The redistricting legal logjam won’t break till long after Election Day

▶ ▶ State redistricting plans are still being challenged across the country ▶ ▶ “You might want to say, ‘Let’s both agree to a fair process’▶”

On Dec. 2 the Florida Supreme Court approved a plan to replace the congressional district maps used in the 2012 and 2014 elections, which the court’s 5 to 2 majority concluded were unfairly drawn because of a “conspiracy” among Republican operatives. The new boundaries could help Democrats, who hold 10 of the state’s 27 seats, pick up two more in 2016. The ruling, the court wrote, “should bring much needed finality to litigation concerning this state’s congressional redistricting that has now spanned nearly four years in state courts.”

Courts typically try to expedite election-related legal challenges, because the damage is difficult to undo once ballots are cast. But litigation in Arizona, Maryland, North Carolina, Texas, and Virginia may drag on beyond next year’s elections, with maps still up in the air until the 2018 elections or even those in 2020—the last before the decennial redistricting that follows every national census. “This is the first time since the 1960s that there’s been so much litigation this late into a decade,” says Jeffrey Wice, a former Democratic National Committee lawyer who’s now a research fellow at SUNY Buffalo Law School.

State legislatures control redistricting in most states. Whichever party holds the majority during the session following the national census has an advantage when it comes to setting boundaries, which are supposed to track changes in population. The same night Republicans took back the U.S. House in 2010, they seized 20 state legislative chambers from Democrats. Among them were both the state House and Senate in Alabama, where Democrats had ruled since Reconstruction.

The Republican victories made this decade’s fights particularly contentious. Lawsuits were filed in 42 states challenging borders drawn after the 2010 census, and courts agreed to review boundaries in 22 of them. Many of the suits were filed by groups claiming the new maps favored the GOP by packing minority voters into a handful of districts, creating a small number that are overwhelmingly Democratic and a larger number that are disproportionately white and comfortably Republican, in violation of the Voting Rights Act of 1965.

“This legislature went all out, and they wrote the worst redistricting plan we’ve seen since the 19th century,” says the Reverend William Barber, president of North Carolina’s NAACP chapter, who’s suing to remake the map in that state. The current boundaries, which have helped Republicans win four North Carolina congressional seats previously held by Democrats since they went into effect, have been upheld by multiple courts. “I’m not sure why they continue to press the issue,” says state Senator Bob Rucho, who oversaw the change. “We followed the letter of the law.”

Edward Blum, a visiting fellow at the American Enterprise Institute, says there would be even more litigation if not for the U. S. Supreme Court’s 2013 decision in the Shelby County v. Holder case, which struck down a section of the Voting Rights Act that restricted states with histories of voter discrimination from making changes to district maps or election law without prior approval from the U. S. Department of Justice. The decision puts the onus on plaintiffs to sue, raising the cost of lodging a challenge. “That law will no longer provide a source of mischief that we have had in the past,” says Blum, an architect of the Shelby County case.

On Dec. 8 the high court heard arguments in a Texas case in which conservatives challenged the practice of apportioning state legislative districts based on the distribution of the general population, rather than considering only eligible voters. A decision for the plaintiffs could reshape the meaning of “one person, one vote” in congressional districts, too. If that happens, “the court will be inviting an avalanche of redistricting challenges unlike anything we’ve seen before,” says Janai Nelson, associate director- counsel of the NAACP

Both parties are looking to capture control of redistricting after the 2020 elections 51.3%

Black and Hispanic voting age population