The State of Redistricting Litigation (November 2017 Edition)

A round up of where key redistricting cases across the country stand.

December 11, 2017

As 2017 enters its final stretch, redistricting litigation remains ongoing in seven states – including three states with cases currently on appeal at the U.S. Supreme Court and several lawsuits that could alter state legislative and congressional boundaries before the 2018 elections. Two cases challenging Pennsylvania’s congressional map as a partisan gerrymander are set for trial in early December and in North Carolina, a special master’s final remedial plan for state legislative districts is due at the district court for review on December 1.

Here’s a roundup of where the cases stand:

Partisan Gerrymandering

Wisconsin: Gill v. Whitford

Perhaps the biggest case of the 2017-18 Supreme Court term is a landmark partisan gerrymandering case from Wisconsin, which will give the Supreme Court its first opportunity in over a decade to rule on the constitutionality of partisan gerrymandering.

Last November, a panel of three federal judges declared that the state assembly plan adopted by Wisconsin’s Republican-controlled legislature in 2011 was an unconstitutional partisan gerrymander that violated both the Equal Protection Clause and the plaintiffs’ First Amendment freedom of association. The ruling was the first time in over three decades that a federal court invalidated a redistricting plan for partisan bias.

To evaluate the constitutionality of the map, the panel applied a three-part test that asked whether the map had discriminatory intent, had a discriminatory effect, and if there were some other legitimate reason, like the natural political geography of the state, that the map had a partisan skew. The panel concluded that the map displayed both bad intent and bad effect, citing evidence that the map drawers used special partisan measurements to ensure that the map maximized Republican advantages in assembly seats. Despite Democrats winning a majority of the statewide assembly vote in 2012 and 2014, Republicans won at least sixty of the ninety-nine assembly seats in each election.

Wisconsin Republicans dispute that they intentionally engineered a biased map, arguing that partisan skews in the map reflect a natural geographic advantage the party has in redistricting as a result of Democrats clustering in cities and Republicans spreading out more evenly throughout the state. The court, however, concluded that the state’s natural political geography “does not explain adequately the sizeable disparate effect” seen in the previous two elections.

Wisconsin filed an appeal to the Supreme Court on February 24, 2017, and the Court heard oral arguments in the case on October 3. The Court also granted the state’s request to stay the remedial map-drawing process while it considers the case.

The Court’s decision in the case is expected to be announced before the end of June 2018.

Key pleadings for Gill v. Whitford can be found here.

Maryland: Benisek v. Lamone

An appeal also is now pending at the Supreme Court in a challenge to the alleged partisan gerrymandering of Maryland’s 2011 congressional map.

In Benisek v. Lamone, the plaintiffs argue that the congressional map adopted by the Democratic-controlled legislature in 2011 violates Republican voters’ representational and associational rights guaranteed by the First Amendment because lawmakers deliberately targeted and punished voters who supported Republican candidates when drawing district lines.

According to the plaintiffs, lawmakers intentionally used information about voters’ histories and party affiliations to place Republican voters in districts where they were outvoted by Democrats, and thus flip the Sixth District from a reliable Republican seat into a safe Democratic one.

Last August, the three-judge panel hearing the case denied the state’s motion to dismiss and held that a map could be an unconstitutional partisan gerrymander if the plaintiffs could satisfy a three-part test laid out by the court.

On May 31, the plaintiffs filed a motion for preliminary injunction, or in the alternative, summary judgment. Independently, the court also asked for briefing on whether the case should be stayed until the Supreme Court rules in Gill v. Whitford.

On August 24, the district court denied the plaintiffs’ request for a preliminary injunction blocking use of the maps. The court also entered an order staying any further proceedings in the case pending a decision by the Supreme Court in Gill v. Whitford. The plaintiffs filed an appeal on August 25 asking the Supreme Court to review the decision not to preliminarily enjoin the map.

On September 13, the Supreme Court denied the plaintiffs' request to expedite the appeal.

The state submitted a motion to affirm to the Supreme Court on October 31. The plaintiffs’ filed a brief in opposition to the motion to affirm on November 14. 

Update: On December 8, the Supreme Court agreed to hear the appeal. 

Key pleadings for Benisek v. Lamone can be found here.

North Carolina:

In North Carolina, three separate cases are challenging the 2016 remedial congressional plan, which the North Carolina legislature adopted to replace an earlier plan that the courts struck down as a racial gerrymander.

Harris v. Cooper (formerly known as Harris v. McCrory)

Harris v. Cooper is an appeal at the Supreme Court that arises from objections that plaintiffs lodged to a remedial map put in place following their victory in a racial gerrymandering suit. The plaintiffs argued at the district court that the new map should be enjoined because it merely replaced an unconstitutional racial gerrymander with an unconstitutional partisan gerrymander. (For more on the racial gerrymandering case that spawned this dispute, see Cooper v. Harris, below.)

The three-judge panel denied the plaintiffs’ objections, ruling that the court could not “resolve this question based on the record before it,” and the plaintiffs appealed to the Supreme Court.

The Justices have not yet indicated whether they will hear the case and so far have not listed the case for conference this term.

Key pleadings for Harris v. Cooper can be found here.

League of Women Voters v. Rucho and Common Cause v. Rucho

In the meantime, groups of plaintiffs led by the League of Women Voters and Common Cause filed two additional cases – both pending in the Middle District of North Carolina – challenging North Carolina’s 2016 remedial map on partisan gerrymandering grounds.

The three-judge panel denied the state’s motions to dismiss the cases in an order entered on March 3, 2017. On June 26, the legislative defendants filed a motion to stay the case pending the Supreme Court’s final decision in Gill v. Whitford.

On August 29, after a continuance, the court denied the state’s motion to stay. The court held trial over a four-day period beginning on October 16. A decision in the case is expected this winter.

Key pleadings for League of Women Voters v. Rucho can be found here.

Key pleadings for Common Cause v. Rucho can be found here.

Pennsylvania:

Three lawsuits (two in federal court and one in state court) are challenging Pennsylvania’s 2011 congressional map as an unconstitutional partisan gerrymander, alleging that Republicans used their legislative control to crack and pack Democratic-affiliated voters into specific districts in order to minimize the representational rights of Democratic voters.  

League of Women Voters v. Pennsylvania General Assembly

The League of Women Voters of Pennsylvania and a group of Democratic Pennsylvania voters filed suit on June 15, 2017 to have the state’s 2011 congressional map invalidated as an illegal partisan gerrymander under the state constitution.

The plaintiffs are seeking a declaration that the plan discriminates against Democratic voters in violation of the Pennsylvania Constitution’s Free Expression and Association Clauses (Art. I, §§ 7, 20), Equal Protection Guarantees (Art I, §§ 1, 26), and Free and Equal Clause (Art I, §5).

In addition to asking that the state be blocked from using the map for future elections, the plaintiffs ask that the Pennsylvania General Assembly be enjoined from considering political data – including party membership, registration, affiliation, and political activities – in drawing future maps if such use would penalize or burden a group or individual voters based on their political beliefs.

After the Commonwealth Court of Pennsylvania granted the General Assembly’s application to stay all proceedings pending the U.S. Supreme Court’s decision in Gill v. Whitford, the plaintiffs filed an application with the Pennsylvania Supreme Court asking that the court assume extraordinary jurisdiction over the case to ensure a resolution in time for the 2018 elections.

The Pennsylvania Supreme Court granted the plaintiffs' application, ordering the Commonwealth Court to hold trial in the case and file findings of fact and conclusions of law by December 31, 2017.

On November 14, Senate President Pro Tempore Joseph B. Scarnati III filed a notice to remove the case from state court to federal district court. Shortly thereafter, the plaintiffs and Defendant Lieutenant Governor Michael J. Stack III filed motions to remand the case to the state court. The federal court held a hearing on the motions to remand on November 16. At the request of the Senator Scarnati III, the court remanded the case back to the Pennsylvania Supreme Court.

Trial is scheduled to begin on December 11.

Key pleadings for League of Women Voters v. Pennsylvania General Assembly can be found here.

Agre v. Wolf

Four Pennsylvania citizens contend in a federal lawsuit that the state’s 2011 congressional map is an unconstitutional partisan gerrymander. The plaintiffs argue that the map violates the Elections Clause of the U.S. Constitution, as well as the First and Fourteenth Amendments. The plaintiffs have asked the court to redraw the districts before the 2018 congressional elections.

On October 30, Republican legislative leaders filed an emergency petition for writ of mandamus to the U.S. Supreme Court in an attempt to suspend the trial set for December. The Court denied the petition on November 3.

On November 15, the three-judge panel denied the legislative defendants' motion to dismiss the plaintiffs' claim under the Elections Clause. However, the court dismissed the plaintiffs' equal protection claim with prejudice and also dismissed their First Amendment claim, but gave the plaintiffs the opportunity to file an amended claim under the First Amendment.

Trial in the case is scheduled to begin on December 4. 

Update: The panel completed trial in the case on December 7. The case is now under advisement.

Key pleadings for Agre v. Wolf can be found here.  

Diamond v. Torres

A group of Pennsylvania residents who are Democrats filed a suit against state elections officials, contending that the state’s 2011 congressional map is a partisan gerrymander in violation of the Elections Clause, and the First and Fourteenth Amendments of the U.S. Constitution. The plaintiffs allege the Republican legislature drew the map with the intent of maximizing Republican power by cracking and packing Democratic-affiliated voters into specific districts to dilute their voting power and deny them a realistic opportunity to elect their candidates of choice.

The plaintiffs have asked the court to expeditiously declare the congressional plan invalid and an injunction prohibiting the legislature from administering any elections processes under the plan for 2018.

The defendants are expected to file their answer or motion to dismiss by December 11.

On November 22, the district court stayed the case at least until completion of the trial in Agre v. Wolf.

Key pleadings for Diamond v. Torres can be found here.

Racial Gerrymandering

North Carolina:

In addition to the three North Carolina partisan gerrymandering cases discussed above, two cases contend that North Carolina’s 2011 legislative and congressional maps were racial gerrymanders and an additional racial gerrymandering case is now concluded. 

Covington v. North Carolina

In Covington v. North Carolina, North Carolina asked the Supreme Court to reverse the ruling of a different panel of three federal judges that 28 of the state’s legislative districts were unconstitutional racial gerrymanders.

In August, the panel unanimously agreed with the plaintiffs that the 2011 state map was designed to weaken the influence of black voters by unnecessarily increasing the percentage of black voters in districts where they had previously been successful in electing their candidates of choice.

The panel ordered the state to redraw those districts by March 15 and then hold a special primary and general election in fall 2017. The state submitted an emergency motion to stay the panel’s order to the Supreme Court. The court granted the motion to stay, which put the special elections on hold while the appeal process proceeded.

In June, the Supreme Court affirmed the decision of the trial court and remanded the case to the trial court to reconsider the proper remedy. The trial court denied the plaintiffs’ request for special elections and, on September 7, the state filed the remedial plan adopted by the North Carolina legislature.

The plaintiffs filed objections to twelve of the newly drawn districts in the state’s remedial plan, claiming that four districts are still racial gerrymanders and several districts violate the state constitution.

After holding a hearing on the remedial plans, the court appointed a special master to prepare a report and redraw two senate districts and seven house districts that the court believes may be legally infirm. On November 11, the special master submitted draft plans for the parties to raise objections and make suggestions that might be accommodated in the final plan. The legislative defendants continue to object the court’s authority to appoint a special master. The plaintiffs have offered suggestions to unpair incumbents and a few other proposed alterations.

The special master’s final report and proposed remedial plan are due at the court on December 1. 

Update: The special master filed his recommended plan and an accompanying report on December 1.

Key pleadings for Covington v. North Carolina can be found here.

Dickson v. Rucho

The third pending North Carolina racial gerrymandering case, Dickson v. Rucho, arises from a state court challenge to North Carolina’s 2011 congressional and legislative maps.

In Dickson, the plaintiffs contend that North Carolina’s maps violated state and federal law and were racially gerrymandered. The plaintiffs allege the legislature used a racial proportionality target in order to determine the number of majority-minority districts that would be drawn, and required that each district meet a fixed 50% black voting age population (BVAP) percentage target. The legislature attempted to justify its actions as necessary to avoid violating Sections 2 and 5 of the Voting Rights Act (VRA).

In a 4-2 decision, the North Carolina Supreme Court agreed with the trial court that complying with the VRA was a compelling interest for the legislature when drawing its maps, and ruled that the challenged districts were constitutional.

On appeal, the U.S. Supreme Court remanded for further proceedings. The state court again ruled against the plaintiffs, however, leading them to file a second petition for Supreme Court review, asking the Court to determine whether Section 2 of the Voting Rights Act requires a jurisdiction to draw a racially proportionate number of majority-black legislative districts each with a BVAP of more than 50%.

On May 30, the U.S. Supreme Court vacated the North Carolina Supreme Court’s decision below and remanded the case for further consideration in light of its decision in Cooper v. Harris.

The North Carolina Supreme Court held a hearing in the case on August 28. On September 28, the North Carolina Supreme Court remanded the case to the trial court to determine whether the case is now moot in light of Cooper v. Harris and North Carolina v. Covington, whether there are other issues that require resolution, and whether other relief would be proper. A three-judge panel at the Wake County Superior Court will hold a hearing on these issues on December 15.

Key pleadings for Dickson v. Rucho can be found here.

Cooper v. Harris (formerly known as McCrory v. Harris)

In Cooper v. Harris, North Carolina asked the Supreme Court to reverse a three-judge panel’s ruling that the state’s original congressional map was a racial gerrymander.

The dispute in the case centers on whether Republican lawmakers unconstitutionally packed African American voters in North Carolina’s 1st and 12th Congressional Districts when redrawing the 2011 map. The panel below agreed with the plaintiffs, ruling that the legislature prioritized race over other redistricting principles and packed minorities into districts where African Americans had long previously elected their preferred candidates with success. North Carolina rejected these rulings, contending that it drew one of the districts to comply with the Voting Rights Act and the other for partisan political advantage.

The state appealed to the Supreme Court last summer and the Justices held oral argument in December at the same time they heard argument in Bethune-Hill v. Virginia State Board of Elections (discussed below).

On May 22, the U.S. Supreme Court affirmed the panel’s ruling that the 2011 congressional plan was an unconstitutional racial gerrymander. Since the map had already been redrawn, the Supreme Court’s decision concluded the case.

Key pleadings in Cooper v. Harris can be found here.

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

In Bethune-Hill v. Virginia State Board of Elections, African-American voters are challenging legislative districts that they claim unconstitutionally packed African Americans. 

In proceedings in district court, a panel of three federal judges ruled that race was a predominant factor in the drawing of one of the state’s African-American districts in the 2011 House of Delegates map, but the legislature’s reliance on race was justified because of the state’s need to comply with the Voting Rights Act. The panel held that race was not a primary consideration in the design of 11 other challenged districts despite the legislature’s imposition of a 55% black voting age population floor for those districts. The Supreme Court held oral argument in December 2016.

On March 1, 2017, the Supreme Court ruled in a 6-2 decision that the panel had applied the wrong legal standard when concluding that race had not predominated in the drawing of the 11 challenged districts. The Court held that the panel had improperly required plaintiffs to show, as a precondition, that a challenged district was inconsistent with traditional redistricting principles. According to the Court, plaintiffs in racial gerrymandering cases could establish the predominance through a variety of direct and circumstantial evidence and that, even if a district otherwise complied with traditional redistricting principles, it could still be found unconstitutional if evidence established that race was the predominant factor in its creation. The Court remanded the case to the trial court to evaluate the districts under this standard.  

The three-judge panel held an evidentiary hearing on October 10, 11, and 12 to consider the parties’ claims on remand. Post-trial briefing is expected to conclude by November 22.

Key pleadings for Bethune-Hill v. Virginia State Board of Elections can be found here.

Alabama: Alabama v. Alabama Legislative Black Caucus

Alabama’s legislative map was also the subject of a racial gerrymandering challenge.

A three-judge panel originally rejected claims of racial gerrymandering. But, in 2015, the Supreme Court reversed in a 5-4 decision and instructed the lower court to reconsider whether the new redistricting map drawn by Alabama’s Republican-led legislature diluted the voting strength of the state’s African Americans by packing them into districts. Although Alabama was under an obligation imposed by the Voting Rights Act not to diminish the effectiveness of existing African-American districts, the Supreme Court concluded that the percentage of the black voting age population necessary to accomplish that end could not be determined by fixed rule but instead required a district-by-district analysis.

On remand, the panel ruled in a 2-1 decision that 12 of the 36 challenged districts were unconstitutional racial gerrymanders, but upheld the other 24 districts. The court approved a procedure for the legislature to adopt a new map that corrects the deficiencies in the 12 unconstitutional districts in time for the 2018 elections.

The state legislature approved a remedial redistricting plan on May 19, which it submitted to the court on May 30 in compliance with the court’s order.

On June 13, the Alabama Legislative Black Caucus filed objections to portions of the state legislature’s remedial plans. The Alabama Democratic Caucus, however, said in a separate filing that it was satisfied with the remedial plans and had no further objections.

On October 12, the panel entered an opinion rejecting objections to the remedial plans. The opinion held that Black Caucus lacked standing to object to the specific districts at issue on either racial or partisan gerrymandering grounds. The panel also rejected the objections of proposed intervenors on the grounds that the objections were untimely.

On October 23, the court issued its final judgment, denying objections from the Alabama Legislative Black Caucus and approving the remedial plan. The court terminated the case following the final judgment.

Key pleadings for Alabama v. Alabama Legislative Black Caucus can be found here.

Combined Gerrymandering Theories and/or Voting Rights Act

Georgia:

In Georgia, two parallel cases challenging the Georgia’s 2015 mid-decade state house plan have been consolidated on the grounds that both cases assert claims on closely related legal theories.

Georgia State Conference of the NAACP v. Georgia

On April 24, the Georgia State Conference of the NAACP filed a complaint against the State of Georgia contending that Republican legislators engaged in both racial and partisan gerrymandering when they executed a mid-decade redistricting of the state’s house map. The lawsuit focuses on two state house districts, which the plaintiffs claim Republicans redrew in 2015 to protect white Republican incumbents and deny African-American voters an equal opportunity to elect their candidates of choice. The plaintiffs are asking a three-judge panel to declare these two districts unconstitutional, order them redrawn, and impose preclearance requirements on Georgia for the next ten years.

On August 25, the court entered an order dismissing the plaintiffs' section 2 and partisan gerrymandering claims. The order did not address the plaintiffs' racial gerrymandering claims, which remain pending.

After the court consolidated this case with Thompson v. Kemp, (see below), the court ordered discovery to begin on the racial gerrymandering claims. Discovery is scheduled to conclude on February 16, 2018.

Key pleadings for Georgia State Conference of the NAACP v. Georgia can be found here.

Thompson v. Kemp (formerly known as Brooks v. Kemp)

Eleven Democratic voters filed a lawsuit against the State of Georgia claiming that the 2015 state house plan violates Section 2 of the Voting Rights Act and the Fourteenth and Fifteenth Amendments of the U.S. Constitution. The plaintiffs claim that Republicans in the General Assembly redesigned two state legislative districts – House Districts 105 and 111 – during a mid-decade redistricting to dilute African-American voting strength. The group also contends that Republicans improperly failed to draw a legislative district in the Atlanta area that could have elected an African-American candidate, and that House Districts 105 and 111 are unconstitutional racial gerrymanders

The plaintiffs have asked the court to invalidate the districts and order the creation of at least one additional majority-minority district in the metro Atlanta area.

On November 13, Defendant Brian Kemp filed a motion to dismiss the plaintiffs’ discriminatory intent claim and violation of Section 2 of the Voting Rights Act claim, and raised standing objections. The plaintiffs are excepted to file their reply on November 27.

Key pleadings for Thompson v. Kemp can be found here.

Texas: Perez v. Abbott

Individual voters in Texas, alongside organizations representing African Americans and Latinos, filed a series of lawsuits in 2011 alleging Texas’ congressional and state house plans violated the U.S. Constitution and Section 2 of the Voting Rights Act. Several of these suits were later amended to include claims regarding replacement maps adopted by the Texas Legislature in 2013.

On March 10, 2017, the panel issued a ruling on challenges to the 2011 congressional map. The court’s 2-1 decision held that four districts in the plan were unconstitutional racial gerrymanders and that the creation of TX-35 could not be justified by a need to comply with Section 2 of the Voting Rights Act. The panel also ruled that Texas had unconstitutionally and intentionally packed and cracked minority voters in the Dallas-Fort Worth area and in the creating the configuration of TX-23 in the 2011 congressional plan. However, the court rejected intentional vote dilution claims related to the greater Houston area.

On April 21, the panel issued a 2-1 decision that several districts in the 2011 state house plan were the result of an intentional effort to dilute the voting power of minority communities, in violation of the Fourteenth Amendment and the Voting Rights Act. The court also ruled that several districts violated one-person, one-vote requirements and that one district in San Antonio was a racial gerrymander.

The court has not yet ruled on requests that Texas be placed under Section 3 preclearance.  

The court held trial on the 2013 state house and congressional plans on July 10-15. On August 15, the court issued a ruling on the 2013 congressional map holding that TX-27 and TX-35 violated the Constitution and the Voting Rights Act. In addition, the court found that enactment of the 2013 congressional plan was intentionally discriminatory. On August 24, the panel issued an opinion finding that the 2013 state house plan violated the Constitution and Voting Rights Act and, in addition, purposefully maintained discriminatory features in the 2011 plan.

The court instructed the State of Texas to indicate whether it would hold a special session on redistricting to redraw the congressional and state house plan and, in the event the state chose not to redistrict provisionally, set a remedial hearing for early September.

The state appealed the rulings on the congressional and state house maps. The plaintiffs in the case also filed appeals of the court’s rulings on the congressional and state house maps. The Texas Democratic Party also filed an appeal of the court’s earlier rulings dismissing its partisan gerrymandering claims.

On September 12, the Supreme Court entered orders granting the state’s request to stay the remedial processes. On September 25, the Supreme Court also issued orders denying the plaintiffs’ requests to expedite briefing in the case.

The jurisdictional briefing at the Supreme Court will likely continue over the fall and early winter 2018, with oral argument on the merits possibly in the spring.

Update: Plaintiffs have indicated that they no longer will be pursuing appeals regarding the state house map.

Key pleadings for Perez v. Abbott can be found here.

Virginia: Vesilind v. Virginia Board of Elections

In Vesilind v. Virginia Board of Elections, a group of citizens contend that Virginia’s 2011 legislative districts violate the state’s constitution. The plaintiffs argue that the General Assembly improperly subordinated the constitutional requirement of compactness to achieve other political objectives, such as political advantage and incumbent protection.

On March 31, after the Virginia Supreme Court remanded the case for further proceedings, a Richmond Circuit Court judge issued a ruling upholding the constitutionality of the challenged districts. The plaintiffs appealed that decision to the Virginia Supreme Court, and, on October 24, the court granted their petition of appeal. The appellants’ opening brief is due at the court on December 4.

Arizona: Leach v. Arizona Independent Redistricting Commission

Lawmakers and voters in Arizona challenged the state’s congressional maps for violating the state constitution.

Republican legislators and voters filed their first complaint in 2012, alleging the state’s independent redistricting commission did not follow mandatory constitutional guidelines when it drew the 2011 congressional map. The plaintiffs singled out provisions that require map drawers to comply with Sections 2 and 5 of the Voting Rights Act, evaluate the competitiveness of districts, hold a meaningful public comment period, and consider the legislature’s recommendations.

The court dismissed one count in the complaint for failure to state a claim. After the plaintiffs filed a second amended complaint, the Superior Court of Arizona stayed the case pending the U.S. Supreme Court’s resolution of Ariz. State Legs. v. Arizona Independent Commission, a case in which the constitutionality of the commission itself was at question. After the Supreme Court issued an opinion validating Arizona voters’ right to remove the responsibility for redistricting from the state legislature and delegate it to an independent redistricting commission, the plaintiffs filed a third amended complaint claiming the commission failed to comply with constitutional procedures. The court held oral argument on the parties’ cross-motions for summary judgment on February 10, and took the matters under advisement.  

On March 16, the Superior Court dismissed the challenges. In a hearing held in July, the court formally closed the case.