtailing the ability of states to defend racially discriminatory maps on the basis of politics, Congress could strike a swift body blow both against partisan gerrymandering and efforts to subordinate the electoral voice of the country’s growing communities of color.
But time is running perilously short. Redistricting will be done in most of the country shortly after the first of the year. If Congress doesn’t pass the Freedom to Vote Act, this cycle of redistricting could be one of the worst in history for communities of color. Members will need to decide if they can live with that.
Democracy
Sounding the Alarm on Election Subversion
At all levels of government, Republicans are running for key state election positions in bids propelled by the Big Lie and promoted by former President Trump. Experts fear this may lead to future efforts to overrule the results of presidential elections that are far more sophisticated than the attempt on January 6. “The leadership of the federal government doesn’t appear to be treating this as the emergency it is. This is one of the great clashes in American political history,” Michael Waldman said. GUARDIAN
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Stopping Political Interference in Science
Responding to reports that the Trump administration pressured Centers for Disease Control officials to alter guidance and other public information on Covid-19, Martha Kinsella outlines the importance of preventing political interference in public health and medical advice. There are clear steps that lawmakers can take to ensure future crisis response is guided by accurate and ethical scientific research, not political pressure. “Objective government science is essential for a healthy society: It informs policies that can help save lives. Congress must act to protect science from politicization,” she writes. TWITTER
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Constitution
A Test on Taiwan
As tensions increase between Taiwan and the People’s Republic of China, familiar questions are arising as to whether congressional approval will be required for the president to take military action to defend Taiwan. Katherine Ebright takes stock of the history around unilateral uses of military force by American presidents and existing legislation on U.S.-Taiwan relations, finding a clear answer. “Any use of force to protect Taiwan must be expressly authorized by Congress, and only after both political branches of this country have reckoned with the costs and implications of launching into hostilities with a global power,” she writes. JUST SECURITY
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Justice
Alternatives to Punitive Excess
While there are no simple solutions to the systemic problems of our criminal legal system, numerous jurisdictions have pioneered new methods for accountability, public safety, and community empowerment. In the latest installment of the Brennan Center’s Punitive Excess series
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, Alia Nahra and Hernandez Stroud explore some of the many successful alternatives to incarceration and over-policing. “It is qualitatively clear that restorative justice transforms relationships and communities by offering a different approach to redress than the often traumatizing and ineffective criminal legal system,” they write. Read more
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Coming Up
VIRTUAL EVENT: Justice on the Brink: 12 Months that Transformed the Supreme Court
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Wednesday, December 1, 6–7 p.m. ET
The death of Justice Ruth Bader Ginsburg was a seismic shift in the history of the Supreme Court, cementing a conservative majority on the bench as the country experienced a pandemic, a divisive presidential election, and the Capitol insurrection. In her new book, Linda Greenhouse provides a behind-the-scenes look at the 12 months that reshaped the Supreme Court and the years of conservative activism behind the rise of Justice Amy Coney Barrett. RSVP today
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Produced in partnership with NYU’s John Brademas Center
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News
Lawrence Norden on the importance of neutral election officials // ABC News
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Michael Li on this year’s gerrymandering surge // ASSOCIATED PRESS
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Yurij Rudensky on the courts’ role in redistricting // Crosscut
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