When the 2020 census data was released in August, there were plenty of reasons for liberals to celebrate. For the first time in history in American history, the portion of white people dropped below 60 percent. People of color, who overwhelmingly vote for Democrats, now make up the majority of the under-18 population. And metro areas, the hotbeds of liberal thinking, grew by almost 9 percent. As the Democratic political strategist Max Burns wrote in a column for NBC THINK, such results portend a “potential demographic nightmare for a Republican Party that increasingly depends on consolidating white, working-class voters to win elections.”
But things are no easier for Democrats. GOP-dominated state legislatures control some of the country’s most important swing states, such as Florida, Texas, Georgia, and North Carolina, where Republicans could add six to 13 House seats with additional gerrymandering this year. They may gain even more seats by breaking up safe Democratic districts and packing them with Republican-heavy suburbs and rural areas.
Rather than celebrating, then, Democrats are stuck playing defense.
This is especially true in Missouri, where voters in 2020 were essentially tricked into approving sweeping changes to the way the state legislature can apportion districts. Last November, Missourians voted on Amendment 3, a reversal of a 2018 anti-gerrymandering policy that looked like a crackdown on lobbyist gift giving. It threatens to be far worse than anything Missouri Democrats have experienced so far. The new law allows the state legislature to exclude undocumented immigrants and anyone under the age of 18 when apportioning House districts.
If the legislature did that, it would diminish the electoral power of Democrat-dominated districts—and infringe on minority rights and privileges. In other words, it’s a new method of data pulling that Republicans could use to draw districts inherently more favorable to the GOP. The result: even fewer blue districts in Republican-controlled states. As a consequence, swing counties that sent Democrats to Congress in 2018 and 2020 could fall firmly into the ruby-red category.
“What moving away from total population and redistricting would do,” says Yurij Rudensky, a lawyer at NYU’s Brennan Center for Justice, “is it would claw away power from these dynamic areas where people live and return it to areas that are moving in the opposite direction, where fewer and fewer people reside.”
Missouri Republicans haven’t yet taken advantage of their expanded apportionment powers, but they have certainly set the stage to do so one day soon. Rudensky and his team at the Brennan Center also worry that two other states, Texas and Georgia, could soon enact and perpetuate a voting-age apportionment standard, too. If Republicans succeed, they could be embarking on yet another scheme to maintain minority rule—as the constituencies they represent continue to shrink on the national level.
Since the landmark Baker v. Carr decision in 1862, districts have been drawn up on the basis of total population size, with representatives elected to serve everyone in their district. But, of course, not everybody votes. Children, undocumented immigrants, and convicted felons sometimes make up large swaths of the populations of major electoral districts and are ineligible to vote, giving those districts more voting power.
Voting-age redistricting, however, first made its way into the national spotlight in 2015, when Sue Evenwel and Ed Pfenninger sued their native state of Texas because they felt their votes were being devalued compared to people living in large cities. Evenwel was a Tea Party activist who believed that Barack Obama’s real father was the communist activist Frank Marshall Davis. Pfenninger was a religious fundamentalist who believed that unicorns are real. Together, they tried to get the court to make a uniform national standard for drawing up legislative districts—based on eligible registered voters, not total population.
The Supreme Court didn’t bite. It unanimously ruled that elected officials serve everyone who lives in their districts, not just those who cast ballots. But two of the court’s conservative justices, Samuel Alito and Clarence Thomas, opened the door for a broadened understanding of apportionment and vote counting. Both said it wasn’t technically off-limits for states to base apportionment on concepts other than total population—and that legislatures could draw districts based on voting-age populations and other metrics that weren’t technically discriminatory in nature. Under that logic, states could base apportionment on voting-age populations, or even on aggregated totals of how many people usually vote in a place.
Against that backdrop, Missouri voters approved a Democrat-led initiative to overhaul district-drawing practices in 2018. At the time, it looked like governance in the state was turning over a new leaf. House districts would be drawn up by independent judges, allowing gerrymandering to become a far smaller part of the political process. The referendum was dubbed “Clean Missouri.”
After all, change was sorely needed. In those same 2018 elections, Republicans won 71 percent of the seats in the statehouse despite taking home just 57 percent of votes statewide. Decades of GOP gerrymandering had created a fundamentally unfair system in which politicians chose the people who would vote for them, not the other way around. In the past decade, 90 percent of the state’s house elections have been “predetermined,” meaning an opponent from another party stood no shot of winning, according to Sean Soendker Nicholson, principal at the Missouri media firm GPS Impact. Fifty percent of the races during that time weren’t even contested by the other side.
Nicholson has spent the past decade fighting for fair representation around the state. He helped lead the campaign for Clean Missouri and remembers hearing Republican operatives actively planning for a reversal of the new policy the very night that 62 percent of Missouri voters approved it.
The challenge to Clean Missouri made it onto the ballot in 2019—but most voters didn’t realize it. The referendum on the ballot was Amendment 3, which looked like a good thing. The description began by saying it would impose restrictions on lobbying and campaign donations. But deep in the bottom of the paragraph, where most voters stopped reading, was language on new redistricting rules that would undo the popular new nonpartisan redistricting system, under the guise of creating a “bipartisan commission.”
In other words, voters thought they were mainly voting on campaign finance, Nicholson says. “But then, process-wise, it was redistricting. It is a silly system that they’ve instituted where we now have these partisan commissions.”
Missouri isn’t the only state poised to enact voting-age apportionment rules. The Brennan Center published a report in July that focused on Texas and Georgia moving in that direction, in part because both states “are especially susceptible to an apportionment shift because legislators and activists there have deep ties to Republican gerrymandering operatives and are trying to preserve Republican rule.”
Texas is the birthplace of age apportionment plans, which are the brainchild of Republican operatives like the late gerrymandering wizard Thomas Hofeller. Hard drives released after his death show that Hofeller thought a new system in Texas would be “advantageous to Republicans and non-Hispanic Whites.” He argued that it would inflate the political capital of Republican-dominated demographics while ignoring a fast-growing Hispanic community.
He was right. Rudensky and a team of four other researchers at the Brennan Center found that the effects of apportionment by voting age would disproportionately harm young people in inner-city communities while decreasing the political influence of minority voices. Cities like Atlanta, St. Louis, Kansas City, Houston, and Dallas would see “sharp reductions” in political representation.
If legislators come from areas where they represent more people, they’ll be casting votes in the legislature on behalf of a larger share of the state’s population than representatives from rural districts, accounting for a far greater variety of interests and needs. Under the new system, however, legislators who represent far fewer people—who are mainly Republicans—will gain power, while those who represent more people—who are mainly Democrats—will lose it.
Despite the passage of Amendment 3 last November, Missouri Republicans have no stated plans, at the moment, to use a new apportionment standard in drawing districts this cycle. Nicholson says that’s likely because the process would immediately be challenged in the courts.
Nathaniel Persily, a professor at Stanford University Law School, says the Supreme Court did not adjudicate the constitutionality of a voting-age apportionment plan in the Evenwel ruling, but Republican advocates of any voting-age apportionment standard would need to substantiate non-discriminatory intent to prove its constitutionality.
“You cannot do it because of its impact on racial groups,” Persily told me. “And that’s not an apportionment concern. That’s a Fourteenth Amendment and equal protection concern about discriminating on the basis of race. As well as potentially a Section II Voting Rights Act violation. You have to have a reason to use something other than the traditional total-population number. And that reasoning cannot be to just take out certain groups.”
Nicholson sees the implications on the ground. Voting-age apportionment would exclude one in five white Missourians when drawing districts. The numbers of Black and Latino Missourians excluded from the political process, however, would be far greater. One in four Black people in the state, and half of Missouri’s Latino community, would not be reflected in district counting. It would drive down their influence as voting blocks—and limit the number of legislators advocating on their behalf in government.
“If you were to draw maps that only counted adult citizens . . . it would be remarkably discriminatory in its impact,”Nicholson said. “And it’s that way by design.”
District drawing by voting age may not necessarily be happening tomorrow. But it’s clearly in the works as a new Republican strategy to stem the tide of demographic change favorable to Democrats.
The GOP exerts complete control over district drawing in several major southern states. Experts worry that despite checks on extreme redistricting in the Midwest, Republicans could do enough damage in Georgia, Texas, Florida, and North Carolina to solidify control of the House for at least the next decade.
In February, the Brennan Center researcher Michael Li unveiled a report that detailed the implications of single-party control over redistricting in those states. This year will be the first in 50 years in which legislatures in the Sunbelt don’t need to clear their districts with the federal government, a key provision in the 1965 Voting Rights Act that was gutted by the Supreme Court in 2013.
Li predicts that the gerrymandered districts will blunt the effects of dynamic nonwhite population growth at the ballot box. Since 2010, voters of color have represented 78 percent of the increase in the nation’s voting-eligible population. By 2030, a majority of Americans 30 and under will be nonwhite.
To be sure, Democrats gerrymander too. In New York, where the party enjoys a supermajority in the House and Senate, Democrats captured 70 percent of the state’s congressional seats despite winning just 60 percent of the vote in 2020. New maps could purge five additional seats that are currently held by Republicans, skewing the numbers even more.
Still, because of their sheer numbers, Republicans are projected to come out ahead nationally if “both parties maximize their advantage in the states they control,” according to the Cook Political Report analyst David Wasserman.
Republicans are clearly feeling the heat. Now might be their best chance to hold power in key states for decades to come. Voting-age apportionment is a tactic they are preparing to deploy. Democrats should start to take notice—and prepare.
