Race Conscious Independent Redistricting Commissions: Protecting Racial Minorities’ Political Power Through Rules-Based Map Drawing

Abstract

The United States is changing, and the mechanisms of its democracy must change with it. A new non-white majority is emerging after decades of demographic shift. Federal voting rights doctrine, developed throughout the Civil Rights Era, is premised on a biracial conception of American society. Withering under sustained attack, federal protections have also become antiquated in a rapidly developing multiracial society where conceptions of race and community have become significantly less binary. Congressional inaction, along with the Supreme Court’s seeming hostility to federally enforced voting rights protections, has left states as the primary means to create fairer democratic processes, especially when it comes to redistricting. While some states have taken the vital step to improve their map drawing processes by creating independent redistricting commissions, there have been limited to no new state-level protections aimed at defending minority voters’ electoral power in redistricting. The states instead have relied on an increasingly weak Voting Rights Act and other federal voting rights protections. Independent redistricting commissions are an attractive vector to create these additional protections to not only proactively protect minority voters’ electoral power during the map drawing process, but also give minority voters the evidentiary record to successfully enforce these new protections through litigation. By targeting both the underlying requirements redistricting maps must meet and the transparency of the overarching process, independent redistricting commissions could be effectively transformed into a robust tool to ensure multiracial democracy.