Census results start wave of litigation over new maps
Rushed redistricting process looms ahead of 2022 midterms
Within hours after the Census Bureau’s release of census apportionment results, the first wave of redistricting lawsuits hit federal courthouses in what is likely to be a flood of legal battles leading up to the 2022 congressional elections.
A national Democratic redistricting group backed three voter lawsuits in Pennsylvania, Minnesota and Louisiana, the “first of many steps” the group said it may take on redistricting — the redrawing of congressional and legislative maps.
“There’s simply too much at stake in this process to not use every tool at our disposal, and we know that the other party is committed to gerrymandering,” said former Attorney General Eric H. Holder Jr., who heads the National Redistricting Action Fund, the group suing to mandate new maps across the three states.
On Monday, the Census Bureau released results from its once-a-decade national headcount. They showed the United States population had reached 331 million in 2020, a 7.4 percent increase over the past decade and one of the slowest growth rates in the country’s history. The next sets of census results — coming at the end of this summer — will be used to draw new legislative and congressional maps as well as help guide more than $1.5 trillion in spending annually.
The Constitution mandates a reapportionment of House seats and Electoral College votes every 10 years following the census. A combination of federal and state laws, as well as Supreme Court decisions, mandates that states redistrict their legislative maps once every decade as well.
Monday’s release of apportionment results kicked off the next stage in a rushed redistricting process ahead of next year’s congressional elections.
The Biden administration plans to release redistricting data by the end of September, although the figures could come as early as mid-August. A bipartisan group of lawmakers in both chambers introduced a bill earlier this month to extend the Census Bureau deadlines and give that plan legal cover.
There already are two federal court cases seeking to force early release of that data. One, from Ohio, is pending before the 6th U.S. Circuit Court of Appeals, and another, from Alabama, is before a three-judge panel.
Litigation over congressional and legislative maps has become commonplace over the past several decades. On a call Tuesday with reporters, Holder pointed out that courts have drawn Minnesota’s congressional maps each decade since 1980. State courts have also been involved in the recent redrawing of Pennsylvania’s and North Carolina’s congressional maps following litigation.
In the meantime, dozens of states face impending deadlines to draw new maps or hold primaries as early as next March. Common Cause and other groups have said they may pursue litigation over how states draw their maps or the partisan balance going forward.
Both Pennsylvania and Louisiana have Democratic governors and Republican-controlled legislatures. In Minnesota, Republicans control the Senate and the Democratic-Farmer-Labor Party controls the House. Those partisan dynamics raise the possibility of a stalemate over new legislative maps, and in that case, state courts get the first crack at drawing new maps.
Marc Elias, the plaintiff’s attorney for the three cases filed late Monday, said the lawsuits are intended to ensure state courts have time to redraw the maps before next year’s election deadlines. All three lawsuits seek to block the states from using old maps for the 2022 congressional elections, alleging voters in the state may find their vote diluted under maps drawn with 2010 data.
“We are prepared and ready to use every legal tool available to make sure that new maps do not unfairly treat voters,” Elias said.
Republicans have argued that even in states where they control redistricting, there are already significant limits on how much gerrymandering they could do.
Adam Kincaid, executive director of the National Republican Redistricting Trust, told reporters on a press call Monday that the change in House seats seemed to be a “wash” from a redistricting perspective.
Kincaid and members of other Republican redistricting groups have argued that federal law and Supreme Court decisions put significant limits on what legislatures can do in drawing congressional maps.
Supreme Court cases in the past decade have lessened federal oversight of redistricting under the Voting Rights Act and have closed off litigation over partisan gerrymandering. That means state courts may end up handling more redistricting litigation than in previous decades.
Litigants successfully sued for the new maps in Pennsylvania and North Carolina over partisan gerrymanders in state court, and state courts also handle the first line drawing in impasse cases, such as the ones the National Redistricting Action Fund brought Monday.
There’s also still a chance that states could sue over the apportionment results themselves.
According to the population totals released Monday, Texas gains two House seats, while Colorado, Florida, North Carolina, Montana and Oregon each gain one. California, Illinois, Michigan, New York, Ohio, Pennsylvania and West Virginia each lose a seat.
New York lost its 27th District seat by a historically small margin — 89 people.
Several times over the last few decades, the last state to lose a congressional seat has launched a legal challenge to the process, sometimes multiple cases, over particular administrative decisions the Census Bureau made on who to count where.
In 2000, Utah launched two unsuccessful challenges to the apportionment process. One sought to count missionaries serving abroad as state residents, and the other challenged a statistical method the Census Bureau used to count nonresponsive households. Both efforts were an attempt to gain a congressional seat at North Carolina’s expense.
Such efforts typically do not succeed, said Tom Wolf, the senior counsel at the Brennan Center for Justice at New York University School of Law. He pointed out that while states have challenged decisions — like where to count military personnel deployed abroad, or whether to count missionaries back to their home states — the Supreme Court has sided with the Census Bureau.
“Even those simple disputes have generally not resulted in wins for the people challenging the count,” Wolf said.