Category Archives: redistricting

Wilfred Codrington in Balkinization Symposium on “A Real Right to Vote:” “A [More] Real Right to Vote”

Wilfred’s post on my book, A Real Right to Vote:

Many congratulations are due to Professor Richard L. Hasen on the publication of his newest book, A Real Right to Vote: How a Constitutional Amendment Can Safeguard American Democracy. In this short book that seeks to address not-so-sweet problems, Hasen seamlessly weaves anti-canonical election law cases with modern stories of anti-democracy (some of which have yet to reach their conclusions) to explain the utility of a Right to Vote (“RTV”) Amendment today. In general, I am happy to read this work, as it adds a distinguished voice to the growing chorus that signs the praises of a RTV Amendment. An idea that was once looked upon as extraneous, unworkable, or even a pipe dream seems to be gaining more traction in the scholarly community. Even still, my sense is that Hasen’s proposals—both the basic and extended versions—do not go far enough in an important respect. Any discussion of an effective right to vote that disregards the problem of partisan gerrymandering, to me, seems incomplete.[1] And having gone back to review some of Hasen’s older works, I am persuaded that, even on his terms, there are at least three reasons why the basic amendment should include a provision to address the concern of partisan gerrymandering….

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“Supreme Court’s Delay Creates Uncertainty for South Carolina Election”

Jimmy Hoover for National Law Journal:

New candidates are throwing their hats in the ring in Republican Rep. Nancy Mace’s South Carolina congressional district despite a court ruling last year striking down the GOP drawn map as an unconstitutional “racial gerrymander.” 

Both GOP state lawmakers defending the state’s newly drawn First Congressional District and challengers from the South Carolina State Conference of the NAACP had hoped the U.S. Supreme Court—which heard arguments in October—would have completed its review of that decision by Jan. 1.

As it stands, key primary deadlines are fast approaching without word from the high court on whether new district lines drawn after the 2020 census are valid.

“I know that originally there was talk of trying to get it out early before the primaries, but the court doesn’t seem to be in much of a hurry with anything this term,” said Rick Hasen, an election law professor at UCLA Law.

At stake in the case is whether Republicans can hold on to a 1.36 point partisan advantage from the new map or whether the state General Assembly will have to go back to the drawing board to satisfy the demands of a federal district court panel that struck down the map as unconstitutional. The panel found the new map illegally moved Black voters into a nearby district to maintain a low Black voting age population.

The panel has said it would allow the Supreme Court to complete its review, expressed hope a remedial plan could be adopted before the coming elections and entertained pushing back any elections until an alternative map is put in place.

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“Republicans Hatched a Secret Assault on the Voting Rights Act in Washington State”

ProPublica:

Republican Paul Graves’ work was about to come undone. In the wee hours of Nov. 15, 2021, he and his fellow Republican on Washington state’s independent redistricting commission had finally prevailed on their Democratic counterparts to agree to the maps voters would use in the upcoming election.

But then Latino voters sued the state, claiming the new legislative maps didn’t give them voting power commensurate with their population. Now, Graves worried, a federal judge was about to force the state to give Democratic-leaning Latinos more voting power.

With the balance of power in Washington up for grabs, he launched a covert attack. He consulted powerful state Republicans. He reached out to national Republicans, including the most influential conservative redistricting lawyer in the country, to discuss funding a lawsuit and get strategic advice. He conferred with a Seattle law firm. And he found a Latino congressional hopeful to act as the face of the lawsuit.

A countersuit was filed — against Graves’ own work. This suit made the opposite argument from the Latino group’s. Yes, the map that Graves and his fellow commissioners had created discriminated. But it had disadvantaged white people and other voters.

Sure enough, as Graves had foreseen, in August of last year the judge sided with the Latino plaintiffs. He determined the Yakima Valley map violated the Voting Rights Act, the landmark 1965 civil rights law that has been the bedrock of voting discrimination cases for over half a century. Section 2 of the VRA prohibits the creation of election districts that deprive voters of color of their full rights. The judge said the maps needed to be redrawn.

Having handed Latinos a win, the judge tossed the lawsuit that Graves had helped generate as moot. Undeterred, the legal team of Benancio Garcia, the Latino congressional hopeful, appealed all the way to the U.S. Supreme Court, asking it to block the new maps until it had weighed the merits of his claim. The court declined to take the case earlier this month, and it is unclear whether lawyers will now appeal to the 9th U.S. Circuit Court of Appeals.

Graves told ProPublica he wanted legal action that would slow down the court because he believed the plaintiffs were about to push through “a naked partisan gerrymander.”

“My singular goal, once a lawsuit was filed, was to defend the maps,” he said in a statement. His work is described in sworn depositions and court documents, including emails and other communications introduced as exhibits.

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“Wisconsin Supreme Court rejects move to reconsider state’s congressional maps”

Milwaukee Journal-Sentinel:

The Wisconsin Supreme Court on Friday rejected a request to reconsider the state’s congressional maps ahead of the next election, ensuring the current district boundaries will remain in place for 2024.

The court’s decision ends a last-minute push from Democrats to change the state’s congressional maps after they successfully signed into law new legislative boundaries last month that weakened Republicans’ grip on the state Legislature.

“This motion comes as no surprise after the court’s new majority telegraphed its willingness to rebalance political power in the state of Wisconsin by overturning Johnson v. Wisconsin Elections Commission,” conservative Justice Rebecca Bradley wrote in the order, referencing the court’s previous decision on the maps.

“While the court rightfully denies this motion,” she added, “it likely won’t be long until the new majority flexes its political power again to advance a partisan agenda despite the damage inflicted on the independence and integrity of the court.”

Newly elected liberal Supreme Court Justice Janet Protasiewicz did not participate in a vote on the motion, writing Friday that she was not seated on the court when the underlying case was decided. Chief Justice Annette Ziegler joined Bradley in her concurring opinion rejecting the request to consider new maps.

You can find the order here (via Democracy Docket).

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“Democrats Blew Their Big Opportunity to Make New York Winnable in 2024”

Alexander Sammon for Slate:

After over a year in court, millions of dollars on lawyers’ fees, an overhaul of the state’s highest court, and an all-out battle to throw out New York’s congressional districts and replace them with something more favorable for Democrats, the New York Senate, empowered with the ability to flip control of the House single-handedly, voted to confirm new maps, signed by the governor into law. The result: The number of Trump-won districts in the state has officially increased from five to six.

Read that again. Not a typo! The most anticipated Democratic gerrymander of the 2024 election cycle has resulted with Democrats—wielding supermajority control of the Legislature and a newly enshrined liberal majority on the state’s highest court—actually increasing the number of congressional districts in areas won by a Republican in 2020. They made swing districts like NY-01 even redder, likely putting them out of reach for Democrats. (Swingy NY-19, too, is ever so slightly redder than before.) The new map is barely distinguishable from the 2022 map that contributed to New York Democrats’ disastrous midterms performance and gave the Republicans the House majority….

Charitably, New York Democrats were probably afraid that if Republicans sued successfully, a court could redraw the map with no solicitude for Democratic incumbents. They were trying to protect themselves, with little concern for national Democrats. But if Republicans had sued to thwart a gerrymander and won, the cost would have been minimal: The Legislature would merely have to try again. Instead, it didn’t even try, choosing instead to shore up its individual fates at the expense of the party broadly. New York Democrats never miss an opportunity to miss an opportunity, and that truth is etched into this map. What was the point of flipping the court, of bringing the lawsuit, of all of it?

“It’s absolutely astonishing. We’ve seen how feckless NY Dems have been in so many ways for so many years—decades, really—so I’m disgusted more than I am surprised,” said David Nir, publisher of Daily Kos Elections, which closely tracks redistricting efforts. “If it’s better than the ’22 map, it’s barely any better.”

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“NY Gov. Approves Bill Directing Redistricting Suits to NY’s Major Metropolitan Courts”

Law.com:

An amended bill that limits New Yorkers to filing redistricting lawsuits in Manhattan and Albany, Westchester and Erie counties was signed into law by Gov. Kathy Hochul on Wednesday, after the Assembly approved it earlier in the day, while the Senate had passed it on Monday.

Bill sponsors say S3292B/A435A is aimed at preventing forum shopping and to designate those courts as experts in redistricting matters.

But the controversial proposal drew a more-than hourlong debate on Monday in the Senate, with Republican opponents asserting the bill would harm New Yorkers who don’t live near the four designated counties.

New York elections attorneys continue to monitor the bill, which originally targeted Albany County for hearing redistricting cases throughout New York’s 62 counties.

Cozen O’Connor senior counsel Jerry Goldfeder, a prominent elections attorney, told the Law Journal in an interview that the bill makes sense.

“It’s an attempt to make certain that courts in the major population areas hear cases that relate to the entire state, as opposed to state supreme court justices in counties with very few people, that make it very difficult for people to attend,” Goldfeder said….

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“Shadow disticts”

Quinn Yeargain has written this article for the Cardozo Law Review. Here is the abstract:

Redistricting disputes—for congressional, state legislative, and local districts—have proven all-consuming in politics. Litigation over the legality of districts, under both federal and state law, is near constant when decennial redistricting occurs. But largely omitted from redistricting litigation and scholarship, however, are the districts drawn to elect members of statewide boards. These boards have outsized authority over some of the most salient disputes in politics today, with state boards of education setting policies for what can be taught in classrooms and how LGBT students are treated by the public education system, public utility commissions adopting policies for renewable energy production and decarbonization, and executive councils playing a key role in checking the powers of state governors.

Despite the significant policymaking authority of these boards, the districts used to elect them are all too frequently ignored during decennial redistricting. Partisan gerrymandering claims are increasingly brought against congressional and state legislative districts, but hardly ever against state board districts. Racial justice groups frequently push for the creation of new minority-opportunity districts for Congress, state legislatures, and even municipal bodies, but hardly ever for state boards. And in some cases—most notably, Mississippi and Montana—these districts haven’t been redrawn at all.

In this Article, I argue that the omission of state boards from redistricting litigation and conversations is a grave failure of democracy. I explore how representational progress in state democracy has largely left state boards elected by district behind. To do this, I build out a full legal history of these boards, drawing on my own comprehensive database of state elected offices, which tracks every creation, abolition, and redistricting of state boards from 1776 to the present. I map the inauguration of the one-person, one-vote standard by the U.S. Supreme Court and explore its lackluster application in the context of state boards, revealing federal and state litigation that has never been discussed in legal scholarship.

Ultimately, I argue that the omission of state boards from redistricting litigation and conversations represents not just a serious neglect of the one-person, one-vote standard, but a missed opportunity for racial justice and equity. The mismatch between districts and representation has resulted in gerrymandered boards setting policies in important areas—with little claim to democratic legitimacy. At a time when public schools are in the crosshairs of culture wars, and when communities of color are demanding environmental justice, the unaccountability of the state institutions responsible for setting educational and environmental policies is problematic.

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“Gov. Tony Evers signs new election maps, ending Wisconsin Republicans’ grip on legislative power”

Milwaukee Journal-Sentinel:

 Wisconsin Republicans lost their more than decade-long grip on control of the state Legislature Monday after Democratic Gov. Tony Evers signed into law new electoral maps that reshape down-ballot races in this battleground state.

Evers signed a bill put forward by GOP lawmakers last week implementing new legislative maps the Democratic governor drew himself that dramatically weaken the advantages Republicans have enjoyed each election cycle since 2011….

The 99 Assembly districts proposed by Evers are about evenly split between Republican and Democratic-leaning districts. Forty-five districts are more Democratic than Republican, and 46 districts are more Republican than Democratic.

That leaves eight districts that are more likely to be a toss-up between Democrats and Republicans.

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“A Redistricting Surprise in New York: A Map That Plays Few Favorites”

NYT:

When New York’s top court ordered the state to redraw its congressional map late last year, the state’s ruling Democrats were widely expected to exploit the opening to aggressively reshape district lines in their favor.

But on Thursday, a bipartisan state commission created to guide the redistricting process overwhelmingly approved a new proposed map that looks a lot like the current court-drawn map that helped Republicans pick up seats in 2022.

The panel’s 9-to-1 vote now thrusts a politically and legally thorny choice on the state’s Democratic-led Legislature. It can rubber-stamp the compromise, dashing the hopes of Representative Hakeem Jeffries and other Democrats in Washington, or reject it and risk ending up back in court by pushing for more favorable lines.

The answer could have far-reaching consequences for the national fight for control of the House this fall, where New York’s swing seats alone could be enough to tip the contest.

The commission’s map includes modest tweaks that would help Democrats flip one seat in Syracuse, and would most likely make a pair of vulnerable incumbents — one Democrat and one Republican — safer in the Hudson Valley.

But it does not touch lines on Long Island or in Westchester County, both major suburban battlegrounds where Democratic campaigns were looking for a leg up, or on Staten Island, where the party has long coveted a right-leaning seat. Even subtle shifts in those areas could have made a handful of Republican-held seats virtually unwinnable for incumbents in November.

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“Wisconsin Republicans vote to weaken their lock on the legislature”

Patrick Marley for WaPo:

Wisconsin Republicans approved maps Tuesday that would weaken their ironclad grip on the state legislature, backing new district lines supported by the Democratic governor out of fears that the state’s top court could impose ones that are even worse for them.

If approved by Gov. Tony Evers, the package would jettison what experts consider one of the country’s most gerrymandered set of maps in a state that has been one of the most competitive in presidential and other statewide races.

Republicans have known since last year that their majorities could face a severe blow, after liberals took control of the state Supreme Court following an expensive and bruising election for a pivotal seat.

“We kind of have a gun to our head, frankly,” state Sen. Duey Stroebel (R) said during the floor debate. After voting to approve the new maps, state Sen. Van Wanggaard, another Republican, compared his decision to choosing to be stabbed instead of guillotined.

Democrats, who had just secured one of their biggest wins in a decade, appeared no happier than Republicans. Nearly all of them voted against the maps and privately fumed over a missed chance to get a better deal….

Republicans were so alarmed by Protasiewicz’s victory and the prospect of losing their maps that they threatened to impeach her if she remained on the case. They backed off the idea weeks later, and Protasiewicz and the court’s other liberals issued a 4-3 decision in December striking down the maps.

The court urged Evers and the legislature to draw new maps and said it would impose ones that were politically neutral otherwise.

Of the proposals for new maps that court consultants have deemed viable, the ones by Evers provided the fewest gains for Democrats. Republicans on Tuesday decided to approve those maps.

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Digging in in the Badger State

Justin here. There’s an oddity in the most recent round of Wisconsin’s redistricting travails.  Democratic legislators (and later, the Democratic Governor) seem to be voting against an ostensible olive branch extended by the Republican legislative leadership.  And I wonder if that’s because the olive branch isn’t what it seems.

(Caution: deep dive ahead.  If you’re already all caught up on the backstory, jump ahead here.)

***

A (necessarily) brief recap: the redistricting fight in Wisconsin has been bitter.  On a strict party-line vote, the 2021 Republican-controlled legislature passed a legislative map vetoed by the Democratic Governor; the state Supreme Court drew “least-change” maps preserving the extreme partisan gerrymander of the previous decade.  In the 2023 campaign for a state Supreme Court seat, the maps’ bias was a campaign issue, and when Justice Janet Protasiewicz won the seat and refused to recuse from a new legal challenge to the maps, the legislature threatened impeachment.

Much of the commentary portrayed that legal challenge as a partisan gerrymandering case under the state constitution.  But though plaintiffs presented that issue, the state Supreme Court never agreed to hear it.  Instead, the court focused on whether the new map obeyed state constitutional requirements of contiguity, and held that the map failed to ensure that all the parts of each district were connected.  In selecting a remedy from among plans that otherwise satisfied state constitutional criteria, the court also announced that it would decline to put its judicial imprimatur on a plan designed to confer extreme partisan advantage — including “gerrylaundering” that just locked in the existing extreme bias of past cycles.

Parties — including the Governor — have now submitted remedial proposals, which have been evaluated by the court’s consultants on multiple fronts, including a measure of “majoritarian concordance” that tracks how often the districts translate a statewide majority vote to a majority of legislative seats.   The current map, and the remedial plan that the legislature submitted to the court, both do exceedingly poorly on this and other measures of bias: the extreme partisan gerrymanders do what they’re designed to do.  Several other submissions — including the Governor’s — fix the contiguity problem without nearly as much skew.  The court’s remedial decision is likely on its way.

***

The legislature has howled about purported process violations throughout this case.  But their recent filings also claim that all of the other remedial submissions violate the federal constitution.  (The claim is based on a theory of “disenfranchisement” inherent in redrawing maps when state Senate terms are staggered.  If half of the voters choose a Senator in 2020, 2024, 2028, … and half of the voters choose a Senator in 2022, 2026, 2030, … then a voter moved from a district on the 2020 path to a district on the 2022 path will have to wait until 2026 to vote for state Senate (in California, at least, this is known as “deferral”).  A bunch of states stagger state Senate elections in this way, and I don’t know of any case finding a constitutional problem in the deferral that results from redistricting.)  That includes the Governor’s map.

Now we get to the weird part.  A few weeks ago, the Republican legislature tried to short-circuit the court case by passing a plan they claimed was “99% of the way” to the Governor’s map (including the purported constitutional violation).  No Democrat voted for it, and the Governor vetoed it (in part because it tinkered with the Governor’s proposal, offering additional protection for some Republican incumbents).  The legislative leadership has now floated the possibility of the extra 1%, passing the Governor’s proposal as is (including the purported constitutional violation).  And still there seems to be Democratic resistance.

Why would the Republican legislature fighting tooth and nail for advantage suddenly try to pass a Democratic Governor’s plan that they claim is constitutionally infirm?  And why would Democrats vote against it? 

It’s possible that this is just belated resignation: the legislators think that the state Supreme Court is likely to impose an alternative worse for them than the Governor’s map, and are trying to limit their losses by taking the decision out of the court’s hands.  (And it’s possible that Democrats would rather take their chances with the court.)  That’s certainly Ockham’s razor.

But hat-in-hands enlightened conciliation isn’t quite this legislature’s style.  I can’t help wondering whether Professor Ackbar has it right.  Specifically, I wonder whether the unusual behavior might be explained in part by the prospect of forum-shopping. 

An equally bitter redistricting fight has been proceeding in Louisiana, where the legislature just passed a map to remedy a VRA violation, while vehemently protesting that the map was unconstitutional.  (The legislature’s claims were mostly rejected by the Fifth Circuit (!), following last year’s SCOTUS case from Alabama.)  A new set of plaintiffs has just picked up the legislature’s arguments, challenging that new map as unconstitutional.  But they didn’t file that objection in the ongoing federal case — they filed in a different federal district, drawing a three-judge court with a conservative majority.  (The legislature asserts that the court ordering the VRA remedy no longer has jurisdiction over the case now that a new map exists.)  The legislature has already successfully stalled relief for the VRA claim through the 2022 elections, and the new lawsuit appears to bait a hook for further stalling through 2024.

What does any of this have to do with Wisconsin?  Well, if the state Supreme Court selects a map, refuting a fringe federal constitutional theory in the process, the natural avenue to contest that claim is to ask SCOTUS for relief.  That’d be a real longshot here.

But if the Governor signs a new map through the legislative process that resolves the state issues, the state Supreme Court case goes away.  And someone else would be free to forum-shop a federal constitutional claim in the Wisconsin federal district of their choice, with the remainder of a three-judge court appointed by Chief Judge Sykes of the 7th Circuit.  To be clear, I don’t think the ostensible constitutional objection has much merit.  But trying to sell two judges on a longshot claim — at least long enough to stall through the 2024 elections — may seem easier than trying to sell five of them.

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“Civil Rights Groups Secure Victory in LandmarkCase Challenging Racial Discrimination inLouisiana’s State Legislative Maps”

Release:

In a victory for fair maps, a federal court today ruled in favor of Louisiana voters, agreeing that the current state House and Senate district maps violate Section 2 of the Voting Rights Act.

The plaintiffs who challenged the state legislative maps — the Louisiana State Conference of the NAACP, Black Voters Matter Capacity Building Institute, and several individual voters — are represented by the American Civil Liberties Union, ACLU of Louisiana, Legal Defense Fund (LDF), law firm Cozen O’ Connor, and Louisiana attorneys Ron Wilson and John Adcock.

In its decision, the court condemned the packing and cracking of Black communities within the maps, emphasizing the importance of upholding the principles of equal representation for all citizens.

In response to these findings, the court has mandated remedial measures to rectify the discriminatory boundaries, ensuring that future elections reflect the true diversity of the Louisiana population. Today’s decision reinforces the importance of protecting every citizen’s right to vote and ensures that electoral processes are fair, just, and free from discriminatory practices.

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“Partisan Gerrymandering Cases in State Supreme Courts in the 2020s Redistricting Round”

Jonathan Cervas, Bernie Grofman, Scott Matsuda, and Justine Kawa have posted this draft on SSRN. Here is the abstract:

After the U.S. Supreme Court opted out of any federal court role in policing partisan gerrymandering in its 2019 decision, Rucho v. Common Cause, if a redistricting plan was alleged to be a partisan gerrymander, that challenge needed to be brought in state courts. There are three possibilities: (a) a state supreme court could hold partisan gerrymandering claims nonjusticiable under state as well as federal law; (b) it could review a proposed map and find it unconstitutional; (c) it could review a map and reject the gerrymandering claim. Here, we focus on state court decisions that took place before the November 2022 elections in partisan gerrymandering claims regarding maps drawn for elections to the U.S. House of Representatives in the 2020s redistricting round. We are primarily interested in three issues: (1) How did state courts faced with a redistricting challenge based on a claim of partisan gerrymandering decide whether state law allowed them to address the factual aspects of the claim rather than treating the claim as non-justiciable? (2) If the court decided the claim was justiciable, what definition of partisan gerrymandering was used and, in particular, what kind of empirical evidence was cited by the justices – e.g., measuring the extent of gerrymandering via metrics based on election data, and/or evaluating maps in terms of the degree to which traditional good government criteria were satisfied, and/or considering the process of map drawing and what it implied about partisan intent? (3) Is there indirect evidence that the partisan predilections of the justices affected their decision about the constitutionality of a challenged congressional map?

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“A Partisan Solution to Partisan Gerrymandering: The Define–Combine Procedure”

Maxwell Palmer, Benjamin Schneer and Kevin DeLuca in Political Analysis. Abstract:

Redistricting reformers have proposed many solutions to the problem of partisan gerrymandering, but they all require either bipartisan consensus or the agreement of both parties on the legitimacy of a neutral third party to resolve disputes. In this paper, we propose a new method for drawing district maps, the Define–Combine Procedure, that substantially reduces partisan gerrymandering without requiring a neutral third party or bipartisan agreement. One party defines a map of 2N2 equal-population contiguous districts. Then the second party combines pairs of contiguous districts to create the final map of N districts. Using real-world geographic and electoral data, we employ simulations and map-drawing algorithms to show that this procedure dramatically reduces the advantage conferred to the party controlling the redistricting process and leads to less-biased maps without requiring cooperation or non-partisan actors.

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