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Maps in Flux: Ongoing Redistricting Litigation

While the 2016 election will be held on the current maps, changes could be ahead for future cycles as a result of ongoing litigation.

  • Alexis Farmer
August 22, 2016

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.