Earlier this week, the United States Supreme Court issued its ruling in the much-anticipated partisan gerrymandering case, Gill v. Whitford. In this blog entry we will examine how the Gill decision affects the political power of communities of color.
One of two partisan gerrymandering cases heard this term, Gill is the voting case from Wisconsin; the other is Benisek v. Lamone, a case from Maryland. The Court declined to rule on the merits of both cases. Instead, it punted Gill back to the lower courts based on standing, which amounts to a legal technicality. Benisek was also decided on a technicality.
The Court thus could have set a federal legal standard to combat the most excessive forms of partisan gerrymandering. But it did not. Some say this may be a good thing. At least we did not get a bad rule, and we should also turn to state constitutions for protection.
While racial gerrymandering claims are legally distinct and separate from partisan gerrymandering claims, the tactics at issue in all of these cases produce the same practical effect: diminishing the political power of our communities.
But Gill’s avoidance effectively grants state legislatures the reprieve to continue to diminish the political power of marginalized voters through harmful redistricting tactics.
Because let’s get real: Partisanship is highly correlated with race. While racial gerrymandering claims are legally distinct and separate from partisan gerrymandering claims, the tactics at issue in all of these cases produce the same practical effect: diminishing the political power of our communities. While Gill is a “partisan” gerrymandering case, it has large consequences on the political agency of communities of color.
As many have noted, there is a very thin line between partisanship and race in the United States. The exploitation of historic patterns of residential segregation by “packing” and “cracking” districts to move around Black and Brown voters who often share similar political preferences is at issue in both “racial” and “partisan” gerrymandering cases. So, while the Court may continue to treat “partisan” and “racial” gerrymandering as distinct legal concerns, the impact felt by communities of color is still the same.
Gill is yet another example of the high Court’s failures to protect the right to vote of all. The decision comes on the heels of the Court’s other recent voting rights decision, Husted v. A Phillip Randolph Institute, in which the Court upheld Ohio’s system of voting purges, as well as its historic 2013 decision, Shelby v. Holder, in which it gutted the core of the Voting Rights Act of 1965. Cast in that light, Gill represents another example of the nation’s highest court refusing to protect the civil and political rights of Black and Brown Americans.
As a result, we are now in the most hostile voting environment for communities of color since the Jim Crow era. Policies like felony disenfranchisement, strict voter identification requirements, and other voter suppression tactics have left millions of otherwise eligible Black and Brown voters on democracy’s sidelines.
The Court will have the opportunity to directly rule on the issue of racial gerrymandering in its upcoming decision this month in Abbott v. Perez. There, the Court will assess whether or not the Texas Legislature’s explicit attempt to dilute the voting power of Latinx communities is unconstitutional.
Regardless of outcomes, advocates and organizers must continue to prepare and mobilize our communities for the midterm elections this fall and for years to come.
In an era where we are witnessing the re-emergence of White ethno-nationalism, the Supreme Court’s failures to protect the right to vote of all threatens the very safety and well-being of our communities. These decisions call into question the full citizenship of Black and Brown Americans and our collective right to political self-determination – an issue thought to have been settled nearly 150 years ago. Despite what these rulings might suggest, communities of color still have political agency and voice and lifting those voices we can restore the promise of American democracy.
Clarence Okoh is rising 2L and Root Tilden Kern Scholar at NYU Law. He is an intern at Advancement Project’s national office and is originally from Birmingham, Alabama.