After Alabama finished redrawing its congressional map last week, the plan is heading back to court, where advocates say the Legislature ignored a mandate to expand Black voting power.
While Alabama’s case has a way to go — a three-judge panel that ordered new maps in early 2022 will hold another hearing next month — it’s one of the furthest along in a series of courtroom redistricting battles playing out in about a dozen states.
Some new maps could be drawn in time to change the electoral landscape in 2024, when Democrats need a net gain of just five seats to take control of the House.
But others may still be facing challenges as that election goes forward. Indeed, one attorney said drawing new districts just once a decade after the census comes out is almost passé, and ongoing litigation is the new normal.
“This has been this way for a couple decades in Texas in particular, where the redistricting litigation never ends,” said Mark Gaber, senior director for redistricting at the Campaign Legal Center.
The Alabama court order for a new map in 2022 was put on hold by the Supreme Court, which lifted that stay last month in a ruling that upheld a key part of the civil rights-era Voting Rights Act.
Former Attorney General Eric H. Holder Jr. said the latest redraw “would make George Wallace proud,” invoking the former Alabama governor who had blocked school integration until President John F. Kennedy federalized the National Guard.
“Throughout the redraw process, the debate among legislative Republicans was never about how to best ensure Black Alabamians had the opportunity to elect a candidate of their choice,” Holder, chairman of the National Democratic Redistricting Committee, said in a statement last week. “Instead, it was a debate between two maps that sought to preserve an illegal and discriminatory status quo.”
Alabama Gov. Kay Ivey defended the new map, which would not create a new district where Black voters would be in a majority or close to it, as many believed the court had ordered.
“The Legislature knows our state, our people and our districts better than the federal courts or activist groups, and I am pleased that they answered the call, remained focused and produced new districts ahead of the court deadline,” Ivey said in a statement.
Gaber and others said it’s also too soon to say whether Supreme Court decisions decided in the last term or pending in the next term could spur more redistricting litigation down the road. There’s still active litigation over the Voting Rights Act and racial discrimination claims in federal court and partisan gerrymandering claims in state courts across the country.
Federal cases heading for a redraw
In Louisiana, a panel of three federal judges is currently supervising the case over drawing a new Black-opportunity district before next year’s elections.
Republicans currently represent five of the six districts in the state, and Rep. Troy Carter, the state’s sole Democrat in Congress, represents a Black-majority seat based in New Orleans. Challengers to the map convinced the panel of judges that the state should have an additional seat where Black voters could influence the election — a decision also put on hold while the Alabama case played out.
The Supreme Court also fired a starter pistol on redistricting in North Carolina last month. North Carolina House Speaker Tim Moore said the legislature may redraw the state map this fall after a Supreme Court case last month affirmed the authority of state courts to review congressional maps.
Republicans gained control of the state Supreme Court after last year’s elections, and the court overturned a ruling made by the previous court’s Democratic majority that produced a map that resulted in a split House delegation of seven Republicans and seven Democrats. The Republican-controlled legislature could move forward with the map they originally drew ahead of the 2022 cycle after the 2020 census, or it could draw a new map.
In Wisconsin, the top state court flipped in the opposite direction when Janet Protasiewicz, a Democrat-backed candidate, won a high-profile election for the state Supreme Court. She takes her seat next month, and Democrats could file a new challenge to the map at that point.
In Georgia, a federal judge has set a Sept. 5 trial for three similar challenges to the state’s congressional districts and requested additional briefing in response to the Supreme Court’s ruling in the Alabama case. Kareem Crayton, the senior director for voting rights and representation at the Brennan Center for Justice, said that case “has a little more mileage to run” compared with the suits over Alabama’s and Louisiana’s maps but could conceivably resolve before the 2024 election.
Cases in all three states hinge on claims that the maps violate the Voting Rights Act by diluting the power of Black voters.
State court redraws
Those federal cases are separate from state litigation over claims that maps are gerrymandered to advantage one party over another. Disputes over that question in state courts could result in new maps for Ohio, New York and Utah.
The Ohio state legislature is set to redraw its maps this fall after the state’s high court rejected maps that state lawmakers drew multiple times before the 2022 election.
Crayton said it’s “questionable” whether Ohio would finish new maps by next year’s election. The state Supreme Court does not have the power to draw new maps, and there was a shift in the court’s makeup this past year.
Additionally, Crayton pointed out that there is a ballot initiative before voters next month that would make passing constitutional amendments more difficult, a change that could hinder future efforts to change the state’s redistricting process.
In New York, a state appeals court earlier this month ordered the state’s redistricting commission to draw a new congressional district map before the 2024 election. But that commission deadlocked ahead of the 2022 election, which led to the Democrat-controlled Legislature drawing its own map that was thrown out by the state’s top court, the Court of Appeals. That court ordered a new, more competitive map to be used for the 2022 midterms.
The court’s ruling earlier this month could give Democrats another chance to draw the state’s congressional districts. Republicans have vowed to appeal.
“When Democrats can’t compete, they cheat,” House GOP Conference Chairwoman Elise Stefanik and state party Chair Ed Cox said in a statement.
Richard Briffault, a law professor at Columbia University Law School, said it’s possible the state commission, Legislature and court system may be able to finish the process by next year.
“The question is, will the Democrats who run the Legislature learn their lesson to not be so aggressive this time and come up with one that would survive a challenge as a gerrymander?” Briffault said.
In Utah, Gaber said it’s possible that litigation could resolve before next year’s election. Voters have challenged the state’s map as a partisan gerrymander and pushed to reinstate a ballot initiative that would have banned partisan gerrymandering through a constitutional amendment.
That suit is currently before the state Supreme Court, which last week requested more arguments from both parties in the case.
New Supreme Court rulings?
Another question mark is South Carolina, where a three-judge federal panel ordered the state’s 1st District, represented by GOP Rep. Nancy Mace, to be redrawn. The Supreme Court has agreed to hear arguments over a challenge to that order in October.
In a January decision, the three judges wrote that legislators deliberately moved 30,000 Black residents from Charleston County out of the district to keep its population about 17 percent Black. That “target” meant the district would keep a “desired partisan tilt” in Republicans’ favor, a violation of the 14th Amendment’s prohibition on discriminating against voters based on race, the judges wrote.
The South Carolina case may also impact the federal redistricting litigation in Florida, which involves similar racial gerrymandering claims. Gaber pointed out that the situation is slightly complicated by the fact that there is also a partisan gerrymandering case pending in state court.