If voting rights groups are correct, the U.S. Supreme Court has opened the door to unchecked racial gerrymandering.

On February 7, 2022, the United States Supreme Court in Merrill v. Milligan denied an application for injunctive relief in an Alabama redistricting case. In this case, several civil and voting rights groups sued Alabama alleging that the Republican drawn congressional and legislative maps were racially discriminatory. The groups argued the maps diluted the voting strength of Black voters by packing a large number of Black voters into a single district and placing remaining Black voters across multiple districts. In short, the petitioners argued these maps were discriminatory because it denied Black voters the opportunity to elect the candidates of their choice.  

In and of itself this is not unusual because in Purcell v. Gonzalez the Supreme Court limited the circumstance when federal courts can intervene in state election litigation prior to an election (the Purcell principle). Among other things, the Purcell principle requires the plaintiffs to show “the underlying merits are entirely clearcut in favor of the plaintiff…” In his concurrence, Justice Kavanaugh posited the Alabama voting rights groups could not establish that the underlying merits favor the plaintiffs. He further questioned whether the merits of the case were supported by the Voting Rights Act and the Equal Protection Clause. 

In light of Congress’ inability to pass the John Lewis Voting Rights Advancement Act, voting and civil rights activists are concerned Kavanaugh’s concurrence is a clear signal that what protections remain against racial gerrymandering are at risk. The John Lewis Voting Rights Advancement Act would have restored protections against racial gerrymandering by reinstating Section 5 of the Voting Rights Act. Because it is unlikely Congress will take-up any other voting rights measures, this begs the question of what can be done to combat racial gerrymandering short of federal legislative action? The pertinence of this question will only continue to grow as eight other states currently in litigation due to alleged racial gerrymandering.¹

Unite America has long supported the establishment of independent redistricting commissions as a potential recourse. In fact, independent redistricting is one of Unite America’s key reforms. As I have previously written, independent redistricting is an important step toward restoring trust in our democratic institutions. In a February poll, three-quarters of respondents want more transparency in redistricting. Additionally, 63% of respondents support the use of independent commissions to draw congressional and legislative maps. It is abundantly clear that the public overwhelmingly supports independent redistricting commissions.

Historically, the racial gerrymander has been used to limit the political influence of minority groups. Both parties have used the racial gerrymander to give minority groups the allusion of political influence without providing any real political power or electability. Independent redistricting commissions encourage districts drawn to promote cross-racial and cross-partisan coalition building. According to redistricting expert Michael Li, independent redistricting commissions are better at protecting BIPOC communities. 

However, this does not happen organically simply because maps are drawn by an independent redistricting commission. The independent commission must be created with certain principles embedded in its structure. The NAACP Legal Defense Fund has established six principles to ensure independent redistricting commissions promote racial equity and conform to the requirements of Section 2 of the Voting Rights Act.² These principles are as follows:

1. Include language that protects minority voting rights principles in redistricting criteria;
2. Reject redistricting criteria that will hinder the protection of minority voting rights principles;
3. Require the creation of districts where minorities can combine with other groups to have an opportunity to elect candidates of their choice when feasible;
4. Establish a process structured to yield a diverse commission;
5. Include minority perspectives at the planning stage; and
6. Eliminate fairness barriers that dilute minority voting strength. 

Particularly in states with single-party control of the redirecting process, without independent redistricting, there is significant risk of redistricting abuses. There were expectations following the 2020 census that BIPOC communities would have increased opportunities for electoral representation. However, this has failed to play out in this round of redistricting. This is especially true in states where a single-party control of redistricting. Further, BIPOC communities did not make any gains in states where, demographically, they should have.

The Merrill decision raised the specter of a world where federal courts will not intervene to stop the worst redistricting abuses. Absent federal intervention, independent redistricting commissions provide states with  an effective backstop against anti-voter gerrymandering.

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1 Those states are: Alaska, Arkansas, Georgia, Illinois, North Dakota, Pennsylvania, South Carolina, Texas

2 Section 2 prohibits voting practices that deny or limit the right to vote due to race, color, or status as a language minority.