Democrats and Republicans have been working for months to prepare for a complicated, 50-state legal fight over redistricting, a once-in-a-decade process. Both sides are ready for a new legal climate, where the federal courts will be hostile to any claims of unconstitutional or partisan gerrymandering. State courts could also make a variety of rulings. It will all happen in a compressed timeframe due to pandemic-related delays.
Experts believe that this creates a difficult environment for Democrats who in the past have won significant court victories by showing Republicans used maps to disenfranchise Democratic voters. Many experts predict far fewer court interventions, despite plans to be more aggressive.
Michael Li, of the Brennan Center for Social Justice, New York City said that while there will be litigation, the tools used in many ways will be less sharp than before.
Democrats began filing preemptive lawsuits in April, well ahead of last week's release of the Census' detailed population data used to draw the lines for Congress, statehouses and school districts around the country. The most important lawsuits will not be filed until maps are produced by states over the next few weeks.
Four maps were drawn by Republicans in the four states following the 2010 redistricting process. The courts ruled that Republicans had improperly used voter race and party affiliations in order to draw lines favoring their candidates. This is known as gerrymandering. To give Democrats a better chance at winning congressional seats, the judges redrew maps in Florida, North Carolina and Pennsylvania. The GOP would still control the House of Representatives without that intervention.
Legal experts doubt that there will be any such drastic reversals in court. The experts point out that the conservative majority of the U.S. Supreme Court has already closed off one avenue for legal challenges by ruling that federal courts have no authority to strike down partisan gerrymanders. Experts said that this makes it less likely for courts to intervene.
If Congress passes the ambitious For the People Act (an election bill that would outlaw partisan-gerrymandering), the dynamic of the situation could shift. The legislation is still stuck in the Senate. Democrats are reluctant to alter rules to remove the 60 vote threshold required to defeat a Republican filibuster that blocked the measure.
Democrats are especially at risk because they start the process at a disadvantage due to longer odds of litigation. They have line-drawing control in states with 75 House members, while the GOP has the process in states that have 187.
Jason Torchinsky (general counsel to the National Republican Redistricting Trust), stated that Democrats have "a lot more incentive" to litigate as they would have more to lose.
Kelly Ward Burton, executive Director of the National Democratic Redistricting Committee which coordinates litigation for the party, said that Democrats will be aggressive. She said, "We fully anticipate being at court in states where Republicans control redistricting and where they intend gerrymander."
Li cautioned that this is a double-edged knife. Democrats may argue that Republican gerrymanders were racial rather than partisan. But GOP lawyers can simply tell judges that they are following the Supreme Court's lead and only looking at race. He said, "The Supreme Court has made a strange binary. If it's on one side, it is bad. But if its on the other side, then it's fine."
Republicans in North Carolina's legislature, who are in complete control of the process since the state's Democratic governor can't veto a redistricting law, have already taken advantage by declaring that they will not use racial data when drawing lines.
Tom Saenz, president and CEO of the Mexican American Legal Defense and Educational Fund, stated that he expects to see many successful racial-gerrymandering cases due to the fact that the population of voters of color has increased so much in recent census data. Saenz stated that the Voting Rights Act requires the creation and maintenance of majority-minority areas in areas where a compact legislative area could be drawn. This is due to the increased presence of many racial or ethnic groups.
This won't always be a good thing for Democrats. Saenz points out that his group has fought white Democrats in California over the creation majority Latino districts. He also pointed out another problem: the strict timelines for redistricting in this decade. Due to COVID-19, legal disputes and the Trump administration's conduct of the survey, the Census data used in drawing the maps was not released until six months later. Courts may have only a few weeks before 2022 elections officially kick off. This means that deadlines for filing to run in the state primaries and other legal issues will be met. Redistricting cases can take several months, if not years to resolve.
Saenz stated, "We must engage in triage." "In certain cases, we might have to let an election go ahead with bad lines."
Although several lawsuits have been filed, these are primarily opening salvos to gain an advantage before line-drawing starts in earnest. In Louisiana, Minnesota, and Pennsylvania, Democrats are suing to claim that deadlock between GOP-controlled legislatures in those states and Democratic governors is inevitable. Courts need to be ready to draw the lines. Republicans are filing public records requests in an attempt to challenge how the Census calculates the number of people who live in college dorms or other large residential areas.
Still, the only significant litigation so far has come in Illinois, where the Democratic-controlled state legislature redrew its own state maps without waiting for the Census data so as not to miss a legal deadline and have redistricting power handed to the courts. Republicans and civil rights groups are suing to change those maps.
Federal courts won't be able strike down gerrymanders because of partisanship. However, state courts can. Legal analysts believe that the willingness of state judges in this area may be dependent on their party. Edward Foley, a law professor from The Ohio State University, said that it all depends on the state judges.
The majority of the South's state supreme courts, where redistricting legal disputes are most likely to be heated, are controlled by Republicans. Florida's supreme court was Democratic during the past decade. It overturned the GOP redistricting plan, but now it is majority Republican. North Carolina's once strong Democratic party is now more evenly divided.
Foley stated that "absent congressional action, it's going be a decade-long period of extreme gerrymandering." "I don't think you'll get much judicial assistance."
This story incorrectly names the Mexican American Legal Defense and Educational Fund. It is not the Mexican American Legal Defense and Education Fund.