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Courts may play outsize role in redistricting fights

Nearly every state done with redistricting faces lawsuit over new maps

Associate Attorney General Vanita Gupta speaks at a news conference Monday on the Justice Department’s lawsuit over Texas’ new House map, as Attorney General Merrick B. Garland looks on.
Associate Attorney General Vanita Gupta speaks at a news conference Monday on the Justice Department’s lawsuit over Texas’ new House map, as Attorney General Merrick B. Garland looks on. (Anna Moneymaker/Getty Images)

A North Carolina state court offered a taste Monday of the last-minute legal wrangling that could pop up throughout this redistricting cycle when it temporarily halted congressional and state legislative candidates from filing to run in elections barely three months away.

The Tar Heel State faces several gerrymandering lawsuits over its new congressional map, part of a legal deluge facing almost all 18 states that have finished redistricting so far. The Justice Department added to the storm Monday, suing Texas over its map. Similar fights playing out in state and federal courts may end up determining more congressional maps than usual this year, experts say. 

The delayed release of 2020 census data has seen states sprinting to finish redistricting, but with control of the House hanging by a handful of seats, litigants are looking to courthouses to challenge the mapmaking effort. 

Several states, such as South Carolina and Pennsylvania, face lawsuits without having even finished their redistricting process. Challenges elsewhere have already played out: Republicans dropped a lawsuit against Oregon’s new congressional map last week.

“Courts aren’t experts in drawing maps and for them to be able to hear from people and have a robust process is a good thing, but they’re facing time pressures,” said Michael Li, a senior counsel for the Brennan Center for Justice at New York University Law School.

“Courts might end up taking shortcuts that ultimately aren’t beneficial,” he said. They have to resolve cases before upcoming election filing deadlines — some as early as January — or start ordering election dates moved.

The litigation has already threatened to scramble the election process; the Monday court order in North Carolina is the first step in an appeals process that could postpone the state’s March 8 primary. 

In the most recent redistricting cycle, a federal court ordered a delay to Texas’ congressional primaries in 2012 because of a lawsuit alleging the state’s new map diluted the power of minority voters. However, Li noted, a delay can make administering the election more difficult and discourage voters from participating.

Texas courts are dealing with some of the tightest timelines. The state has a March 1 primary and already faces half a dozen lawsuits over its new congressional map. The allegations vary from challenges to the legality of the special session used to draw the map to arguing that the redrawn lines dilute the power of growing minority communities in the Lone Star State. 

On Monday, Associate Attorney General Vanita Gupta said Texas’ redistricting plans this year were “enacted through a rushed process, with minimal opportunity for public comment, without any expert testimony, and with an overall disregard for the massive minority population growth in Texas over the last decade.”

Texas’ population grew by 4 million people from 2010 to 2020, and 95 percent of that growth came from minority populations. The state gained two House seats because of that, according to results from last year’s census.

Republicans currently hold a 23-13 edge in the state’s House delegation. Under the new map, President Donald Trump would have carried 25 seats in Texas last fall, including a new Houston-area district, up from the 22 he won under the current map.

More lawsuits expected

As courts handle the first wave of challenges in states with scheduled elections, they will have to deal with a continual crop of new lawsuits. Last week, the American Civil Liberties Union filed a challenge to Ohio’s new congressional map. The group argued in state court that the map constitutes an unconstitutional partisan gerrymander under Ohio law. A similar strategy prompted state courts in Pennsylvania and North Carolina to redraw House maps in 2018 and 2020, respectively.

Under Ohio’s new map, Trump would have won 11 of the state’s 15 districts, although he won the state with 53 percent of the vote. The new map also got rid of the district of Democrat Tim Ryan, who’s running for Senate, and made Democrat Marcy Kaptur’s seat Republican-leaning.

In a handful of states, including Virginia and Wisconsin, courts will almost certainly draw the new congressional maps.

On Nov. 29, Wisconsin’s Supreme Court laid out a ruling that rejected efforts to consider partisan gerrymandering claims as part of litigation over the state’s new congressional lines. The ruling also laid out a timeline for redistricting that would have the court hear a trial in January, leaving only a few months before the state’s June filing deadline.

In Louisiana, state Rep. Royce Duplessis told reporters on a call Monday that Gov. John Bel Edwards, a fellow Democrat, may veto the Republican-controlled Legislature’s plan for a new congressional map. Louisiana is among the few states with divided government — and in cases in which states deadlock, federal courts may step in.

“We are proceeding in a fashion as though this will likely end up in court simply because we just don’t know,” Duplessis said.

Democratic-aligned groups filed suits over the potential deadlock in Louisiana, as well as in Pennsylvania and Minnesota.

However, efforts to redraw maps through the courts may undercut a major push from advocacy groups to increase the number of minority opportunity districts protected by the Voting Rights Act. Li also said that courts tend to be more conservative when they draw maps — meaning they are less likely to do things such as draw new minority opportunity districts.

“If you’re talking about a case that would require moving lines around a lot more to create an opportunity for communities of color, courts are going to demand a lot of evidence and won’t do that unless they’re absolutely legally required to do so,” Li said.  

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