In 2019, the high court ruled that gerrymandering for partisan gain was beyond the reach of federal courts, leaving such claims to be argued at the state level. Gerrymandering to dilute minority voting power is still illegal under Section 2 of the Voting Rights Act, but experts worry that now it could be possible to disguise a racial gerrymander as a partisan one.
More concerning for voting rights groups was the 2013 ruling’s removal of the preclearance requirement in Section 5 of the Voting Rights Act. While preclearance scarcely prevented all gerrymandering, experts argue that it created a deterrent and that its absence this year opens the door to abuse.
“I am up late at night often, unable to sleep, pondering how bad or how aggressive some of those states might be in undoing the protections that were granted from Section 5 that no longer are in effect,” said Jonathan Cervas, a postdoctoral fellow at Carnegie Mellon University who studies gerrymandering. “And I can imagine that a particularly aggressive legislature, where it benefits them, may not draw minority districts.”
As Republican maps are drawn, Democratic and civil rights watchdogs will especially scrutinize them for two gerrymandering tactics commonly known as cracking and packing. Cracking splits a minority community into many different districts to water down its impact, and is often a fear in cities. Packing combines many minority voters into a single district, diluting their overall voice in a state, and is more commonly tried in rural areas.
While diluting the votes of minority communities remains illegal, Mr. Cervas said that without preclearance, such tactics could be used anyway, and that the resulting legal challenges were increasingly unlikely to be resolved in time to affect the 2022 elections.
Mindful of the calendar, the National Democratic Redistricting Committee, a group founded by former Attorney General Eric H. Holder Jr., has already begun litigating in Louisiana, Minnesota and Pennsylvania.
Kelly Ward Burton, the group’s president, said it was not about to wait. “If and when they gerrymander, which we expect them to, we will be ready to sue them,” she said. “We will use all of the legal tools at our disposal, which is everything from federal litigation to state-based litigation based on state law.”