Redistricting Battles Pose New Obstacles For Democrats

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Both parties are preparing for a major legal fight over redistricting

State legislatures and nonpartisan commissions across the country, the battle over redrawing political maps is just beginning. Both Republicans and Democrats are already preparing for major court battles.

Republicans and Democrats have been laying the groundwork for a complex, 50-state legal battle over redistricting for months. Both parties are preparing for a new legal climate characterized by hostile federal courts to claims of unconstitutional partisan gerrymandering and inconsistent state court rulings. Due to pandemic-related delays, it will all unfold in a compressed timeframe.

  

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This presents a challenging landscape for Democrats, who have previously won court victories by proving Republicans deliberately used maps to disenfranchise Democratic voters. Despite plans for a more aggressive strategy, some predict fewer dramatic court interventions.

“There will be a lot of litigation, but in a lot of ways the tools will be less sharp than they used to be,” said Michael Li of the Brennan Center for Social Justice in New York City.

Democrats filed preemptive lawsuits in April, long before the census’s detailed population data was released. This data is used to redraw congressional boundaries, statehouses, and school districts around the country. The most important lawsuits have yet to be filed and are not likely to be filed until states begin to produce maps next year.

Redistricting maps drew by Republicans in four states were eventually tossed out by courts following the 2010 cycle. The courts determined that Republicans improperly gerrymandered voting districts to favor their candidates. Florida, North Carolina, Pennsylvania, and Texas had their maps redrawn to give Democrats a better chance of winning seats in Congress. Currently, the GOP controls the House of Representatives without that intervention.

In court, though, experts are skeptical if such dramatic reversals will take place. Conservatives on the Supreme Court have shut down one avenue for legal challenges, ruling that courts may no longer challenge partisan gerrymandering. Thus, experts said, courts might be less inclined to intervene.

In order to change this dynamic, Congress must pass the For the People Act, which, among other things, bans partisan gerrymandering. A Republican filibuster is blocking the measure in the Senate, where Democratic senators are unwilling to change the rule to eliminate the 60-vote threshold.

For Democrats, whose prospects for litigation are particularly adverse, the higher odds are particularly ominous. Lines are drawn by Democrats in states with 75 seats, while Republicans control the process in states with 187 seats.

Democrats “have a lot more incentive to litigate because they would have a lot more to gain,” said Jason Torchinsky, general counsel to the National Republican Redistricting Trust.

Kelly Ward Burton, executive director of the National Democratic Redistricting Committee, which coordinates litigation for Democrats, agreed that Democrats will be aggressive. “We fully anticipate being in court in the states where Republicans control the redistricting process and where they intend to gerrymander,” she said.

The Supreme Court’s 2019 ruling that federal courts cannot overturn partisan gerrymandering does not concern Burton since racial gerrymandering remains illegal under federal law. The majority of Black, Latino, and Asian American voters are Democratic, whereas white voters are more likely to be Republican, in the top states for Democratic concern, Florida, Georgia, North Carolina, and Texas.

This, though, is a two-edged sword, Li cautioned. Democrats are able to argue that Republican gerrymanders are racial, rather than partisan, but GOP lawyers can just tell judges they followed the Supreme Court’s direction and looked only at party, not race. “The Supreme Court has created this weird binary — if it’s on the racial side, it’s bad, but if it’s on the partisan side, it’s okay,” he said.

Taking advantage of this dynamic, Republicans in the North Carolina state legislature have already formally sworn they will not use any racial data in drawing district lines since the Democratic governor of the state can’t veto any redistricting bill.

Tom Saenz, president of the Mexican-American Legal Defense and Education Fund, believes there will still be plenty of successful racial gerrymandering cases, especially in light of the recent census data showing large increases in voters of color. Voting Rights Act still requires the creation of majority-minority districts in places where a compact legislative district could be drawn this way, and Saenz says there are more of those places than ever before as racial and ethnic groups continue to grow.

Democrats will not always benefit from it – Saenz notes that his group has battled with white Democratic groups to create districts with a majority of Latino votes in some states. Additionally, he noted that redistricting timelines this decade are tight. Due to COVID-19 and legal disputes over how the Trump administration conducted the survey, the Census data used to draw the maps was released six months late. Consequently, though the 2022 elections are only a few months away from filing deadlines for state primaries, the courts may not have much time to act. It takes months or even years for redistricting cases to be decided.

“We have to engage in triage,” Saenz said. “In some cases, we may have to allow an election to go by with bad lines.”

Even though several lawsuits have already been filed, these are mostly first salvos by those seeking to gain an advantage before serious negotiations start. Democrat lawsuits in Louisiana, Minnesota, and Pennsylvania argue that deadlock is inevitable between Republican-controlled legislatures and Democratic governors, so courts need to get ready to draw lines. Republican lawmakers are seeking public records to challenge the Census’ calculations of occupants of college dormitories and other large residential areas.

In spite of the fact that federal courts will no longer be able to strike down gerrymanders due to partisanship, state courts will remain free to do so. Legal analysts say it may depend on the party of state judges. “It depends on who your state judges are,” said Edward Foley, a law professor at The Ohio State University.

State supreme courts are largely controlled by Republicans in the Southern states where redistricting legal battles will be most fierce. Previously, Florida was Democratic and overturned Republican redistricting plans, it is now largely Republican. North Carolina’s once solidly Democratic electorate is now evenly divided.

“Absent congressional action it’s going to be a decade of extreme gerrymandering,” Foley said. “I doubt that you’ll get much judicial relief.”