The State of Redistricting Litigation (April 16, 2019)

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

April 16, 2019

Partisan Gerrymandering

Wisconsin:

Gill v. Whitford

A landmark appeal from Wisconsin in the Supreme Court’s 2018-19 term gave the high court its first opportunity in over a decade to rule on the constitutionality of partisan gerrymandering. However, on June 18, 2018, the Court vacated the opinion of the district court, holding that the plaintiffs had not established that they had standing to bring the case, and remanded the case to the district court for further proceedings. 

The suit began in 2015, when Democratic voters in Wisconsin challenged their state’s Republican-drawn 2011 general assembly plan. A panel of three federal judges declared the plan 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.

Wisconsin filed an appeal to the Supreme Court, which also granted the state’s request to stay the remedial map-drawing process while it considered the case.

On June 18, 2018, the Supreme Court vacated the district court’s decision. In a majority opinion by Chief Justice Roberts, the Supreme Court declined to weigh in on the merits of the plaintiffs’ constitutional claims and instead vacated the decision on standing grounds, remanding the case to the district court for reconsideration of standing and other further proceedings. On remand, the district court permitted the Wisconsin State Assembly to intervene as defendants in the case.

On January 23, 2019, the court granted in part the State Assembly's motion to stay the case, postponing trial until the U.S. Supreme Court rules on partisan gerrymandering appeals from North Carolina and Maryland. Trial is now set for July 15, 2019. 

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

Maryland: Benisek v. Lamone

Individual Republican voters in Maryland are challenging the state’s congressional map as an unconstitutional partisan gerrymander, focusing their claims on the configuration of the Sixth Congressional District.

According to the plaintiffs, lawmakers intentionally used information about voters’ histories and party affiliations to move large numbers of Republican voters out of the state’s Sixth Congressional District and move large numbers of Democratic voters in, thus flipping the district from a reliable Republican seat into a safe Democratic one. The plaintiffs claim the resulting plan violates their right to representation guaranteed by the First Amendment’s freedom of political association and Article I, Section 2 of the U.S. Constitution.

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.

The plaintiffs then requested a preliminary injunction blocking use of the maps in the 2018 elections. The panel denied the plaintiffs’ request for an injunction on August 24, 2017, and the plaintiffs filed an appeal.

On June 18, 2018, the Court affirmed the district court's decision not to enjoin the map, holding that the district court's denial was not abuse of discretion. 

Back before the district court, on November 7, 2018, the three-judge panel granted the plaintiffs' request to permanently enjoin the 2011 plan and ordered new maps be drawn for the 2020 elections. 

On January 4, 2019, the Supreme Court agreed to hear the defendants' appeal, with oral argument set for March 26. 

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

North Carolina:

In North Carolina, three separate cases have challenged the state’s 2016 remedial congressional plan, which the North Carolina legislature adopted to replace an earlier plan that the courts struck down as a racial gerrymander. Another case challenging North Carolina's state legislative districts is pending in state court. 

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

Good government groups, the North Carolina Democratic Party, and individual voters are also challenging North Carolina’s 2016 remedial congressional map in a pair of partisan gerrymandering cases.  

The Common Cause plaintiffs—Common Cause, the North Carolina Democratic Party, and Democratic voters from each of North Carolina’s 13 congressional districts—and the League of Women Voters plaintiffs—the League of Women Voters of North Carolina and 12 individual plaintiffs from 6 of the state’s districts—each sued separately to enjoin North Carolina’s current congressional map based on First Amendment, Fourteenth Amendment, and Article I violations.

The district court consolidated the two cases for trial on March 3, 2017.

On January 11, 2018, the district court struck down the map as an unconstitutional partisan gerrymander, blocked the state from using the plan for future elections, and appointed a special master to redraw the map. However, the legislative defendants appealed, and the Supreme Court stayed the district court’s order pending appeal. On June 25, 2018, the Supreme Court declined to set the case for argument and instead remanded the case for reconsideration in light of its Whitford opinion.

On August 27, the three-judge panel issued a new opinion, ruling for the plaintiffs on all of their claims: the 14th Amendment Equal Protection Clause, the First Amendment, and Article I of the Constitution. The parties are currently briefing remedies issues.

On September 12, the legislative defendants secured a motion to stay pending Supreme Court review. 

On January 4, 2019, the Supreme Court agreed to hear the legislative defendants' appeal, with oral argument set for March 26. 

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

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

Common Cause v. Lewis

Common Cause, the North Carolina Democratic Party, and a group of voters filed a lawsuit on November 13, 2018, in North Carolina Superior Court, challenging the state's legislative maps on partisan gerrymandering grounds. The legislature drew these maps in 2017 after the federal courts—in Covington v. North Carolina threw out the prior plans for racial gerrymandering. According to the plaintiffs, the Republican legislative leadership created the 2017 plans to entrench lasting Republican majorities. The plaintiffs contend that the new plans violate several provisions of North Carolina’s constitution: the Equal Protection Clause; the Free Elections Clause; and the Freedom of Speech and Freedom of Assembly Clauses.

The plaintiffs are asking the court to declare the maps as unconstitutional under the North Carolina Constitution and to enjoin the state from using the current maps in any further elections. The plaintiffs are also asking the court to order the state to adopt new plans that comply with the North Carolina Constitution.

On December 14, 2018, the defendants removed the case from state court to a federal district court. On January 2, 2019, the district court ordered the case be remanded, a decision both parties appealed to circuit court. While the appeals are pending, the state court has set a trial date for July 15, 2019.

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

Michigan:

League of Women Voters of Michigan v. Benson

The League of Women Voters of Michigan and eleven Democratic voters filed a lawsuit in federal district court contending that Michigan's 2011 state legislative and congressional maps are unconstitutional partisan gerrymanders in violation of the First and Fourteenth Amendments. The plaintiffs argue that the legislature unconstitutionally marginalized Democratic constituencies by cracking and packing Democratic voters while efficiently spreading Republican voters across safe Republican districts.

The plaintiffs have asked the court to strike down the maps and establish new maps if the legislature does not pass a constitutional redistricting plan.

The defendant, Michigan Secretary of State Ruth Johnson, asked the court to stay proceedings in the case pending the Supreme Court’s decisions in Gill v. Whitford and Benisek v. Lamone , which the court denied. The defendant also argued that the court should dismiss the plaintiffs’ claims for lack of standing if the court does not stay the proceedings.  

Two sets of intervenors - the Republican members of Michigan’s congressional delegation and a group of Michigan state legislators - have been permitted to intervene after successful appeals to the United States Court of Appeals for the Sixth Circuit. 

On May 16, 2018, the court granted the defendant's motion to dismiss for lack of standing in part and denied it in part, dismissing the plaintiffs' statewide claims but holding that the plaintiffs had standing to bring district-specific claims.

On February 1, 2019, the court rejected Secretary of State Benson's attempt to settle the case. 

On February 4, 2019, the U.S. Supreme Court denied the congressional and legislative intervenors' attempt to stay trial. Trial took place from February 5 to February 7, 2019. 

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

Ohio:  Ohio A. Philip Randolph Institute v. Householder

The Ohio A. Philip Randolph Institute, the League of Women Voters of Ohio, and a group of Ohio Democratic residents filed a federal lawsuit challenging the 2011 congressional map as an unconstitutional partisan gerrymander on First Amendment, Fourteenth Amendment, and Article I grounds.

The plaintiffs argue that Republicans, who controlled the redistricting process in 2011, drew a map designed to give the party an unfair partisan advantage, drawing twelve reliable Republican districts and packing Democratic voters into four districts. The plaintiffs contend the map disfavors Democratic voters based upon their political affiliation and entrenches partisan advantage.

The plaintiffs have also pointed to public support for redistricting reform as relevant to their request for the maps to be enjoined. On May 8, 2018, Ohioans approved Ballot Issue 1—a reform measure that will govern the congressio­nal redistricting process in 2021—with nearly 75% of the vote.

The plaintiffs are asking the court to have the congressional map redrawn before the 2020 elections.

On August 15, the court denied the defendants' motion to dismiss, permitting the plaintiffs to proceed on all of their claims. 

On August 16, the panel permitted members of the Republican congressional delegation, Ohio voters, and Republican party organizations to intervene in the case.

On February 8, 2019, the court denied the defendants’ motion to stay the trial. Trial took place from March 4 to March 13, 2019.

Key pleadings for Ohio A. Philip Randolph Inst. v. Householder can be found here.

Racial Gerrymandering

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. 

The district court 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 three-judge 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.

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.  

On June 26, 2018, the district court ruled in a 2-1 decision that the eleven challenged state house districts were racially gerrymandered. The court ordered the General Assembly to create a remedial map by October 30, 2018. 

On July 6, the defendants appealed the decision to the U.S. Supreme Court. On January 8, 2019, the Supreme Court declined the defendants' request to halt the remedial map-drawing process pending the appeal. Oral argument took place on March 18, 2019.

On October 18, the court appointed a special master to assist with the remedial map drawing process. On February 14, 2019, the court ordered that the special master’s plan go into effect in time for the 2019 elections. The defendants appealed the decision on February 25, 2019.

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

Combined Gerrymandering Theories, Voting Rights Act Claims, and Prison Gerrymandering Claims

Georgia:

Dwight v. Raffensperger

Individual African-American Georgia voters allege that the state’s 2011 congressional plan violates section 2 of the Voting Rights Act (VRA). The suit argues that instead of creating an additional majority-minority district in response to the significant minority population growth between 2000-2010, the legislature cracked “politically cohesive and geographically compact” African-American communities in and around the Twelfth Congressional District to minimize their political influence. In doing so, the plaintiffs allege, the map dilutes African-American voting strength and has the effect of denying African Americans the equal opportunity to elect candidates of their choice.

The plaintiffs are asking the court to declare the plan violates section 2 of the VRA, enjoin the state from using the map for future elections, and order the state to adopt a new plan that complies with section 2 of the VRA, including creation of a district in southeastern Georgia where African Americans have the opportunity to elect preferred candidates.

Key pleadings for Dwight v. Crittenden can be found here.

Texas: Abbott v. Perez

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 20, 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, 2017. On August 15, 2017, 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, 2017, 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 2017.

The state appealed the rulings on the congressional and state house maps and requested a stay of the remedial process. The Texas Democratic Party and Quesada plaintiffs also filed appeals of the court's earlier rulings dismissing its partisan gerrymandering claims.

The Supreme Court granted the state’s request to stay the remedial processes and agreed to hear the State of Texas' appeals of rulings on the congressional and state house plans. On January 16, 2018, the Court dismissed the Quesada plaintiffs' and Texas Democratic Party's partisan-gerrymandering appeal.

On June 25, 2018, in a 5-4 decision, the Court reversed the lower court’s findings that the state legislature intentionally discriminated against Latino and African-American voters in adopting the 2013 congressional and state house maps. In addition, the Court reversed findings of violations of the Voting Rights Act and racial gerrymandering, holding that only one of the challenged state house districts, HD90, was an unconstitutional racial gerrymander.

On August 30, the panel deferred the redrawing of the boundaries of HD90 to the legislature. The legislature, however, did not introduce a remedial plan by the court-set deadline, and the panel will now consider remedial plans submitted by the parties.

Parties have also completed briefing on the plaintiffs’ request for bail-in under Section 3 of the Voting Rights Act.

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

AlabamaChestnut v. Merrill

Eight Alabama voters filed a federal lawsuit alleging that Alabama’s 2011 congressional map violates section 2 of the Voting Rights Act (VRA). The plaintiffs argue the map packs African-American voters into the Seventh Congressional District and significantly cracks African-American voters between three other congressional districts, with the effect of diluting African-American voting. The suit alleges that the African-American population in the three “cracked” congressional districts is sufficient to form a second majority-minority district.

The plaintiffs are asking the court to declare the map violates section 2 of the VRA and enjoin the state from using the current map in any further congressional elections. The plaintiffs are also asking the court to require that the state adopt a new congressional plan that includes a second majority-minority district.

On March 27, 2019, the court ruled that the plaintiffs would no longer be able to seek to enjoin the current map or to have a new map adopted. The plaintiffs will still be able to seek a declaration that the map violates Section 2 of the VRA. 

On April 16, 2019, the court set a trial date for November 4, 2019. 

Key pleadings for Chestnut v. Merrill can be found here.

Louisiana: Johnson v. Ardoin

Nine African-American voters in Louisiana are challenging the state’s 2011 congressional plan as a violation of section 2 of the Voting Rights Act (VRA). Plaintiffs allege that the legislature packed African-American voters into the Second Congressional District and split African-American voters among three other congressional districts, rather than unifying them to create a second majority-minority district, thereby having the effect of diluting their voting strength and political influence.

The plaintiffs are asking the court to declare the map violates section 2 of the VRA and enjoin the state from using the current map in any further congressional elections. The plaintiffs are also asking the court to require that the state adopt a new congressional plan that includes a second majority-minority district.

On July 31, 2018, the Secretary of State filed a motion to dismiss the plaintiff's complaint.

Key pleadings for Johnson v. Ardoin can be found here.

ConnecticutNational Association for the Advancement of Colored People v. Merrill

The NAACP, along with the NAACP Connecticut State Conference and five Connecticut NAACP members are challenging Connecticut’s 2011 state legislative maps because of unconstitutional prison gerrymandering. The plaintiffs claim that counting prisoners as residents of their prisons as opposed to their last known home addresses violates the “one person, one vote” principle.

The plaintiffs are asking the court to declare the map violates the Fourteenth Amendment and enjoin the state from using the current map in any further state legislative elections. The plaintiffs are also asking the court to require that the state adopt a new plan compliant with the Constitution.

On February 15, 2019, the court denied the defendants' motion to dismiss. On March 7, 2019, the defendants appealed the decision and requested a stay pending that appeal. 

Key pleadings for National Association for the Advancement of Colored People v. Merrill can be found here.

Mississippi: Thomas v. Bryant

Three African-American voters from Mississippi State Senate District 22 filed a federal lawsuit challenging the district under Section 2 of the Voting Rights Act. Plaintiffs allege that the district dilutes the votes of African Americans and prevents them from electing a candidate of choice. The plaintiffs also claim that District 22 could be redrawn to increase the black voting age population from 50.8% to 60%, which would rectify their ability to elect a preferred candidate. 

Plaintiffs have requested that the district court enjoin the map for future elections and order a redrawn district. 

On February 13, 2019, the court concluded District 22 violated Section 2 of the Voting Rights Act and provided the legislature the opportunity to redraw the district. On March 15, 2019, the defendants secured a stay of the final decision until April 3, 2019.

Key pleadings for Thomas v. Bryant can be found here.