A decade ago, North Carolina Republicans redrew their legislative districts to help their party in a way that a federal court ruled illegally deprived Black voters of their right to political representation. A state court later struck down Republican-drawn maps as based on pure partisanship.
So, as the GOP-controlled Legislature embarks this year on its latest round of redistricting, it has pledged not to use race or partisan data to draw the political lines. Still, the maps Republicans are proposing would tilt heavily toward their party. Several publicly released congressional maps dilute Democratic votes by splitting the state’s biggest city, Charlotte – also its largest African American population center – into three or four U.S. House districts and giving the GOP at least a 10-4 advantage in a state that Donald Trump narrowly won last year.
As the once-a-decade redistricting process kicks into high gear, North Carolina is one of at least three states where Republicans say they are drawing maps without looking at racial and party data. But those maps still happen to strongly favor the GOP.
Democrats and civil rights groups are incredulous, noting that veteran lawmakers don’t need a spreadsheet to know where voters of various races and different parties live in their state. Plus, under certain scenarios, the Voting Rights Act requires the drawing of districts where the majority of voters are racial or ethnic minorities.
“This is the first redistricting round I’ve ever heard of this,” said Thomas Saenz, president of the Mexican American Legal Defense and Educational Fund, which is suing Texas Republicans over maps that the GOP said it drew without looking at racial data. “I suspect they’re trying to set up a defense for litigation. Because they know the race data – they know where the Black community lives. They know where the Latino community lives.”
An independent redistricting commission’s draft maps violate the Voting Rights Act, Michigan Civil Rights Department Executive Director John Johnson Jr. said during a Wednesday hearing where most speakers said the proposals don’t give Detroit fair representation.
The proposed maps for the state House, state Senate and U.S. House fail to preserve the ability for minority voters to have a voice in government, argued Johnson, who is a member of Gov. Gretchen Whitmer’s cabinet.
“They dilute minority-majority districts and strip the ability for a minority voter to elect legislative representatives who reflect their community and affect any meaningful opportunity to impact public policy and lawmaking,” he said.
I have written this post for the State and Local Government Law Blog. A taste:
But the same issue may resurface, with a more conservative Supreme Court majority, as to the power of state courts to apply state constitutions in reining in gerrymandering of congressional districts. We can expect the North Carolina supreme court—and possibility the Pennsylvania Supreme Court—to give close scrutiny to any maps that emerge out of any political process. Both states feature the same political configuration: a Republican-dominated legislature, Democratic-majority state Supreme Court, and Democratic governor. In North Carolina, however, state law allows the state legislature to pass a plan without the governor’s consideration, so it is here where we are most likely to see a partisan gerrymander of political districts emerge out of the political process. (Wisconsin has a similar consideration, except it has a Republican-majority supreme court.)
If, as expected, one or more of these state supreme courts rein in partisan gerrymandering of congressional districts by applying state constitutional protections for free and fair elections against the desires of the state legislature, the Article I, section 4 issue will come to the fore again. Known as the “independent state legislature” theory, it has implications far beyond the question of redistricting, as I detail in a new paper, “Identifying and Minimizing the Risk of Election Subversion and Stolen Elections in the Contemporary United States.”
But focusing on redistricting, the independent state legislature theory may well enmesh federal courts once again in the question of partisan gerrymandering, albeit it in an orthogonal way. State supreme courts will strike partisan gerrymanders of congressional maps, and Republicans will complain in federal court about state supreme court decisions limiting partisan gerrymandering of congressional districts. They will ask federal courts to hold that state supreme courts exceeded their power.
Russell Berman for The Atlantic:
To rid the country of partisan gerrymandering, Democrats for years joined with election reformers to take the responsibility for redistricting away from politicians and hand it to independent, nonpartisan commissions. The effort did not begin as an entirely altruistic project; both parties gerrymandered where they could, but Democrats had more to gain by scrapping the practice. They won the argument in a number of places: Voters in states including California, Colorado, Arizona, Michigan, and Virginia have approved redistricting commissions over the past 15 years, protecting more than one in five congressional seats from the threat of extreme gerrymandering.
Republicans, to a large degree, declined to go along. They refused to cede control of the redistricting process in the biggest red states (such as Texas) and fought commissions that could have cost them seats (Arizona) all the way to the Supreme Court. In Congress this year, they blocked legislation that would have created nonpartisan commissions across the country. The GOP’s reward for its defense of gerrymandering is a national map tilted further in its favor than it would have been if the Democratic push for independent commissions had flopped on its face.
Announcement via email:
The Princeton Gerrymandering Project and Electoral Innovation Lab have announced the publication of A Judge’s Guide to Redistricting. This Guide is designed to help state court judges handle inevitable litigation during this redistricting cycle, by providing a survey and analysis of state court decisions addressing redistricting from across the nation. The Guide is designed to assist in ensuring that the maps drawn comply with law and, most importantly, protect a voter’s right to have their voice heard, including in cases where a state legislature performs redistricting, redistricting is conducted by an independent redistricting commission, or even when judges themselves will play an active role in redistricting.
Four Republican former elected officials asked a court Monday to invalidate what they say is an “obvious, extreme, partisan gerrymander” of Oregon’s congressional district map.
The quartet filed their suit exactly two weeks after Oregon’s House and Senate, on strict party-line votes, approved a map creating Oregon’s new sixth congressional district and reshaping the other five in a way that is all but guaranteed to give Democrats five of the six seats. That 83% ratio far exceeds the 56% share of the votes Oregonians cast for Democrat Joe Biden in the 2020 presidential election….
The lawsuit, filed in Marion County Circuit Court, claims that’s out of line with the state law requiring districts to be “connected by transportation links.” The district will stretch from Clackamas County across the Cascade Mountains, which “can be impassible during winter conditions,” it says.
Colby Itkowitz WaPo column.
Republican state lawmakers Friday asked the U.S. Supreme Court to throw out a redistricting lawsuit before a panel of federal judges, saying the matter should instead be considered by Wisconsin’s high court.
The move comes two days after conservatives on the Wisconsin Supreme Court accepted a similar case.
The court fight over redistricting is quickly escalating even though no one yet has proposed new maps for the state’s legislative and congressional districts.
Lawyers for the Republican legislators told the U.S. Supreme Court it should toss aside the challenge in federal court because there’s no basis for a lawsuit at this stage. Federal courts have tight rules for when they allow cases to proceed and the Republicans contend there isn’t sufficient conflict for the lawsuit to be considered
The Supreme Court today granted in part the Citizens Redistricting Commission motion, filed a month ago, to further extend the constitutional and statutory deadlines to release for public comment and to then certify and approve Congressional, state legislative, and Board of Equalization district maps for the 2022 election. The extensions are a bit shorter than the Commission asked for, however.
The court last year issued a writ extending from July 1 to November 1 the date for releasing proposed maps for public comment and from August 15 to December 15 the time to approve and certify final maps. Under today’s order, those deadlines are now November 15 and December 27. The Commission wanted the dates to be November 19 and January 14, to avoid the need for public meetings during the holiday season.
The order is procedurally unusual. The Commission’s motion was filed in the writ of mandate proceeding that yielded last year’s extension opinion (Legislature v. Padilla (2020) 9 Cal.5th 867) and it asked for modifications of the court’s writ. The order says that it “clarifie[s] and modifie[s]” the writ. But the court had made its decision issuing the writ final on filing, and the rules provide that a decision can’t be modified after its finality (rules 8.264(c)(1), 8.490(a), 8.532(c)).
When voters in some states created new commissions to handle the politically thorny process of redistricting, the hope was that the bipartisan panelists could work together to draw new voting districts free of partisan gerrymandering.
Instead, cooperation has proved elusive.
In New York, Ohio and Virginia, commissions meeting for the first time this year have splintered into partisan camps to craft competing redistricting maps based on 2020 census data. The divisions have disappointed some activists who supported the reforms and highlighted how difficult it can be to purge politics from the once-a-decade process of realigning boundaries for U.S. House and state legislative seats.
As a result, the new state House and Senate districts in Republican-led Ohio will still favor the GOP. Democrats who control New York could still draw maps as they wish. And a potential stalemate in Virginia could eventually kick the process to the courts.
Rob Yablon has posted this draft on SSRN. Here is the abstract:
As they carry out their decennial redistricting duties, those in power sometimes audaciously manipulate district lines to secure an electoral advantage. In other words, they gerrymander. Often, however, the existing map already gives those in power a significant edge, and they may see little need for an overhaul. For them, the name of the game during redistricting is continuity rather than change.
This Article introduces the concept of “gerrylaundering” to describe mapmakers’ efforts to lock-in their favorable position by preserving key elements of the existing map. Gerrylaundering and gerrymandering both serve anti-competitive ends, but they do so through different means. Unlike gerrymandering, gerrylaundering requires no conspicuous cracking and packing of disfavored voters. Instead, it involves what this Article dubs locking and stocking: Mapmakers lock in prior district configurations to the extent possible and stock each new district with one incumbent. Based on a review of redistricting practice in all fifty states, this Article concludes that gerrylaundering is widespread and that self-serving mapmakers commonly combine gerrylaundering and gerrymandering techniques in varying proportions to achieve their preferred results.
Recognizing gerrylaundering as a phenomenon enriches existing redistricting discourse by spotlighting the insidious nature of continuity strategies: They serve to advantage those in power, yet, since they appear more restrained than radical redesigns, they come with a veneer of legitimacy. This Article concludes that the veneer is thin. As a legal matter, efforts to preserve district cores and protect incumbents do not stand on the same footing as efforts to comply with traditional geographic districting principles. As a policy matter, gerrylaundering is far more likely to subvert core democratic values than to foster them. At least two significant takeaways follow: First, courts should approach continuity criteria skeptically both when they review challenges to redistricting plans and when they draw maps themselves. Second, and more broadly, minimizing the legacy of prior maps has the potential to inject healthy dynamism into our system of district-based representation.
Seven years ago, New Yorkers voted decisively to empower a new bipartisan commission to do what self-interested politicians could not: draw new congressional district lines that were not gerrymandered to favor a particular party.
But as the panel prepares to unveil its proposed maps for the first time on Wednesday, Democratic lawmakers in New York and Washington are already laying the groundwork to cast them aside — plotting to use their supermajorities in Albany to draw new district boundaries for the next decade that might eliminate as many as five Republican-held seats.
The end result could drive one of the most consequential shifts in power in the country this redistricting cycle, the first since New York voters approved a 2014 ballot measure to curb gerrymandering.
Under the most aggressive scenarios, Democrats could emerge from 2022’s midterm elections with control of as many as 23 of New York’s 26 House seats in an all-out effort to prop up their chances of retaining control of Congress. For the first redistricting cycle in decades, Democrats control the Legislature and governor’s office, giving them the freedom to reshape districts without having to compromise with Republicans, who long held a lock on the State Senate.
“New York might be the biggest redistricting weapon for either party in the country,” said Dave Wasserman, a national elections analyst with the Cook Political Report.
Wielding it will almost certainly raise howls of protest from Republicans and expose Democrats to legal challenges and political charges that they are hypocritically turning their backs on the party’s promise to end gerrymandering, the practice that allows politicians to draw legislative lines in their party’s favor.
Just Monday, Chuck Schumer, the state’s senior senator and the Democratic majority leader in Washington, sought to rally senators on Capitol Hill in favor of a sweeping national elections bill that would override state laws like New York’s and outlaw “vicious gerrymandering, which further threatens to divide our politics.”
Yet with Republicans preparing to use their control of states like Texas, Florida and Georgia to pile up a dozen or more new red seats, Democrats seem intent on using New York’s laws to their advantage. Mr. Wasserman said that New York’s gains would likely be greater than others whose process was under single-party control, such as Texas, because those states have already been more thoroughly gerrymandered.