This year’s midterms were surprisingly close, with a handful of states providing big wins for each party. On the one hand, Democrats in Michigan won key U.S. House races and flipped both houses of the state legislature for the first time since the early 1980s. But in Florida, Republicans locked in control at the state level and won 20 of the 28 seats available in the House.
There’s a lot to be said about the candidates on the ballot, the on-the-ground organizing and the policies at the forefront of voters’ minds in each state. But a major factor that can be easy to overlook is the electoral maps determining, sometimes on a block-by-block basis, which candidates are on which ballots. States are tasked with redrawing these districts every 10 years based on the census; the 2020 count began late due to the pandemic. And without a single federal law governing things, you have a massive gulf in the way states like Michigan and Florida make their decisions.
A major factor that can be easy to overlook is the electoral maps determining, sometimes on a block-by-block basis, which candidates are on which ballots.
In the interest of parsing out how much the successes and failures of each of the parties this year came down to gerrymandering, and how much of a problem these maps will be over the next decade, I reached out to Michael Li, an expert on redistricting and voting with the Brennan Center for Justice.
Our conversation, edited for length and clarity, follows.
Hayes Brown: Which would you say is the bigger threat to democracy right now: gerrymanders at the state level, or at the federal level?
Michael Li: Oh, that’s an interesting question. Let’s put it this way: Gerrymandering is bad, no matter what level of government occurs, whether it’s the city council, or whether it’s for the U.S. House. But the impacts are slightly different in different places. When you’re talking about Congress, it’s a little bit of a state-by-state slog in terms of trying to get to a fair result. At the national level, you could have unfair maps in Texas, but fair maps elsewhere, which still give Democrats or Republicans a fair shot at winning the House overall.
Whereas at the state level, one party can be totally shut out of power. And you see that in states like Wisconsin and elsewhere around the country. But what I’d say is that it’s a little easier to offset gerrymandering at the federal level. Both parties can gerrymander, because Democrats control some states, Republicans control some states, and their gerrymanders can offset each other.
Let’s stick with the state level for a second. And I’m glad you brought up Wisconsin. What’s the solution in these states where these gerrymanders are so baked in?
Li: Wisconsin is a prime example of the pernicious effect of gerrymandering. Democrats do very well at the statewide level, both in federal races and state races — but they’re close. And yet Democrats may have only 30% of the seats, or thereabouts, in the legislature, and that is just so wildly skewed. But fixing that can be a challenge, because in Wisconsin, unlike in neighboring Michigan, you can’t do a citizen ballot initiative and put something on the ballot to reform political processes. If you’re going to have reforms, you have to have the body that did the gerrymandering be willing to fix the problem. And I think everyone suspects that Republicans are unwilling to do that.
Likewise, there was an effort to try to get the federal courts to fix that, but the Supreme Court ended up totally withdrawing from the partisan gerrymandering field and saying that you can’t bring partisan gerrymandering claims in federal court anymore. The one place that remains is state courts, which right now are not very favorable.
But there is a chance to create a progressive majority on the Wisconsin Supreme Court with a judicial election, which will occur in April 2023. If a Democratic candidate wins that race, you could have a progressive majority, which could be willing to police gerrymandering abuses, and that would be big. Wisconsin is frustrating, but it’s also a reminder that the war against gerrymandering is a multifront war.
Meanwhile in Michigan, an independent commission redrew the lines and Democrats took the state legislature for the first time since the 1980s. Do you see that result making it harder to convince red states to shift to independent commissions to draw redistricting lines?
Li: I think it could be a hinderance in the short term. But the thing to remember about Michigan is that its maps are very responsive to electoral shifts, which is what you would expect in one of the quintessential swing states. This year, voters swung heavily toward Democrats in Michigan. If voters were to shift heavily toward Republicans in the future, then Republicans would do well. In other words, it’s a jump ball. That’s what you would expect, if the mood of the people shifts, so would control the legislature.
Republicans had a lock on power for 40 years. But now, both parties have a chance to win power by figuring out how to appeal to voters. And that’s good for democracy, right? Instead of catering to their base, they’re going to try to figure out, “OK, well, how do I get swing voters to choose me this time, when they didn’t choose me last time?” And Republicans are not shut out of power, they have a chance. It was hard this year, but there will be good years for Republicans in the future and these maps give Republicans the opportunity to do very well.
Switching over to the federal level, this was the first redistricting cycle since the Supreme Court really curtailed the Voting Rights Act in 2013. How has that played out in some of the states that were previously under pre-clearance from the Department of Justice?
Li: Well, I think there certainly are some places that you can point to where the loss of Section 5 [of the Voting Rights Act] was very impactful. The biggest one probably is Florida, where Republicans dismantled a district in northern Florida, between Jacksonville and Tallahassee, that had historically elected a Black member of Congress. They redrew the district to be a safe district that will be won by a white Republican. That is something that the DOJ would have taken a very close look at, had Section 5 been still in in place.
Elsewhere in the country, I think we’re still trying to figure out exactly what the loss was, because there was no wholesale dismantling of Section 5 districts. In most of the country, Republicans were content to leave them in place. In part because they concentrate Black and Latino voters in heavily Democratic districts which is good for you if you’re a Republican in a state like Georgia. You want voters to be in heavily Black districts, because it makes other districts white, that makes them better for Republicans.
I think some of the fears that people would just dismantle Black districts, it didn’t quite bear out. Because the last thing Republicans want to do is take a bunch of Black voters and stick them into white districts, that makes them more competitive.
Well, we have seen Republicans do that, in some cases. I think it was Nashville where they cracked open that district and split it up so that Black voters would no longer be able to make their choice and distributed them as a minority amongst more heavily white districts.
Li: That did happen. I’m not sure that that district would have been a Section 5 district. There were large scale attacks on the political power of Black, Latino, and Asian voters around the country. I think the question is to what extent that district would have been protected by the Voting Rights Act. Because it’s a very important law but has its limitations.
It was designed for a world of, like, 1965, and the country is more complicated than in 1965. It’s very hard to protect the diverse America that we have today, using laws that were designed then. They’re still really important laws that do a lot of work. But there are just places where they don’t necessarily have that much reach.
Right. Even with the updates that the VRA had over the years, those were sort of tweaks and not actually wholesale revisitation of the law.
Li: Yeah, like most people of color in the metro areas now live in the suburbs, not in the cities. And while there’s still segregation in the suburbs, people aren’t segregated into district-sized units. It’s not like there’s a Black side of town, in the suburbs, right? It tends to be more Swiss cheese. (There’s probably a better food metaphor.)
But people living in very suburban communities are very diverse, right? You have like pockets of Latinos living near pockets of Black people, living in near pockets of Asian people, living near pockets of white people, sometimes on the same street. The Voting Rights Act sort of assumes that you have a more segregated world than we have.
Nonetheless, there were big wholesale attacks, like in Georgia, where they dismantled [Democratic congresswoman] Lucy McBath’s district. And in the suburbs of Texas, they dismantled emerging multiracial coalition districts. They certainly drew pockets of Asians in Fort Bend County, near Houston, into a district in Houston and backfilled them with rural white voters.
I think people will litigate those claims under the Voting Rights Act. Republicans are defending this, saying like, “Oh, well, we’re just attacking Democrats and Democrats happened to be Black, Latino, Asian.” It’s created this artificial binary, where if it’s race, it’s off limits, but if it’s partisanship, it’s OK. And so, people have an incentive to try to create a narrative that they’re just being partisan when in reality, they’re diluting the power of the power of minority communities.
I know the Brennan Center was one of the loudest voices endorsing passage of the John R. Lewis: Freedom to Vote Act, which was filibustered in the Senate. If that had passed and been signed into law in January, would it have actually had an effect on the midterms? Or was it already too late by then?
Li: Well, Democrats frustratingly tiptoed up to the line of it being too late. But had the bill passed when Democrats tried to pass it, there still would have been an opportunity to at least tackle the most aggressive gerrymanders. The bill had a test and if a map fails that test, then there’s a rebuttable presumption that the map is a partisan gerrymander and would automatically be blocked from use.
All of this would have been challenged in the courts. Republicans would have created doctrines out of thin air to try to argue why Congress has no power to pass this. Assuming that the law could go into effect, there still was enough time to impact maps for this cycle. And if not, for this cycle then for 2024. Of course, it would have been better if Congress had passed this bill in 2020 rather than trying to pass it in 2022. But even latecomers to the party are welcome.
Going back to Florida, like you said it was blatantly gerrymandered with Gov. Ron DeSantis’ direct guidance. ProPublica has suggested that it was potentially illegal under the state’s Constitution. Is there any chance of those lines being redrawn before the 2024 election?
There is litigation in state court and in federal court over what happened in Florida. And we’ll see how that plays out. But both will be heard by court systems that are more conservative than they were last decade. Then, courts did strike down Florida’s congressional and state Senate maps, and they were redrawn to be very fair.
I think everyone is watching really closely to see how far you can get. It’s a very frustrating situation, because the maps, they’re so aggressive, they should easily be struck down for multiple reasons. But the courts may not be as favorable as they were in the past.
Speaking of the courts, New York was a rare instance of a pro-Democratic gerrymander getting tossed out by the state’s Supreme Court — and as you’ve noted the legislature didn’t decide to actually draw a new map. The court-created map wound up helping the GOP gain four seats it looks like. Is that an outcome that should be applauded?
Li: Well, I think that what happened in New York seems to be more a consequence of Democrats’ significant underperformance compared to elsewhere in the country than the maps. Because where Democrats lost in New York are in some cases districts that Joe Biden won by 10 points, or, in one case, even by 15 points. Democrats elsewhere in the country are winning districts that Joe Biden won by two points. Democrats in New York, I think, for whatever reason, really underperformed, especially in the districts that abut New York City.
And it’s not just New York — in the parts of New Jersey that are in the New York City media market, Democrats also underperformed. In other words, even if Democrats had gotten the maps that they wanted, it’s not clear that that would have saved them given the political headwinds.
It looks like the Supreme Court isn’t done gutting the VRA, with the Alabama redistricting case last month potentially further weakening Section 2 of the act, which blocks “voting practices or procedures that discriminate on the basis of race, color.” What’s the end goal here, you think? Is there a world where the VRA itself is somehow ruled completely unconstitutional?
Li: It is possible the Supreme Court could rule that Section 2 is unconstitutional. That did not seem like where the court was going in the oral argument. I don’t think that there are five votes for holding the VRA to be unconstitutional. There does seem to be some appetite for rewriting parts of the Section 2 test. And the only real question, I think, is, Will the changes be modest and things the voting rights community can live with? Or will it effectively make the VRA unusable? That’s the billion-dollar question.
Of course, it’s not only the VRA case that has people alarmed, but also the affirmative action cases [that target admission practices at Harvard University and the University of North Carolina]. It pushes a colorblind version of the Constitution, which could, if the court goes there, open the door to attacks on things like community interest requirements that right now allow you to keep like an ethnic community together. That might not be permissible under a colorblind Constitution.
And the independent state legislature theory case — Harper v. Moore — which the court will hear on Dec. 7, where the court could say that state courts have no role in enforcing redistricting standards, which would be nutty. It should be a decision that goes 9-0 against North Carolina Republicans, but we live in a world it almost certainly will get some votes. I think it’s a reminder perhaps, that federal courts may not be where we need to go to vindicate rights in the future.
Let’s try to wrap this up on a bit of a positive note: What is the brightest area in the redistricting fight that a lot of people haven’t clocked in on yet but you’re like, “OK, this actually has the chance to be something good?”
Li: It was mentioned to me that in Michigan, you had an independent commission that was created by a citizen ballot initiative, which almost nobody at the beginning thought had a chance to succeed. When I first started talking to people about reform in Michigan, lots of people tried to tell me ‘Michigan is where good ideas go to die, like, this will not happen.’
And yet this citizen grassroots effort with no money collected half a million signatures, and put an initiative on the ballot that was passed with more than 60% of the vote, carrying red counties and blue counties across Michigan. This independent commission drew maps that are among the fairest of the country that really sort of do give both Democrats and Republicans a fair shot at winning power. The energy of everyday citizens around this, I think, is really inspiring.