The Redistricting Landscape, 2021–22

Brennan Center for Justice at New York University School of Law 

The Redistricting Landscape, 2021–22 By Michael C. Li PUBLISHED FEBRUARY 11, 2021

Table of ContentsABOUT THE BRENNAN CENTERFOR JUSTICEThe Brennan Center for Justice at NYU School of Law is a nonpartisan law and policy institute that works to reform, revitalize — and when necessary defend — our country’s systems of democracy and justice. The Brennan Center is dedicated to protecting the rule of law and the values of constitutional democracy. We focus on voting rights, campaign finance reform, ending mass incarceration, and preserving our liberties while also maintaining our national security. Part think tank, part advocacy group, part cutting-edge communications hub, we start with rigorous research. We craft innovative policies. And we fight for them — in Congress and the states, in the courts, and in the court of public opinion. STAY CONNECTED TO THE BRENNAN CENTERVisit our website at www.brennancenter.org© 2021. This paper is covered by the Creative Commons Attribution-NonCommercial-NoDerivs license. It may be reproduced in its entirety as long as the Brennan Center for Justice at NYU School of Law is credited, a link to the Center’s web pages is provided, and no charge is imposed. The paper may not be reproduced in part or in altered form, or if a fee is charged, without the Center’s permission. Please let the Center know if you reprint.Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3Highlights: What’s New in 2021–22? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3States to Watch . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4Factor 1: Who Will Draw the Maps? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5The 2021–22 Landscape . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5Factor 2: A More Fraught Legal Framework . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9The Supreme Court’s Green Light for Partisan Gerrymandering . . . . . . . . . . .9The Loss of Section 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9The Narrowing of Section 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10Potential Efforts to Change the Apportionment Base . . . . . . . . . . . . . . . . . . . .11State Court Wins Against Partisan Gerrymandering . . . . . . . . . . . . . . . . . . . . .11Stronger Protections Against Racial Gerrymandering . . . . . . . . . . . . . . . . . . . .12The Prospect of Federal Redistricting Reform . . . . . . . . . . . . . . . . . . . . . . . . . . .12Factor 3: Population and Demographic Changes . . . . . . . . . . . . . . . . . . . . . . .13Where Big Changes in Population Have Occurred . . . . . . . . . . . . . . . . . . . . . . .13Where There Have Been Demographic Shifts . . . . . . . . . . . . . . . . . . . . . . . . . . .14Factor 4: Potential Delays to the Redistricting Process . . . . . . . . . . . . . . . . .19Timing Challenges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .19The Risk of Special Sessions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .19Appendix: Redistricting Risk Assessments . . . . . . . . . . . . . . . . . . . . . . . . . . . .20Endnotes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .232 Brennan Center for JusticeThe Redistricting Landscape, 2021–22

3 Brennan Center for JusticeThe Redistricting Landscape, 2021–22Covid-19, however, has further upended the redistricting cycle by delaying the release of data needed by states to draw maps, and in turn delaying redistricting. This report looks at the upcoming redistricting cycle through the lens of four factorsthat will influence outcomes in each state: who controls map drawing; changes in the legal rules governing redistricting over the last decade; pressures from population and demographic shifts over the same period; and the potential impact of the Covid-19 pandemic on the 2020 Census. In each state, the confluence of these factors will determine the risk of manipulated maps or whether, conversely, the redistrict-ing process will produce maps that reflect what voters want, respond to shifts in public opinion, and protect the rights of communities of color. Expect a tale of two countries. In much of the country, newly enacted reforms and divided government will make it harder to force through partisan gerrymanders or racially discriminatory maps. In other states, however, there may be even greater room for unfair processes and results than in 2011, when the nation saw some of the most gerrymandered and racially discriminatory maps in its history. Highlights: What’s New in 2021–22?ƒPolitical changes and reforms: Single-party control of map drawing is by far the biggest predictor of redis-tricting abuses. For the next round of redistricting, the good news is that single-party control has decreased due to a combination of reforms and elections that have resulted in divided government. In total, six states have adopted redistricting reforms that will be used in the upcoming redistricting cycle, including Virginia in November 2020. Meanwhile, several other states where maps are still drawn by legislatures and that saw egre-gious gerrymandering last cycle now have divided governments. Lawmakers in these states must now compromise or forfeit their map drawing authority to the courts — where the likelihood of fair maps is much higher. The impact of these changes is especially nota-ble at the congressional level: in the upcoming cycle, Republicans will have sole control over the drawing of just 181 congressional districts, compared with 213 districts after the 2010 elections. (The exact number of seats could change slightly depending on the results of the 2020 Census.)ƒLegal changes: The legal landscape, by contrast, is more ominous this time around. Map drawing in 2021–22 will take place with a legal framework weak-ened by two major Supreme Court rulings. In 2013, the Supreme Court gutted core protections of the Voting Rights Act in Shelby County v. Holder. Then, in 2019, the Court closed the door to federal court challenges to partisan gerrymanders in Rucho v. Common Cause. But there is also hopeful news. The last decade saw new jurisprudential fronts open with wins against partisan gerrymandering in two state courts, suggesting that state constitutions could emerge as an alternative route to challenge gerrymandering in the 2021–22 cycle.ƒDemographic and population changes: As has always been the case, population changes will be a crucial driver of redistricting abuses. The South in particular has grown rapidly and become both much more racially and politically diverse since 2011, threatening the long-stand-ing political status quo. Similarly, some regions have seen population decreases or significant demographic changes and could also see battles over adjustments to maps. But while some parts of the country experienced major changes, large parts of the country were remark-ably stable both in terms of demographics and popula-tion change, lowering the redistricting stakes and in turn reducing the gerrymandering risk. ƒCensus delays: As with so many areas of American life, Covid-19 has also roiled the next round of redis-tricting, creating uncertainty about when states will Overview Under the best of circumstances, the redrawing of legislative and congressional districts every 10 years is a fraught and abuse-prone process. But the next round of redistricting in 2021 and 2022 will be the most challenging in recent history. Even before the Covid-19 pandemic, intense fights over representation and fair maps were all but certain in many states due to rapid demographic change and a weakening of the legal framework governing redistricting. Invariably, communities of color would bear much of the brunt, facing outright discrimination in some places and being used as a convenient tool for achieving unfair partisan advantage in others.4 Brennan Center for JusticeThe Redistricting Landscape, 2021–22States to WatchLegend Notes Highest-risk states: These states combine single-party political control of the redistricting process with extreme-ly fast growth and demographic change. Additionally, for the first time in 50 years, they will not be required to obtain preapproval to use maps under Section 5 of the Voting Rights Act.Other high-risk states: These states, though they are not growing or changing demographically as fast as the highest-risk states, were formerly covered by Sec-tion 5 of the Voting Rights Act and will also draw maps this decade under single-party control.get the data they need to draw maps. Data delivery being delayed until next summer (as the Census Bureau at one point suggested) would cascade into delays to the map drawing process in many states — in some cases significantly. A number of states, including Iowa and Maine, would have to make constitutional or legal changes to avoid the process defaulting to the courts. FIGURE 1Risk for Gerrymandering or Unfair Maps in 2021–22Very highHighImprovedOther states to watchStates like Texas would be required to draw maps in a special session, where there typically are far fewer procedural protections and oversight opportunities. And Virginia would likely not have new maps in place in time for its 2021 legislative elections.Likely improved states: These states adopted redis-tricting reforms in the last decade (though reforms could be challenged or ignored in some places) or saw political changes that mean map drawing will no longer be under a single party’s control.Other states to watch: These states saw significant nonwhite population growth in certain regions in the last decade and could see fights over increased repre-sentation demands for growing communities of color.5 Brennan Center for JusticeThe Redistricting Landscape, 2021–22Virginia, for example, an insider deal resulted in the Democratic-controlled state senate opting not to block Republicans’ racially gerrymandered map for the state house in exchange for Democrats being able to draw the state senate map.The 2021–22 LandscapeFor the 2021–22 redistricting cycle, both reforms and a decrease in single-party control of the map drawing process have significantly improved the prospects for fairer maps.ReformsSince maps were last redrawn, voters in six states — Colo-rado, Michigan, New York, Ohio, Utah, and Virginia — have passed redistricting reforms that will take effect this decade. In every instance, reforms won at the ballot box with bipartisan margins, carrying both red counties and blue counties.3The Colorado and Michigan reforms were particularly robust, creating strong independent commissions to take over map drawing. Michigan’s reforms are especially note-worthy because the state’s independent commission will have a chance to redraw maps that currently are among the country’s most gerrymandered. New York, Ohio, Utah, and Virginia adopted other vari-ants of reforms that, while falling short of creating inde-pendent commissions, also promise better balance in the next round of redistricting. These reforms include a bipar-tisan commission in Virginia and advisory commissions in New York and Utah that will draw maps for legislative consideration. But there were also misses on the reform front. When 2020 began, it looked like voters would have the chance to vote on reforms in several other states, including ballot initiatives in Nebraska, Oklahoma, and Oregon. Unfortu-nately, the Covid-19 pandemic upended efforts to get measures on the ballot. Meanwhile, reformers in Missouri suffered a loss when reforms approved by voters in 2018 were gutted by a subsequent constitutional amendment proposed by Republican lawmakers and approved by By contrast, maps drawn by commissions — even imper-fect ones — have tended to be both more responsive to voter preferences and better at protecting communities of color. Maps drawn by divided governments and courts have also done much better at avoiding excessive parti-sanship and racial discrimination.1The 2011 redistricting cycle vividly illustrated the impact of single-party control. After the 2010 Tea Party elections, Republicans had full control of the redistricting process in states like Florida, Michigan, North Carolina, Ohio, Pennsylvania, and Wisconsin, which have large numbers of congressional districts. With this control, Republicans were able to lock in a 10-to-3 advantage for congressional seats in North Carolina and a 13-to-5 advantage in Penn-sylvania, even though voters in both states tend to split their votes almost evenly. Nationwide, the Brennan Center found that in 2016, gerrymandering in Michigan, Ohio, and Pennsylvania alone gave Republicans 16 to 17 more seats in the U.S. House of Representatives than would have been expected with unbiased maps.2 In the South, this gerrymandering had a racial dimension. Democrats, likewise, gerrymandered maps in states they controlled. In Maryland, for example, they radically redrew the congressional map to gain an additional seat. But because Republicans dominated in the 2010 election, Democrats controlled far fewer states than Republicans. And where they were in charge, Democrats were gener-ally somewhat less aggressive than Republicans in their gerrymandering efforts. One reason for this dynamic was that in states like Illinois, internal party politics led to pressure on Democrats to concentrate nonwhite voters in districts that elected candidates preferred by commu-nities of color. As a result, they had fewer opportunities to make white-majority districts more politically compet-itive by strategically adding in Democratic-leaning people of color.By contrast, states like California and Arizona that used independent commissions to draw their maps — or like Minnesota, whose maps were drawn by a court — had maps with much less partisan bias and that were far more responsive to shifts in voter sentiment. States with divided governments also generally saw much less biased maps. There were notable exceptions, however: in Factor 1: Who Will Draw the Maps?By far, the biggest predictor of whether a state will draw fair maps is whether a single party controls the map drawing process. Single-party control, whether by Democrats or Republicans, creates an almost irresistible temptation for the party in charge to make decisions behind closed doors with predetermined partisan or other discriminatory objectives driving the outcome. And with better data and map drawing technology increasingly available, the danger posed by single-party control has only increased since maps were last redrawn in 2011. 6 Brennan Center for JusticeThe Redistricting Landscape, 2021–22Changes in Political ControlThe prospects for fairer maps have also improved in several states because, unlike last decade, they will no longer be drawn under single-party control. Although divided government does not prevent insider deals to protect incumbents, it does give each party a veto on maps, providing a strong check on maps that discriminate wildly against one party. If the parties do not compromise, the deadlock will send map drawing to the courts.States that will have divided governments for the next round of redistricting notably include Louisiana, Pennsyl-vania, and Wisconsin, where Republicans drew gerryman-dered or racially discriminatory maps in 2011, but where the election of Democratic governors with veto power voters in 2020. As a result, Missouri will return to using a variant of a deadlock- and abuse-prone system for map drawing in 2021–22. And even in states that passed reforms, challenges remain. Republicans in Michigan have brought several (thus far unsuccessful) legal challenges to its new system and may yet attempt to undermine it in other ways. It also remains to be seen whether the Democrats who control government in New York and the Republicans who control government in Utah will respect or ignore the nonbinding maps drawn by advisory commissions, especially in light of likely pressures in both national parties to eke out additional congressional seats wher-ever possible. FIGURE 2States Where Redistricting Will Be Done by Commissions orDivided Governments This DecadeAlaskan/a*CommissionArizonaIndependent commissionIndependent commissionCaliforniaIndependent commissionIndependent commissionColoradoIndependent commissionIndependent commissionHawaiiCommissionCommissionIdahoCommissionCommissionIowaAdvisory commissionAdvisory commissionLouisianaDivided governmentDivided governmentMaineAdvisory commissionAdvisory commissionMichiganIndependent commissionIndependent commissionMinnesotaDivided governmentDivided governmentMissourin/aCommissionMontanaCommissionCommissionNew JerseyCommissionCommissionNew YorkAdvisory commissionAdvisory commissionPennsylvaniaDivided governmentCommissionUtahAdvisory commissionAdvisory commissionVermontn/a*Divided governmentVirginiaAdvisory commissionAdvisory commissionWashingtonCommissionCommissionWisconsinDivided governmentDivided governmentSTATECONGRESSIONAL REDISTRICTINGLEGISLATIVE REDISTRICTING*Alaska and Vermont are expected to continue to each have only one congressional district after reapportionment.7 Brennan Center for JusticeThe Redistricting Landscape, 2021–22states where Democrats fell short in efforts to win legis-lative chambers in the 2020 elections. By contrast, since 2011, Democrats have gained a political trifecta only in Nevada. (They also won trifectas in New York and Virginia, but reforms in those states mean that advisory commis-sions will have the first shot at crafting new maps. Addi-tionally, in Virginia, rejection of the commission’s maps would send map drawing to the courts rather than give the Democratic legislature free rein to enact its own plan.)now balances out legislatures that remain Republican. On the other hand, single-party control of the redis-tricting process will continue in much of the country. All told, Republicans will have sole control over drawing congressional maps in 18 states and legislative maps in 20 states, while Democrats will have sole control of congressional maps in 7 states and legislative maps in 9 states. These single-party-controlled states include Flor-ida, Georgia, North Carolina, and Texas, four battleground FIGURE 3States with Single-Party Control of Redistricting in 2021–22AlabamaGOPGOPArkansasGOPGOPConnecticutDemDemDelaware*n/aDemFloridaGOPGOPGeorgiaGOPGOPIllinoisDemDemIndianaGOPGOPKansas†GOPGOPKentucky‡GOPGOPMaryland††DemDemMassachusettsDemDemMississippiGOPGOPMissouriGOPn/aNebraska#GOPGOPNevadaDemDemNew HampshireGOPGOPNew MexicoDemDemNorth Carolina§GOPGOPNorth Dakota*n/aGOPOhio¶GOPGOPOklahomaGOPGOPOregonDemDemRhode Island*n/aDemSouth CarolinaGOPGOPSouth Dakota*n/aGOPTennesseeGOPGOPTexasGOPGOPWest VirginiaGOPGOPWyoming*n/aGOPSTATECONGRESSIONAL REDISTRICTINGLEGISLATIVE REDISTRICTING*Delaware, North Dakota, South Dakota, and Wyoming are expected to continue to each have one congressional districtafter reapportionment, while Rhode Island is expected to lose one of its two seats.†Republicans have a veto-proof majority.‡Veto override requires only a simple majority.††Democrats have a veto-proof majority for congressional redistricting. Governor cannot veto legislative plans.#Nebraska’s legislators are elected on a nonpartisan basis, but Republicans have effective control.§Governor cannot veto maps.¶Republicans will control redistricting, but reforms will help limit abuses.8 Brennan Center for JusticeThe Redistricting Landscape, 2021–22FIGURE 3States with Single-Party Control of Redistricting in 2021–22AlabamaGOPGOPArkansasGOPGOPConnecticutDemDemDelaware*n/aDemFloridaGOPGOPGeorgiaGOPGOPIllinoisDemDemIndianaGOPGOPKansas†GOPGOPKentucky‡GOPGOPMaryland††DemDemMassachusettsDemDemMississippiGOPGOPMissouriGOPGOPNebraska#GOPGOPNevadaDemDemNew HampshireGOPGOPNew MexicoDemDemNorth Carolina§GOPGOPNorth Dakota*n/aGOPOhio¶GOPGOPOklahomaGOPGOPOregonDemDemRhode Island*n/aDemSouth CarolinaGOPGOPSouth Dakota*n/aGOPTennesseeGOPGOPTexasGOPGOPWest VirginiaGOPGOPWyoming*n/aGOPSTATECONGRESSIONAL REDISTRICTINGLEGISLATIVE REDISTRICTING*Delaware, North Dakota, South Dakota, and Wyoming are expected to continue to each have one congressional districtafter reapportionment, while Rhode Island is expected to lose one of its two seats.†Republicans have a veto-proof majority.‡Veto override requires only a simple majority.††Democrats have a veto-proof majority for congressional redistricting. Governor cannot veto legislative plans.#Nebraska’s legislators are elected on a nonpartisan basis, but Republicans have effective control.§Governor cannot veto maps.¶Republicans will control redistricting, but reforms will help limit abuses.FIGURE 3States with Single-Party Control of Redistricting in 2021–22AlabamaGOPGOPArkansasGOPGOPConnecticutDemDemDelaware*n/aDemFloridaGOPGOPGeorgiaGOPGOPIllinoisDemDemIndianaGOPGOPKansas†GOPGOPKentucky‡GOPGOPMaryland††DemDemMassachusettsDemDemMississippiGOPGOPMissouriGOPGOPNebraskaGOPGOPNevadaDemDemNew HampshireGOPGOPNew MexicoDemDemNorth CarolinaGOPGOPNorth Dakota*n/aGOPOhio¶GOPGOPOklahomaGOPGOPOregonDemDemRhode Island*n/aDemSouth CarolinaGOPGOPSouth Dakota*n/aGOPTennesseeGOPGOPTexasGOPGOPWest VirginiaGOPGOPWyoming*n/aGOPSTATECONGRESSIONAL REDISTRICTINGLEGISLATIVE REDISTRICTING*Delaware, North Dakota, South Dakota, and Wyoming are expected to continue to each have one congressional district after reapportionment, while Rhode Island is expected to lose one of its two seats.†Republicans have a veto-proof majority.‡Veto override requires only a simple majority.††Democrats have a veto-proof majority for congressional redistricting. Governor cannot veto legislative plans.¶Republicans will control redistricting, but reforms will limit abuses.FIGURE 3States with Single-Party Control of Redistricting in 2021–22AlabamaGOPGOPArkansasGOPGOPConnecticutDemDemDelaware*n/aDemFloridaGOPGOPGeorgiaGOPGOPIllinoisDemDemIndianaGOPGOPKansas†GOPGOPKentucky‡GOPGOPMaryland††DemDemMassachusettsDemDemMississippiGOPGOPMissouriGOPGOPNebraskaGOPGOPNevadaDemDemNew HampshireGOPGOPNew MexicoDemDemNorth CarolinaGOPGOPNorth Dakota*n/aGOPOhio¶GOPGOPOklahomaGOPGOPOregonDemDemRhode Island*n/aDemSouth CarolinaGOPGOPSouth Dakota*n/aGOPTennesseeGOPGOPTexasGOPGOPWest VirginiaGOPGOPWyoming*n/aGOPSTATECONGRESSIONAL REDISTRICTINGLEGISLATIVE REDISTRICTING*Delaware, North Dakota, South Dakota, and Wyoming are expected to continue to each have one congressional district after reapportionment, while Rhode Island is expected to lose one of its two seats.†Republicans have a veto-proof majority.‡Veto override requires only a simple majority.††Democrats have a veto-proof majority for congressional redistricting. Governor cannot veto legislative plans.¶Republicans will control redistricting, but reforms will limit abuses.Continued 9 Brennan Center for JusticeThe Redistricting Landscape, 2021–22let map drawers pick voters with extreme precision and create maps that perform as designed, even in wave elections.The Loss of Section 5Communities of color will face a difficult redistricting cycle because, for the first time in five decades of map drawing, they will lack the protection of Section 5 of the Voting Rights Act — unless Congress acts to restore it before map drawing happens. Section 5 mandated that jurisdictions with a history of racial discrimination in voting obtain preclearance for any changes to redistricting plans or other voting rules — either from the U.S. Department of Justice (DOJ) or a federal court in Washington, DC.6 When maps were last redrawn in 2011, 16 states, mostly in the South, were required to submit new maps to the federal government for approval. Section 5 was extremely effective at protecting commu-nities of color during the redistricting process. To win approval for any changes, states had to show that they did not intend to discriminate and that maps would not result in retrogression — that is, that the changes would not make it harder for racial and ethnic minorities to elect their preferred candidates, regardless of the map drawers’ intent. Critically, the burden of proof was on the states: if preclearance was denied, states would be forced to start over or to use a court-drawn interim map, as happened in Texas in 2012. Moreover, fear of a preclearance denial often deterred states from drawing maps that hurt communities of color, and even helped spur them to create new electoral opportunities for minority commu-nities to avoid charges of discrimination or retrogression.But in its 2013 Shelby County v. Holder decision, the Supreme Court ruled that the formula used to determine the parts of the country covered by Section 5 was out of date, despite a wealth of evidence that it still played a vital role in stopping racial discrimination in voting.7 While the Court held that Congress could enact a new, updated coverage formula, efforts to do so have been stalled in the Republican-controlled U.S. Senate. Without Section 5, some states could be tempted in the The Supreme Court’s Green Light for Partisan GerrymanderingOne of the most important changes to the legal landscape since the last redistricting cycle was the Supreme Court’s ruling that federal courts could not police partisan gerrymanders. Before 2016, federal courts had struggled unsuccess-fully for decades to come up with a judicially workable standard to use when gauging whether a map had been drawn with too much partisan consideration.4 By 2011, many map drawers assumed that the inability to find a workable standard meant that there were effectively no limits, helping to fuel some of the most aggressive gerry-mandering in the nation’s history when maps were redrawn that year.Then in 2016, a seeming breakthrough happened, with a number of trial courts striking down several of the last decade’s most aggressive gerrymanders in quick succes-sion. However, hopes for a constitutional check on gerry-mandering were short-lived: before any maps could be redrawn, the Supreme Court’s 2019 opinion in Rucho v. Common Cause reversed the trial courts and held that although partisan gerrymandering is harmful and anti-democratic, it is a political issue that federal courts lack the authority to address.5With federal courts now definitively out of the picture for the 2021–22 redistricting cycle, extreme gerrymanders could further proliferate in states with single-party control of the process (see Factor 1). The risk could be especially great in states where major demographic or political shifts also threaten the political status quo (see Factor 3). But even some demographically and politically stable states could see gerrymandering of congressional districts, given the high-stakes battle for control of the U.S. House of Representatives. A burst of partisan gerrymandering would be a replay of what happened in 2011, when the Supreme Court’s deadlock on partisan gerrymanders emboldened map drawers. The consequences could be worse this time, however, because map drawers will have access to more powerful mapping tools and more granular data about voter behavior and propensities. Together, these tools will Factor 2: A More Fraught Legal FrameworkIf the political landscape looks somewhat better than the last time maps were drawn, the legal landscape, by contrast, has worsened (although there are some bright spots, primarily at the state level). Communities of color in particular will enter the next cycle of map drawing with fewer protections than at any time since the 1960s. 10 Brennan Center for JusticeThe Redistricting Landscape, 2021–22stalled in the Senate. However, with Democrats taking control of the chamber, the bill could get new life in the 117th Congress — possibly in time to affect the upcoming redistricting cycle. The Narrowing of Section 2Compounding the loss of Section 5, the Supreme Court has gradually undermined Section 2 of the Voting Rights Act, another provision that protected communities of color.For decades, Section 2 helped communities of color overcome a legacy of discrimination in voting.8 In contrast to Section 5, which applied only in states with a history of discrimination, Section 2 applies nationwide and allows communities of color to argue for the creation of additional electorally favorable districts as long as certain preconditions are met. Section 2 had an especially great impact during the 1990 redistricting round, when vigor-upcoming round of redistricting to draw maps that split up voters of color in ways that make it harder for them to elect their preferred candidates. The absence of Section 5 will also increase the risk of discriminatory maps by letting states potentially game the timing of redistricting. In the past, states had an incentive to complete redistrict-ing expeditiously to allow enough time for the back-and-forth of preclearance review. Now, states previously subject to Section 5 may choose to delay completing redistricting to limit time for litigating any challenges brought under other laws. That risk could be even higher this cycle, given that likely delays in the delivery of census data will push back the redistricting process and cause map drawing in many states to take place in special sessions (see Factor 4).But these dire outcomes are not yet settled, as Congress can still act to restore Section 5. In 2019, the House passed the Voting Rights Advancement Act (H.R. 4), adopting a new Section 5 formula that would place 11 states — Alabama, California, Florida, Georgia, Louisiana, Missis-sippi, New York, North Carolina, South Carolina, Texas, and Virginia — under preclearance coverage. The bill FIGURE 4States Covered by Section 5 of the Voting Rights Act Prior toJune 2013Whole state coveredParts of state covered