Wisconsin activists display a sign decrying the 2013 US Supreme Court decision that struck down key provisions of the 1965 Voting Rights Act in Madison, Wisconsin. (Photo: Joe Brusky)

The Wisconsin voting rights case before the Supreme Court has been cast as the definitive test of whether partisan gerrymandering is permitted by the Constitution. But a closer look at the case and others like it shows that race remains an integral element of redistricting disputes, even when the intent of those involved was to give one party an advantage.

Consider Gill v. Whitford, the Wisconsin case that was argued last week before the nation’s highest court.

During its journey through the legal system, the case has turned on whether Republicans secured an impermissible advantage over Democrats in the way Wisconsin’s Republican-controlled legislature redrew district lines after the 2010 census.

But because of the deep racial divides that pervade American politics, the story is not that simple.

Wisconsin’s Democratic Party includes a substantial number of African-American and Latino voters, particularly in cities like Milwaukee. When you look more closely at redistricting plans drawn in Wisconsin and elsewhere, you see that both parties have improved their statewide prospects by diminishing the political power of minority voters.

As they fight in court over lines drawn after the 2010 census, Democrats and Republicans alike are anxiously waiting to see what the decision in the Wisconsin case will let them do after the 2020 census.

Michael Li, senior counsel at the Democracy Program at New York’s Brennan Center, said the ruling carries extra weight because we can expect the most sophisticated chicanery yet.

“I’m worried about a record level of gamesmanship in 2021,” said Li. “There could be an unprecedented redistricting war, and both sides are going into it fully armed.”

Paul Smith, the attorney presenting oral arguments on behalf of the voters challenging the Wisconsin map, echoed this sentiment.

“What the court needs to know is it’s — this is a cusp of a really serious, more serious problem,” Smith told the justices. As computing power and data for redistricting continue to improve, he said, “you’re going to have a festival of copycat gerrymandering the likes of which this country has never seen.”

While many voters would be affected by such a festival, not all voters would be affected equally.

The record shows that the reliably Democratic voters in communities of color are crucial chess pieces in the partisan game that is redistricting. Republicans often benefit from packing such voters into districts, making other districts safer for Republican candidates. Conversely, a state’s Democratic Party can benefit if it divides communities of color among many districts, giving each a reliable majority of voters who will support the party’s candidates. This technique, known as “cracking” in map drawers’ argot, often harms minorities, voters who might have greater clout if they were kept in a single district. In some cases it has proved politically expedient for the party drawing the lines to both crack and pack minority voters.

The Supreme Court’s 2013 decision in Shelby County v. Holder largely ended prior review of district lines by the Justice Department. That, along with rapidly improving technology that makes it ever easier to hide manipulation of communities of color for partisan gain, and the influx of massive amounts of dark money into redistricting, have put some of the voting power of minorities in jeopardy.

If the Supreme Court upholds the lower court decision in Gill, it will allow judges to evaluate, and possibly reject, redistricting maps based on a mathematical formula intended to identify partisan gerrymandering. It could offer those suing on behalf of minority voters a tool for fighting racial discrimination that wouldn’t require the high standard of proof and commitment of resources a typical Voting Rights Act case would, said Leah Aden, senior counsel at the NAACP Legal Defense Fund.

Upholding the lower court ruling in Gill would also reduce the incentive for political parties to use perverse (some would say cynical) interpretations of the Voting Rights Act and Constitution as a way to defend or attack partisan maps, Aden said. In Wisconsin, and also in Texas and North Carolina, gerrymandered maps have been defended by parties with an argument Aden called “The VRA Made Me Do It.”

Gill v. Whitford features a novel variation of this tactic. A brief filed by the Republican Party contends that using the suggested mathematical formula to flag districts drawn for partisan reasons would violate the Voting Rights Act because districts with a majority of minority voters — Democratic districts — could get flagged as unfairly drawn.

At times, Democrats have also invoked the Voting Rights Act for partisan reasons, according to Smith, the attorney who argued the Democrats’ side in Gill v. Whitford. The formula endorsed by the lower courts would allow Democrats to challenge redistricting lines without classifying their objections as a defense of minority voting rights, Smith said during oral arguments. This would reserve the important tools for protecting minority voting rights for cases in which they are legitimately needed.

Let’s start with Wisconsin. It may indeed be a partisan gerrymander, but it still illustrates the complex intersection of race and politics.

Manipulating a map to move around Wisconsin Democrats also means manipulating a map to move around Wisconsin voters who are not white, said Malia Jones, an applied demographer at The University of Wisconsin-Madison.

“Wisconsin is one of the most segregated states in the nation,” Jones said. “When we are talking about geography we are also talking about race.”

One example can be seen in an assembly district on the western edge of Milwaukee, a city infamous for its near-perfect division between downtown African-American neighborhoods and white affluent suburbs. In an unprecedented move, Republican map drawers crossed the Milwaukee County line to loop 60 percent minority city neighborhoods into a sprawling suburban district that is, after the redistricting, 87 percent white, according to a ProPublica analysis.

In Highly Segregated Areas Like Milwaukee, Race Always Plays a Factor in Redistricting

Proportion of white, Black and Latino residents in Milwaukee County.

This is, in fact, a dilution of Democratic voting power. But it also places thousands of African-American and Latino citizens in a heavily white district where they have little hope of electing a candidate who will represent their interests.

“Clearly there is an impact on minority populations,” Jones said.

As in many gerrymandering cases, the attorneys defending the state’s redistricting have argued that the map reflects, among other considerations, an effort to comply with the Voting Rights Act and protect minority voters.

The first test of the Wisconsin map was a successful challenge arguing racial discrimination. In Baldus v. Brennan, federal judges ruled that two state assembly districts in the Latino area of Milwaukee were an example of cracking.

Depositions given by the Republican map drawers as part of the case show that this was hardly an accident. They sought input from the Mexican American Legal Defense and Educational Fund, but then disregarded it in order to limit consideration of Latino voters to two assembly districts and keep the rest of the map intact.

Emails surfaced showing the map drawers had worked with a political science professor in Oklahoma to manipulate the difference between the number of voting-age Latino residents in a district and the number who are citizens and eligible to vote.

While the court found that Latino voters’ rights had been violated, they only changed the two assembly districts.

The outcome of Gill comes at a time when minority voters are facing obstacles they haven’t faced in decades.

Before 2013, Section 5 of the Voting Rights Act required states and municipalities with a history of discrimination against minority voters to submit redistricting plans to the Department of Justice for review by attorneys, investigators, data analysts and sometimes political scientists.

The Department of Justice could reject the plan, preventing the proposed districts from ever being used in an election. The state or municipality could challenge the decision in federal court, but would be up against the formidable resources of the department.

Though it was imperfect, “there’s no doubt preclearance had a significant deterrent effect,” said John Powers, a former Section 5 analyst at the agency who now works for the Lawyers’ Committee for Civil Rights Under Law.

It also forced jurisdictions to report changes to districts, Powers said. While a change to a congressional district is unlikely to go unnoticed, a change at the local level might — even though those lines can have a huge impact on citizens’ lives. “Now, they can make changes and it’s possible no one will even know.”

In 2013, however, the Supreme Court ended many protections of the law. Though Section 5 is still in place, nearly all jurisdictions once subject to preclearance are no longer.

States and other jurisdictions did not even wait for the next census to get to work on re-engineering their political maps. The state of Georgia and municipalities in Louisiana, North Carolina and Texas drew new lines, prompting immediate lawsuits. All would have required pre-approval before the Shelby ruling.

For example, Georgia currently faces a lawsuit from the NAACP over two changes in their mid-decade redistricting. Ahead of the 2016 election, legislators shifted over a thousand African-American and Hispanic voters out of Georgia House District 105, one of the most contested seats in the state, to a majority-white neighboring district with an uncontested seat. The Republican incumbent in District 105 won by fewer than 250 votes.

Republicans were “trying to shore up districts that were too close for comfort by moving around African-Americans,” said Li.

Georgia’s Mid-Decade Redistricting Plan Moved Around Minority Voters to Secure a Republican Seat

The effective end of preclearance shifted the burden of policing the system from the government to privately funded lawsuits, and it allowed contested maps to come into effect while those costly lawsuits wended their way through the courts — often, for years.

Anita Earls, an attorney who has handled many redistricting lawsuits — including the ongoing suit in North Carolina — said even simple cases that do not go to trial can cost tens of thousands of dollars. A recent lawsuit over city council redistricting in Pasadena, Texas, cost plaintiffs over a million dollars. Larger cases, like North Carolina House and Senate redistricting, can run up legal bills of millions of dollars and take many years. In some cases, the defendants can eventually be compelled by the court to pay the plaintiffs’ legal bills, but plaintiffs are required to front the money. Reimbursements are by no means guaranteed.

Earls said her group, the Southern Coalition for Social Justice, has had to turn down requests for help.

“There are a lot of different cases where we have to tell them we don’t have money and staff,” she said. “There are places where people end up just kind of living with the unfair plan.”

Redistricting lawsuits also take time — often years — a phenomenon that supporters of the Whitford plaintiffs hope will be ameliorated by removing the complication of challenging districts one at a time.

While the court challenges drag on, interim lines often remain in effect as votes are cast. North Carolina has gone through three election cycles using state legislative lines later found to be discriminatory.

In 2017, 19 North Carolina House Districts Were Overturned for Packing Black Voters

Black population by North Carolina House Districts and overturned districts.

When party operatives and legislators draw maps, they are aware that it could take years to overturn a redistricting plan, and intentionally use delaying tactics to make sure elections take place under the most favorable circumstances, Earls said.

In North Carolina, she said, state officials “at every step of the way tried to delay litigation, did everything they could to stretch this out.”

As ProPublica has previously reported, donors who supported the racially gerrymandered plan even used a front group to manipulate state judicial elections, so as to ensure redistricting cases would be heard by a Republican panel of judges.

Pressure on state judges further delayed the legal process, forcing the litigants contesting North Carolina’s redistricting plan to turn to the federal courts, Earls said.

Such delays can pay political dividends. During the years North Carolina’s maps were being challenged in court, the legislature under the disputed map passed laws that substantially affected African Americans. Lawmakers imposed stricter rules for voter ID and eliminated the state’s earned income tax credit, a provision that lowers the taxes paid by the poorest residents.

“North Carolina has had a crazy few years in terms of legislation,” said Li of the Brennan Center. “You can’t turn back the clock, what’s happened has happened.”

While citizen groups struggle to find resources to mount redistricting battles, state legislators use money from the state treasury to defend their redistricting maps. Regardless of the outcome, the taxpayers, not the political parties or campaign committees, end up on the hook for legal costs.

North Carolina’s redistricting saga also illustrates the false distinction between race and politics that permeates redistricting.

In their secret map-drawing process, Republican operatives were explicit about their plan to achieve their desired political outcome: a “10-3” map that had 10 safe Republican congressional districts with only three for Democrats, a big change for a state that at the time had a delegation with seven Democrats and six Republicans.

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And they were also pretty explicit — at least to each other — about how they planned to achieve their desired party breakdown.

In an email circulating two proposed maps, Tom Hofeller, a Republican redistricting expert sent in by the national Republican Party wrote that both “incorporate all the significant concentrations of minority voters in the northeast into the first district.”

Earlier this year, the Supreme Court affirmed lower court decisions that found North Carolina’s congressional and state legislative maps discriminated against minority voters, specifically by packing minorities into a small number of districts to achieve the maximum number of Republican-friendly seats.

Required to draw new maps, Republican state party leadership announced they would achieve the same 10-3 congressional delegation breakdown, and the same healthy majority in the state legislature, without looking at race at all.

“Race was not among the criteria we considered when we drew these maps,” David Lewis, the Republican member of the state assembly who served as the redistricting point person, told the Associated Press.

Hofeller, the same consultant who drew the original maps, would redraw the maps only looking at political data, with an eye to protecting incumbents elected under previous maps, Lewis said.

In other words, a strictly partisan gerrymander.

But the groups who originally sued against the racially gerrymandered maps said the new maps had simply become discriminatory against African-American voters elsewhere in the state. Once again, they asked the courts to strike those maps down. The case is pending.

“You can’t comply with Voting Rights Act and avoid racial bias by simply ignoring race altogether,” said Bob Hope, Executive Director of Democracy NC.

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Texas Is No Stranger to Overturned Gerrymanders

Some states have been found to violate the civil rights of minority voters during multiple redistricting cycles. Texas’ district lines — drawn by both Republican and Democrat-controlled legislatures — have been thrown out on racial-discrimination grounds for nearly 30 years — during the redistricting of the 1990s, the 2000s and the 2010s.

Three decades of struck-down congressional district maps.

Emails between those who drew the maps in 2010 show intentional exploitation of Hispanic voters to achieve partisan goals.

In a series of emails between map drawers, they discuss a phenomenon called “OHRVS,” an acronym which stands for Optimal Hispanic Republican Voting Strength. That acronym was defined by Eric Opiela, a Republican party operative, as “a measure of how Hispanic, and Republican at the same time we can make a particular census block.”

By substituting groups of Hispanic voters with low voter turnout for those with high turnout, Republicans were able to draw hypothetical maps that would create seemingly impossible political districts. One example is a 67 percent Hispanic congressional district that the map drawers projected would nonetheless likely have been won by John McCain or former Republican Gov. Rick Perry.

Texas, which in the 1990s was run by Democrats, also contradicts the notion that Democratic party interests necessarily align with those of minority voters, Aden said.

“In current politics Republicans dominate state legislatures, so more recently it’s Republicans that have been accused of undermining the redistricting process,” she said, but before this recent turn, districts in Texas, Arkansas and Mississippi drawn by Democrat-controlled legislatures were found to be discriminatory.

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Though scrutiny of statewide partisan redistricting (one of Gill’s possible outcomes) could be a useful tool to keep state parties from going overboard — and also to fight racial gerrymandering — it cannot detect the subtleties of racial gerrymandering like those that took place in Georgia and Wisconsin.

Those gerrymanders will still have to be challenged the old-fashioned way, and in order to do that, challengers will need access to information about how decisions were made in drawing maps.

But transparency in redistricting is the exception, not the rule.

One thing the states we reviewed have in common is that the public map-drawing process was largely a charade. Emails and documents that subsequently emerged showed the real drawing was done behind closed doors by party operatives and consultants.

In Wisconsin, for instance, the maps were drawn at a law firm associated with the Republican Party, and vetted by the Republican National Committee before anyone in the general public was even allowed to see them.

In North Carolina, the maps were also drawn at a non-government site and a wealthy donor was allowed to see drafts and offer input.

In Texas, Republicans in the state legislature turned to consultants operating in secret.

As more donor money flows into the process and mapmaking tools get more sophisticated, the importance of map drawing in the public eye will only become more important, said the Brennan Center’s Li.

Regardless of the outcome of Gill v. Whitford, experts say it will be important for the public to have a detailed picture of the redistricting process. That goal, they say, can only be achieved when the map drawing process is truly public.

“If communities aren’t being heard, or shut out, if a redistricting plan is rammed through or rushed,” Aden said, “That is a step that needs to be exposed.”