Maps in Flux: Ongoing Redistricting Litigation

This November, Americans will go to polls in the nation’s third set of legislative and congressional elections since maps were redrawn after the 2010 Census. Although redistricting took place over five years ago, remarkably, maps still are not final in more than half a dozen states because of pending litigation. While the 2016 elections will be held on the current maps, changes could be ahead for future cycles.  

Wisconsin: Whitford v. Nichol

In Wisconsin, voters are waiting for a ruling from a panel of three federal judges on whether the legislative plans adopted in 2011 by the Republican-controlled legislature created an unconstitutional partisan gerrymander. The plaintiffs, a group of 12 Wisconsin voters, argued that the map violated the Equal Protection Clause and the First Amendment right to freedom of association because it attempted to discriminate against Democratic candidates and voters based on their political beliefs. In doing so, they say Wisconsin Republicans created a map that aggressively maximized the number of seats Republicans control to ensure the party has a majority of legislative seats, even in the case of a significant swing in support toward Democrats.

The court completed trial in May and is expected to rule in the next few months. Although the current maps will remain in place for the 2016 election, changes could be made to the maps before the 2018 election if the court finds that an unconstitutional partisan gerrymander did, in fact, take place.

Maryland: Shapiro v. McManus

Partisan gerrymandering also is at issue in Maryland, where a group of Republican voters are challenging a congressional plan adopted by the Democratic-controlled legislature in 2011 that radically redrew Maryland’s 6th Congressional District. In 2013, plaintiffs filed a claim asserting that the 2011 congressional map violated the right to representation guaranteed by the First Amendment, because it deliberately targeted and punished voters who supported Republican candidates. Voters in the district elected a Republican in 2010, but since the map was redrawn, the district has been represented by a Democrat.

The defendants, Maryland election officials, moved to dismiss the case, contending the plaintiffs did not provide the type of feasible standard for evaluating partisan gerrymandering claims needed for a court to determine when a district map becomes unconstitutional. They also argue the map does nothing to burden plaintiffs’ First Amendment rights since they can still vote and participate in the political process.

A panel of three federal judges heard oral argument on the motion to dismiss on July 12. A ruling is expected late summer or in the fall.

Virginia: Bethune-Hill v. Virginia State Board of Elections, Vesilind v. Virginia Board of Elections

In Virginia, allegations of racial gerrymandering have kept the state’s legislative maps from becoming final. In Bethune-Hill v. Virginia State Board of Elections, residents of all 12 legislative districts contested the state house map draw by Republican political leaders, arguing the districts were drawn to unconstitutionally pack African-Americans.  However, a panel of three federal judges rejected the claim, ruling race was not a primary consideration when the maps were drawn in 11 of the 12 districts. Although race was a predominate factor in the 12th district, the map was still found constitutional because it served a compelling interest to the state. The district court’s ruling underscored the tension between the constitutional and statutory demands of the Voting Rights Act.

The U.S. Supreme Court is scheduled to hear the case in the fall. It is anticipated that the court will address the central issue of the case: whether the Virginia General Assembly was motivated by protecting incumbents or impermissibly used race in creating the districts. If the Court reverses, changes could be made to the map for the 2017 election.

The Vesilind v. Virginia Board of Elections case also challenges the constitutionality of Virginia’s legislative maps. Supported by the non-partisan redistricting reform group, OneVirginia2021, a group of citizens filed a lawsuit that argues the legislative districts drawn in 2011 were created in violation of Virginia’s Constitution, subordinating the state’s constitutional requirements of compactness over political concerns. The case is pending before the Virginia Supreme Court on a dispute over legislative privilege. The parties have concluded briefing that issue in July, and a ruling is expected in the next few weeks.

North Carolina: Harris v. McCrory, Covington v. North Carolina, Dickson v. Rucho, Common Cause v. Rucho

In North Carolina, not one but five cases are pending challenging the redrawing of the state’s legislative and congressional maps on grounds of both racial and partisan gerrymandering.

This fall, the Supreme Court will hear arguments in Harris v. McCrory about whether North Carolina lawmakers relied too heavily on race when it redrew its congressional district lines in 2011. The plaintiffs allege that North Carolina packed African-American voters into the 1st and 12th Congressional Districts, resulting in an unconstitutional racial gerrymander. In early February 2016, the three-judge panel agreed and struck down the map. North Carolina officials have asked the Supreme Court to decide whether the trial court’s racial gerrymandering findings were correct. The case will be argued at the Supreme Court in the fall.

A similar argument underlies a challenge to the state’s legislative maps in Covington v. North Carolina, a case that went to trial before a different panel of three federal judges in April. More than two dozen residents sued the state and key legislators, arguing that nine state Senate districts and 19 state House districts were racial gerrymanders. This month, the judges unanimously held that the North Carolina General Assembly unconstitutionally used race as a predominant factor when it drew legislative districts in 2011 by unnecessarily increasing the percentage of black voters in districts where black voters had been successfully electing their candidates of choice in years prior. Twenty-eight state senate and state house districts were ruled to be racial gerrymanders. Although the current maps will remain in place for the 2016 election, the court will oversee a redrawing of the map for the 2018 cycle. The state is expected to appeal.

North Carolina legislative maps are also the subject of Dickson v. Rucho, a state-court challenge brought under provisions of the North Carolina Constitution. A state trial court and the North Carolina Supreme Court rejected the challenge, but plaintiffs have asked the U.S. Supreme Court to review the case. A decision by the high court on whether to hear the Dickson case is expected this fall.

Last but not least, two cases also contend that the redrawing of North Carolina’s congressional map after the racial gerrymandering ruling in Harris v. McCrory resulted in an unconstitutional partisan gerrymander. At the Supreme Court, the plaintiffs in Harris, have asked the Court to hold that the lower court improperly declined to consider their partisan gerrymandering claims. In the meantime, Common Cause, the North Carolina Democratic Party, and a group of North Carolina voters filed a separate lawsuit, Common Cause v. Rucho, raising partisan gerrymandering allegations over the congressional map. A federal three-judge panel will be appointed by the Fourth Circuit to hear the new case, though there is a possibility the state will ask the court to suspend the case until the Harris appeal at the Supreme Court is resolved.

Alabama: Alabama v. Alabama Legislative Black Caucus

Last year, in a 5–4 decision, the Supreme Court reversed  a three-judge federal panel and instructed the lower court to re-review whether the new redistricting map drawn by Alabama’s Republican-led legislature diluted the voting strength of the state’s African Americans by packing African Americans into districts  based on a superficial reading of the Voting Rights Act. The Supreme Court said that although Alabama was under an obligation imposed by the Voting Rights Act not to diminish (retrogress) the effectiveness of existing African American districts, the percentage of African Americans to accomplish that end needed could not be determined arbitrarily but instead required a district by  district analysis. C the

On remand, in August 2015, the three-judge panel ordered the plaintiffs to submit a new map based on specific criteria outlined in the court’s order. Although briefing on proposed remedial plans was completed at the end of 2015, the three-judge panel has yet to rule.

Texas: Perez v. Perry

In Texas, the state’s congressional and state house maps are not final because of suits alleging the plans violate the Voting Rights Act and the U.S. Constitution. The plaintiffs contend they have a discriminatory effect on Latino and African-American voters and were adopted with discriminatory intent. 

A panel of three federal judges completed trial in the case in August 2014 but has not yet ruled. If the court rules in favor of the plaintiffs, the challenged maps could be redrawn to create additional electoral opportunities for Latino and African-American voters in the state. In addition, if the court finds the plans were adopted with discriminatory intent, the court could use provisions of the Voting Rights Act to place Texas back under a requirement that it obtain pre-approval of election law changes, including redistricting plans, from a federal court or from the U.S. Department of Justice.

Plaintiffs in the case recently asked the court to hold a status and scheduling conference in September, expressing concerns that unless the case were resolved expeditiously that it would be hard to implement changes in time for the 2018 election.

Arizona: Leach v. Arizona Independent Commission

In Arizona, Republican legislators and supporters are challenging the drawing of the state’s congressional maps in a suit filed in state court. The plaintiffs allege the commission did not follow mandatory, constitutional guidelines to draw the 2011 congressional map, specifically provisions that require compliance with sections 2 and 5 of the Voting Rights Act, a meaningful public comment period and considering the legislature’s recommendations. The Superior Court of Arizona dismissed a few of the claims on the commission’s purportedly improper process. The validity of the maps will be decided in a trial that is expected to be held in December or early next year.