By Sam Ozer-Staton

On Monday, the Department of Justice sued Texas, alleging that its updated congressional and state House maps violate the Voting Rights Act. 

In a press conference announcing the lawsuit, Associate Attorney General Vanita Gupta said that Texas’s redistricted map “denies Black and Latino voters the equal opportunity to participate in the voting process,” and also that several districts were drawn “with discriminatory intent.” 

The lawsuit comes as states scramble to finalize their legislative maps as part of the once-a-decade redistricting process. As of Thursday, 18 states have completed their maps, and two of the largest, California and Florida, have released first drafts.

Monday’s lawsuit marked the first major legal action on redistricting by the Biden administration, whose ability to challenge legislative maps has been significantly hampered by a series of closely-decided Supreme Court decisions, including Shelby County v. Holder (2013), Rucho v. Common Cause (2019), and Brnovich v. DNC (2021). 

In Rucho, the Supreme Court held that claims of partisan gerrymandering presented “political questions” beyond the reach of federal courts. In other words, federal courts may not resolve lawsuits alleging that a state’s lines have been drawn to benefit one party over another. However, the Court has continued to permit federal lawsuits challenging racial gerrymandering — meaning that lines were drawn to discriminate against a particular racial group.

“We’ve seen Republicans frame their racial gerrymanders, which are explicit, as partisan gerrymanders, in order to escape their maps being invalidated,” said Ryan Quinn, the Campaigns Director at Swing Left, a national progressive political organization. Even if DOJ’s lawsuit is successful, Quinn said, it is unclear whether it will be resolved in time to change Texas’s maps this election cycle.

The Court’s recent hostility towards the Voting Rights Act — beyond its implications for civil rights — has had the practical effect of solidifying Republicans’ structural edge in drawing districts. That’s because of where Democrats and Republicans tend to live, said Alex Theodoridis, a professor of Political Science at the University of Massachusetts at Amherst. 

“We have a situation now where Republicans are overrepresented. A lot of that is just about the urban-rural divide, in that Democrats tend to live in very densely populated areas versus very sparsely populated areas. So it’s easier to bunch Democratic voters into districts,” Theodoridis said. 

While redistricting tends to benefit Republicans on the whole, not every state approaches the process the same way. In 33 states, state legislatures play the dominant role. In eight states, commissions draw the lines. Other states have hybrid systems, and others are so small that they comprise a single congressional district. 

According to Quinn of Swing Left, even the states that use commissions — which are ostensibly designed to avoid the partisan scrum — can have radically different approaches.

“It really depends on the criteria of each individual state,” Quinn said. “If you look at a state like California, the independent commission historically has had competitiveness factored into the criteria they use to draw the district. If you look at a state like New Jersey, on the other hand, it has a nominal bipartisan commission, but one of the things they’ve favored in the past is actually incumbent protection, or a deal to be made between the two parties. That can be the difference between an independent commission and a bipartisan commission.” 

What does all of this mean for the future of the House, where the Democrats currently hold a slim eight-seat majority?

Of the maps that have been released, the House landscape doesn’t look dramatically different. That’s good for Republicans, who overwhelmingly benefited from the maps drawn during the 2010 redistricting cycle. According to a prediction by Nate Silver’s FiveThirtyEight, Republicans have already picked up two to three seats through redistricting alone. 

But the primary victim of redistricting, according to Quinn, will be competition. “It is our analysis that Democrats will not be specifically drawn out of the majority,” he said. “However, because Republicans have used their control over redistricting to protect vulnerable incumbents, the overall number of competitive seats in 2022 will shrink, and will require Democrats to win a large majority of those new competitive seats.”

Theodoridis, the political scientist, cautioned that more independent commissions may simply amount to unilateral disarmament for Democrats. “If you’re not controlling a legislature, if you’re not controlling the mechanisms by which redistricting happens, there’s only so much you can do,” he said. “If there’s a general push among Democrats for non-partisan redistricting, and that leads to Democratic states taking on non-partisan redistricting but Republicans continuing to do [partisan redistricting], that certainly wouldn’t be a trend that would favor Democrats.” 

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