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’▶”

Bloomberg Businessweek (North America) - - Contents -

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

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