Redistricting Round-Up: April Brings Flurry of Litigation Action

April 26, 2016

Flurry of Redistricting Litigation

April has been an active month for redistricting litigation. The U.S. Supreme Court handed down two unanimous decisions upholding longstanding redistricting practices, first early this month in Evenwel v. Abbott and again just days ago in Harris v. Arizona Independent Redistricting Commission.  Meanwhile, in Wisconsin a federal three-judge panel rejected the state’s motion for summary judgement in a major partisan gerrymandering challenge, setting the stage for a trial in May.

Evenwel v. Abbott (Texas)

On April 4, the Supreme Court unanimously upheld the “one person, one vote” principle. Writing for the Court in Evenwel v. Abbott, Justice Ruth Bader Ginsberg’s opinion echoed research from the Brennan Center’s amicus brief to affirm the longstanding practice of drawing districts based on total population. Had the high court embraced the challengers’ position, it would have resulted in every state legislative map in the United States becoming presumptively unconstitutional.

The Evenwel decision confirms that legislators represent all people, including children and other nonvoters. In doing so, said Janai Nelson of the NAACP Legal Defense and Education Fund, the Court shut the door on “political manipulation, racial discrimination, and the reversal of a hard-fought march toward the inclusion of marginalized groups.” Kathay Feng of Common Cause highlighted a similar theme in her discussion of why the Court “had to reject Evenwel’s kooky argument.”

Not everyone saw the decision as a victory, however. The Heritage Foundation’s Hans von Spakovsky and Elizabeth Slattery argued that the Court’s decision unfairly distributes voting power, giving urban areas inflated control over state legislatures. Similarly, Ilya Shapiro of the Cato Institute said the Court’s misguided decision does nothing to address the “elephant in the voting booth,” namely that voters have an unequal say in elections depending on where they live. Despite the Court’s ruling, the commentators urged state lawmakers to take matters into their own hands by drawing districts based on voter population, a practice the Court expressly declined to address.

Still, as the Brennan Center’s Michael Li noted, the Evenwel decision “is a big win for fair representation.”

Harris v. Arizona Independent Redistricting Commission (Arizona)

The Supreme Court issued a second unanimous decision in Harris v. Arizona Independent Redistricting Commission, another case argued the same day as Evenwel. Justice Stephen Breyer’s opinion reaffirms that compliance with the Voting Rights Act is a legitimate factor for states to consider when redistricting. The decision also reiterates the principle that population deviations between state legislative districts are generally acceptable as long as they are less than 10 percent. Plaintiffs can still challenge district plans with deviations of 10 percent or less, but they will be found impermissible “only rarely, in unusual cases.”

Whitford v. Nichol (Wisconsin)

On April 7, a federal three-judge panel in Wisconsin unanimously rejected the state’s motion for summary judgment. This ruling allows the partisan gerrymandering claims in Whitford v. Nichol to move forward to trial, which is set to begin May 23.

The challenge will test a new partisan gerrymandering standard called the “efficiency gap,” which was developed by scholars Nicholas Stephanopoulos and Eric McGhee. The theory essentially measures the number of votes that are “wasted” on each party in an election to determine whether one party gained an unfair systematic advantage over the other.

The Court also rejected the state’s attempt to have the case thrown out last December, making this the first partisan gerrymandering case in more than three decades to survive a motion to dismiss.

Other News and Analysis

  • A federal court in Florida rejected U.S. Rep. Corrine Brown’s (D) lawsuit challenging the redrawing of her congressional district, finding that Brown did not sufficiently prove her claim that the new district reduces the influence of minority voters.
  • Reform efforts in Ohio were delayed once again when the Constitutional Modernization Commission declined to vote on a proposal to fix congressional redistricting at its April 14 meeting. The vote was initially scheduled for February and has been delayed twice.
  • Gov. Pete Ricketts (R- Nebraska) vetoed a reform bill last week because he claimed it would make the redistricting process more susceptible to “political cronyism.” State Sen. John Murante (R), a primary sponsor of the bill, said he will not attempt to override the veto.
  • Maryland Gov. Larry Hogan (R) and state Sen. Jamie Raskin (D) met recently to discuss a redistricting reform proposal. The so-called “Potomac compact” would allow an independent redistricting commission to redraw congressional districts in Democrat-heavy Maryland and Republican-controlled Virginia to ensure neither party gains a systematic advantage. The measure would require buy-in from Virginia lawmakers as well. 
  • In Perez v. Texas, the  federal three-judge panel instructed the parties that they may submit supplemental briefs discussing “the effect, if any, that the Harris decision has” on the case. Briefs are due on May 10.
  • Political scientists at North Carolina State University argue that partisan gerrymanders may not be as effective as people think. States with rapidly changing demographics (such as North Carolina) make it extremely difficult to create districts that will reliably elect candidates of a particular party consistently over an entire decade.