Where the United States draws the line in election law has never been more important to the preservation of democracy — especially when it comes to representation, which Michael Li said is “the cornerstone of democracy.”
Li, senior counsel at the Brennan Center for Justice, tackled the multidimensional issue of gerrymandering Thursday, July 28, in the Amphitheater, discussing how redistricting has impacted politics and how it will continue to change in the future. His lecture was titled “The Fight Against Gerrymandering: How Are We Doing?”
Li practiced law at Baker Botts in Dallas for 10 years before joining the Brennan Center, where he specializes in voter rights and redistricting. Author of a widely cited blog on redistricting, Li is a regular commentator on election law and has appeared on MSNBC, NPR and “PBS NewsHour.” He has also written for publications like the New York Times, Los Angeles Times and USA Today.
As the fourth Chautauqua Lecture Series speaker for Week Five’s theme “The Vote and Democracy,” Li opened his lecture by drawing on a conversation he had with Tuesday’s 10:45 a.m. speaker Linda Chavez, chairman of the Center for Equal Opportunity.
On the front porch of the guest house on the grounds, Li asked Chavez if she was pessimistic or optimistic about the future of the United States, given the political and social strife afflicting the country — she responded that she was “worried.”
Li asked the audience the same question before telling them that his talk would offer both a hopeful and daunting perspective on voter rights.
He launched into his discussion of gerrymandering by reciting Supreme Court Justice Samuel Alito’s opinion on the overturning of Roe v. Wade.
“He says, ‘Women are not without electoral or political power. It is noteworthy that the percentage of women who register to vote and cast ballots is consistently higher than the percentage of men who do so,’ ” Li said. “Now, there’s a lot that’s wrong with those statements. … At the heart of it is the idea that if you don’t like the laws that are passed by lawmakers, just vote them out.”
Alito’s insinuation that the people of the U.S. can choose what happens in their country, however, discounts the injustices gerrymandering has in creating a majority unreflective of the actual population.
In reading Alito’s opinion, Li thought of his home state Texas, which, in 2021, redrew maps that allowed Republicans to win the majority with only 44% of the vote, while Democrats had 56%.
“That, in short, is not what democracy looks like,” Li said “… There is no more vivid illustration of why what Justice Alito says will work, won’t.”
In 2019, the Supreme Court had the opportunity to make partisan gerrymandering unconstitutional in Rucho v. Common Cause; but, the Court tabled the question.
“They said it is a political question that we are not going to decide,” Li said. “When it did that, it has opened the door to partisan gerrymandering around the country, because now, as long as you can claim that you’re doing it for political purposes, even if it’s to target an opponent, even if it’s to benefit yourself, even if it is to benefit your party, that’s OK.”
The Rucho decision made not only a statement on politics, but on discrimination.
“The Supreme Court’s decision in Rucho has opened the door not only to political discrimination,” Li said, “but also to racial discrimination, if the courts are not willing to dig deeply and try to separate out when the motive is racial and when it is political.”
Li connected the 2019 decision to the American Revolution and struggle for representation in British Parliament.
“Representation is important, and it’s important that the bodies that make our laws and decisions for us should look like us,” Li said. “That just doesn’t happen if you put the thumb on the scale in the way that has happened in recent years.”
To understand this imbalance, and redistricting in its entirety, Li briefed the audience on the dynamics of national politics in the last decade.
The first aspect he highlighted was that the rate of population growth is the slowest it has been since the Great Depression, climbing only 7.4% in the last decade. That growth is most prevalent in the South and the West, home to 40% of all Americans.
Population growth, in combination with racial demographics, affects redistricting.
The population growth of Black Americans increased by 2.5 million people in the last 10 years, and the South specifically has witnessed this growth with two-thirds of that increase living in the South. The South’s growth also increased with half of all immigrants who have come to the U.S. in the last year settling there.
Another facet of national, racial demographics Li touched on was that for the first time in the last decade, the white population in the United States fell.
“This is a major driver of a lot of what is happening both in redistricting and in terms of our country’s politics,” Li said. “There’s no question that demographic anxiety lies at the heart of a lot of what I’m going to talk about today.”
The last piece of Li’s briefing discussed the people who draw the maps themselves. In 2011, Republicans controlled 187 congressional seats, as opposed to Democrats’ 75 seats. Republicans “maximized their advantages” and made it hard for Democrats to win back control.
“Had Donald Trump not been elected and had there not been sort of the suburban shifts that followed his election, it’s likely that the House would have remained Republican all of last decade,” Li said.
Having “set the table” for the discussion on gerrymandering, Li went on to define redistricting through the lens of seven specific examples.
First, he said that Democrats did fairly well in the last decade, now on a path to the majority in future years. In 2020, President Joe Biden won 197 Democratic seats by more than 8 points and won 30 seats by less than 8 points.
“Democrats drew maps in a way that suggests that they thought that the Biden coalition of recent years — the coalition of women and younger voters and voters of color and suburban, college-educated women — would hold together, largely,” Li said. “That’s a very optimistic version of the country. Republicans didn’t — so Democrats drew seats that were a lot more like 54%, 53%. This is good enough for us. Republicans drew seats that were a little bit safer than that.”
The maps, however, are still “wildly skewed,” which was Li’s second point. In the last decade, nine states had maps initially passed at the legislature that were considered significant partisan gerrymanders.
The third: Competitive districts are disappearing. Li again pointed to Texas to illustrate this phenomenon.
“It used to be in Texas that Republicans won, or Donald Trump won 11 districts by 15 or more points,” Li said. “After redistricting, he wins 21, so it almost doubles. Republicans only have 24 seats in Texas. 21 out of the 24 seats they have are super-safe districts that Donald Trump won by 15 or more points, and that provides a lot of insurance — both against demographic change and political shifts.”
Denton County, Texas, further demonstrates this shift. Situated in the 26th congressional district, Denton County is home to a high-tech industry and college-educated women who are typically left-leaning. The area was sectioned off to join a district with the Texas panhandle, 700 miles away. This maneuver joined the rural suburbs of Texas with an urban area in contoured ways to control majority vote.
“If you’re scared of both people of color and of college-educated white women, there’s only so much you can do, and you have to end up doing something like this,” Li said, motioning to the gerrymandered map of Denton above him.
On a more positive note, the fourth example offered hope for the future, and lies in state courts. This decade, state courts in New York, Maryland, North Carolina and Ohio have struck down gerrymanders.
“Increasingly, people are looking to state courts and to state constitutions as a possible remedy for gerrymandering,” Li said. “I think that state courts are oftentimes ignored in vain and state constitutions are ignored in vain. … There’s a rich state constitutional tradition … to focus only on federal courts, and that’s really not where all the action is at.”
With the rising power of the state courts comes a counterattack. For example, Republicans wanted to impeach Maureen O’Conner, a Republican Chief Justice of the Ohio Supreme Court, after she struck down partisan gerrymanders.
“State courts are playing a bigger role, but there’s also push back from state courts,” Li said. “Also, watch for judicial elections in lots of these states to be highly, highly polarized going forward.”
Li also brought up the independent state legislature theory, which asserts that only Congress can override a state law relating to federal courts or redistricting, not the state itself. When this doctrine — or theory, depending on who one asks — was raised after the Pennsylvania Supreme Court struck down the state’s congressional map in 2018, the case was taken to the Supreme Court. Alito immediately denied it.
The general attitude toward the theory is now changing.
“Flash forward just four years, and you have a majority of the court deciding to hear a case out of North Carolina, deciding whether the North Carolina Supreme Court has the power to strike down a congressional map for violating the North Carolina Constitution,” Li said. “At least four justices agreed to hear that case, and there seems to be a path to a majority, and that’s really worrying because state courts are jumping into the equation, and now the U.S. Supreme Court could take them out.”
Li then moved to discuss the sixth example, redistricting reforms and their successes and limitations, by talking about the stark differences in Michigan and Ohio.
In 2016, volunteers in Michigan created an independent commission aimed to eliminate gerrymandering. The commission received half a million signatures and passed with 60% of the blue vote. Michigan, which was previously one of the worst gerrymandered states in the country, is now among the least gerrymandered states.
By contrast, Ohio adopted a reform that left line drawing in the hands of the elected officials.
“While courts in Ohio can strike down a map, they can’t put in place a new map,” Li said. “They can only send it back to the people who drew the last gerrymandered map and say, ‘Fix this.’ You would think the Court telling you to fix this would cause you to fix it. That has not happened in Ohio, either at the congressional level or the legislative level.”
The seventh and last point Li included was that above all, gerrymandering creates a disappointing cycle for people of color.
“There is some good news for our communities of color in electoral politics around the country, which sometimes I don’t think we do enough to acknowledge,” Li said. “That is, that people of color are increasingly winning in districts where the minority share of the population is not particularly high.”
Alabama is a state with prevalent racial discrimination drawn into the electoral districts. Li said that there is only one district in which Black voters enjoy political success, and the rest ignore the “Black belt” of voters at the bottom of the state.
“You see the band of Black voters stretching across Alabama? That’s the Black belt,” Li said, pointing to his slides. “That is the old cotton belt of Alabama that has hundreds of years of shared history, common challenges, common needs. In a lot of ways, the idea that the Black belt is divided up among four different districts is crazy, because everybody agrees what the Black belt is. Everybody understands that it has a shared history that stretches back, again, hundreds and hundreds of years.”
Li said that as gerrymandering persists, the effective use of the Voting Rights Act dwindles.
“I think really the challenge for us is going to be, increasingly with this Court, to think outside the box, and to think about other alternatives,” Li said. “ … There’s never really been a successful multi-racial democracy where there isn’t a dominant group, and that’s a challenge for us. How do we do that? I think it’s important for us to be prepared to think outside the box, because that is a very dark place that we are in.”
To conclude his lecture, Li noted that the original First Amendment the founders drafted would have created a Congress different from what was actually made, one with far more seats and members. Li discussed this original amendment as a way to say that “we should not, at this moment, be afraid to think outside the box.”
“It is easy to curl up in a ball sometimes and think all is lost,” Li said. “But at this moment, we should be brave like the founding generation was and we should, in the words of Scripture, ‘fear not,’ because if we’re going to keep our country, it’s up to us to redefine it. Every generation gets to define anew, and that is our challenge, our task.”
