The GOP Cheat Code to Winning Back the House

The stakes for Democrats’ election-reform plan couldn’t be higher.

Democrats face a daunting future of severe Republican gerrymandering that could flip control of the House in 2022 and suppress diverse younger generations’ political influence for years to come, according to a new study released today. Those findings underscore the stakes in Democrats’ efforts to pass national legislation combatting such electoral manipulation.

The four big states to watch are Texas, Florida, Georgia, and North Carolina, where the GOP enjoys complete control over the redistricting process, says Michael Li, a senior counsel at the Brennan Center for Justice and the author of the new report on how congressional redistricting could unfold following the 2020 census. “Those four states, which are seat-rich and where Republicans control the process, could decide who controls the next Congress,” he told me.

Over the longer term, Republican states could impose gerrymanders that prevent the nation’s growing nonwhite population from building political power commensurate with its numbers—even though voters of color accounted for about four in five newly eligible voters in the past decade, the study found.

The report, which was provided exclusively to The Atlantic, comes as Democrats prepare to advance two bills to guarantee voting rights and reshape the rules regarding federal elections: a new Voting Rights Act and the omnibus legislation called H.R. 1. Both bills, which the Democratic-controlled House approved in the previous session, are likely to pass the chamber again this year—with H.R. 1 potentially winning approval as soon as early next month, House aides say. But both are virtually certain to be blocked in the Senate by a Republican filibuster—unless Democrats change the upper chamber’s rules to allow them to pass with a simple-majority vote.

The gerrymandering report bookends other analyses, by the Brennan Center and others, documenting how state-level Republicans have introduced some 165 proposals in 33 states this year that would make voting more difficult. These include imposing new voter-identification laws, rolling back access to mail balloting and early-voting periods, and adding new hurdles to the voter-registration process. H.R. 1 and a new VRA, if they become law and survive legal challenges, would preempt almost all of those moves as well.

Given the likelihood that, absent federal intervention, red states will enact severe gerrymanders and new obstacles to voting, the decision about whether to end the Senate filibuster to pass these two bills could shape the future of American politics more than anything else Democrats do in the next two years. “If the filibuster remains in place, [H.R. 1] dies in the Senate,” Dan Pfeiffer, the former White House communications director for Barack Obama, wrote this week. If that happens, “the Republicans—who represent a shrinking minority of Americans—will likely return to power and control politics for the next decade or more.”

“When Senate Democrats like Joe Manchin, Kyrsten Sinema, and [Dianne] Feinstein oppose getting rid of the filibuster,” Pfeiffer added, “they are deciding to make it more likely that their time in the majority is ever so brief.”

Li told me that, in some respects, partisans may have less opportunity now for aggressive redistricting than they had after the 2010 census, though that may not be true in key states. States draw new lines for congressional districts after each decennial census, and that process is shaped by a complex convergence of legal and political factors.

Republicans’ leverage over the process seems slightly reduced since the 2010 redistricting. Parties have the greatest freedom to manipulate the lines in states where they control redistricting without input from the other side—almost always because they hold both chambers of the state legislature and the governorship. (Some states deny the governor any role.) After the 2010 census, Republicans enjoyed this level of control over the drawing of 213 congressional districts. They used their authority to impose extremely one-sided gerrymanders in states including Michigan, Wisconsin, Pennsylvania, North Carolina, Florida, Georgia, and Texas.

This time, Republicans hold complete control in states that will draw up to 188 districts. (Democrats, by contrast, completely control the maps in states with up to 74 seats.) The number of seats Republicans will oversee has diminished because they lost unified control of government in some states—including Wisconsin and Pennsylvania—and because Michigan transferred control of redistricting from the state legislature to an independent commission. Additionally, in GOP-controlled Ohio, voters approved an initiative that created redistricting standards that could impede, though not eliminate, gerrymandering.

Taken together, Li said, these shifts have produced “a tale of two countries.” While midwestern states seem more likely to avoid severe partisan gerrymanders, “the South is at high risk for worse outcomes than [it saw] last decade,” Li told me.

The reason is that Republicans in the South will face far fewer legal constraints than they did in the post-2010 redistricting. In the landmark Shelby County v. Holder decision in 2013, the Supreme Court’s conservative majority voted to invalidate the cornerstone provision of the original VRA: its requirement that states with a history of racial discrimination receive “preclearance” from the Justice Department for changes in their election laws, including their congressional and state legislative-district maps. Then, in the Rucho v. Common Cause decision in 2019, five Republican-appointed justices again outvoted the Democratic appointees to rule that federal courts could not overturn partisan gerrymanders.

The loss of the VRA’s preclearance provision—Section 5 of the law—is an especially profound change. After the 2010 redistricting, 16 states, mostly in the South, were required to submit their maps to the Obama administration’s Justice Department under the preclearance process, as Li notes in his report. Now this will mark the first time since the law’s passage in 1965 that “communities of color will … lack the protection of Section 5” during redistricting.

Even if the Justice Department did not reject a state’s map, the preclearance requirement at least somewhat constrained partisan excesses, “because everyone knew there was going to be a review,” says Justin Levitt, a law professor at Loyola Law School in Los Angeles who specializes in redistricting. He worries that the lawmakers’ incentives have now flipped: Since legislatures no longer need prior approval to proceed, they will feel emboldened to pursue aggressive racial and partisan gerrymanders because even a successful legal challenge against those maps could take years.

“There is very little incentive for a state legislature to refrain from discrimination at this point, because they are playing with house money, essentially,” he told me. “The taxpayers pick up the legal defense, that legal defense takes time and is burdensome, and all the while elections are happening” under the disputed maps.

To election reformers, one positive trend over the past decade was the willingness of some state courts to strike down severe partisan gerrymanders as a violation of state law. The 2019 Supreme Court ruling closing off federal judicial review of gerrymanders might encourage more state courts to intervene, Levitt believes. “Federal courts may be out of the picture but … now that it is abundantly clear that no superhero is arriving on the doorstep, state courts are starting to step in,” he said.

Still, in many of the Southern states where Republicans are likely to push for the most gratuitous lines—such as Texas, Georgia, and Florida—conservative-leaning state courts are unlikely to put up much resistance, most legal analysts I spoke with agree. That deference could have enormous racial, as well as partisan, consequences. Li notes in his report that voters of color accounted for fully 78 percent of the total increase in the nation’s eligible voting population since 2010. They also accounted for 70 to 80 percent of the total in almost all of the southern states at greatest risk for severe gerrymanders, including Florida, Georgia, Alabama, Louisiana, and Texas.

With the Shelby County decision eliminating preclearance protection, Li says those diverse communities face elevated risk that GOP legislatures will attempt to maximize seats for white Republicans. They could do this either by concentrating minority voters into a few districts or dispersing them too widely to have much influence—what’s known as “packing and cracking.” “To win back the House,” he told me, “Republicans have to target communities of color.” The Biden Justice Department and civil-rights groups can challenge such maps under another surviving provision of the original VRA. But those cases are difficult to win and can take years.

All of this shows how another round of severe gerrymandering could dilute the political impact of demographic change. One of the next decade’s defining demographic stories will be the steady march of diversity up the age ladder. In the 2020 census, nonwhites for the first time are expected to become a majority of the nation’s under-18 population, notes William Frey, a demographer at the Brookings Institution’s Metropolitan Policy Program. By 2030, people of color, also for the first time, will comprise a majority of the population younger than 30, he forecasts.

But Republican-controlled legislatures in the Sun Belt states that are at the epicenter of that transition can dull its political impact by drawing district lines that favor older white voters, Li notes. “These gerrymanders could delay the American future,” he told me. “Our future is coalitional, our future is multiracial, and these gerrymanders could mean that Congress and state Houses continue to look much whiter than states as a whole—and older. It will be older voters who determine the future.”

The long odds that Democrats can stop the approaching red-state gerrymanders—either in state legislatures or in the courts—means their only real point of leverage to avoid this fate is through their federal election-reform agenda. While Democrats are in a race against the clock, Li and Levitt both agree that if the party can pass those proposals fast enough, they could influence the current redistricting process (especially because delays in completing the census will delay redistricting as well).

H.R. 1 “would matter in a big way” to shape the current redistricting through its provisions establishing clear national standards to govern the line-drawing process, Levitt said. House aides told me that those provisions—including prohibitions on any map that discriminates against minorities or “unduly favors or disfavors a political party”—will be written to take effect immediately. That provides Democrats with a fallback if another key provision of H.R. 1—a requirement that states use independent commissions to draw congressional lines—can’t be put into effect quickly enough to affect the current redistricting, as seems likely. “We are going to address partisan gerrymandering and we are going to prevent Republicans from putting forth extreme district lines, but the method and what that looks like is going to be shaped by how quickly we move,” said one House Democratic aide involved in the planning, who spoke with me on the condition of anonymity to discuss internal plans.

Likewise, while experts say that it would be difficult to fully restore the federal preclearance process in time, the new VRA could still shape the redistricting outcomes through its provisions that give judges more leeway to issue injunctions blocking racially biased maps.

The magnitude and speed of the GOP’s efforts since its 2020 losses to impose new state-level voter-suppression laws, even as it gears up for aggressive gerrymanders, have exceeded even the most alarmist predictions from Democrats and voting-rights advocates. If nothing else, the sudden and sweeping Republican efforts to tilt the rules of the game should leave Democrats with no illusions about the fate they can expect if they allow the filibuster to block new federal standards for redistricting, election reform, and voting rights. H.R. 1 and a new VRA represent the Democrats’ best, and perhaps only, chance to preempt the multipronged offensive Republicans are mounting to tilt the balance of national power back in their direction—and potentially keep it there for years.