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Analysis

The State of Redistricting Litigation (March 2017 edition)

The first two months of 2017 have brought an appeal in a major Wisconsin partisan gerrymandering case, a trial date in partisan gerrymandering cases in North Carolina, and a ruling reversing the decision of the trial court in a Virginia racial gerrymandering case. Read the round up of where these and other key redistricting cases currently stand.

April 10, 2017

 

The first two months of 2017 have brought an appeal in a major Wiscon­sin partisan gerry­man­der­ing case, a trial date in partisan gerry­man­der­ing cases in North Caro­lina, and a ruling revers­ing the decision of the trial court in a Virginia racial gerry­man­der­ing case.

A round up of where these and other key redis­trict­ing cases currently stand:

Partisan Gerry­man­der­ing

Wiscon­sin: Whit­ford v. Gill

In Wiscon­sin, a land­mark partisan gerry­man­der­ing ruling looks to be head­ing to the U.S. Supreme Court.

Last Novem­ber, a panel of three federal judges declared that the state house 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 or purpose, had a discrim­in­at­ory effect, and if there were some other legit­im­ate reason, like the natural polit­ical geography of the state, that the maps had a polit­ical 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 sixty of the ninety-nine Assembly seats.

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 elec­tion cycles.

On Janu­ary 27, the panel rejec­ted the state’s request to stay a remedy pending Supreme Court review and ordered the Wiscon­sin Legis­lature to put a remedial redis­trict­ing plan in place by Novem­ber 1, 2017 for the 2018 elec­tions. The panel order allowed the legis­lature to take the lead in draft­ing the remedial map over the plaintiffs’ objec­tions, conclud­ing that the legis­lature is “the best insti­tu­tion ‘to identify and then recon­cile tradi­tional state policies within the consti­tu­tion­ally mandated frame­work of substan­tial popu­la­tion equal­ity.’”

Wiscon­sin filed an appeal to the Supreme Court on Febru­ary 24, 2017. If, as expec­ted, the Supreme Court decides to hear the case, argu­ment would be in the Court’s 2017–2018 term.

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

Mary­land: Benisek v. Lamone

A chal­lenge to alleged partisan gerry­man­der­ing is also pending in Mary­land, where a federal lawsuit target­ing the redraw­ing of Maryland’s Sixth Congres­sional District will likely go to trial later this year.

In Benisek v. Lamone, the plaintiffs argue that the 2011 congres­sional map adop­ted by the Demo­cratic-controlled legis­lature 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.

Discov­ery is currently under­way and the current expect­a­tion is that the panel will hold trial in the case late this summer or early fall.

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

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.

Brief­ing asking the Court to hear the case has been completed, but the Court will likely wait to decide whether to take the appeal until it has issued its opin­ion in the Cooper racial gerry­man­der­ing appeal (see below).

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 currently 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 March 3, 2017, and set the start of a joint trial in the cases for June 26, 2017.

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

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

Racial Gerry­man­der­ing

North Caro­lina 

In addi­tion to the three North Caro­lina partisan gerry­man­der­ing cases discussed above, three cases contend that North Caro­lin­a’s 2011 legis­lat­ive and congres­sional maps were racial gerry­manders. 

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

In Cooper v. Harris, North Caro­lina is asking 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 rejects 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).

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

North Caro­lina v. Coving­ton

In North Caro­lina v. Coving­ton, North Caro­lina also is asking 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 puts the special elec­tions on hold while the appeal process proceeds.

A decision by the high court on whether to hear the state’s appeal is expec­ted before the end of June. 

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

Dick­son v. Rucho

The third North Caro­lina racial gerry­man­der­ing appeal currently pending before the Supreme Court, 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%. The peti­tion is pending with the Court.

Key plead­ings for Dick­son v. Rucho 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.

Update: On March 30, the plaintiffs filed a motion for exped­ited brief­ing in connec­tion with imple­ment­a­tion of a new map for the House of Deleg­ates elec­tion set to take place in Novem­ber. The court has yet to determ­ine the brief­ing sched­ule. 

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 also is 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 has ordered the legis­lature to adopt a new map correct­ing the defi­cien­cies in the 12 uncon­sti­tu­tional districts in time for the 2018 elec­tions.

Alabama and the plaintiffs will need to decide by April 20 whether to appeal a second time to the Supreme Court. In the mean­time, the panel has approved an agreed proced­ure for adopt­ing remedial maps for the 2018 elec­tion.

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

Other Cases

Texas: Perez v. Texas

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.

The panel has yet to rule on claims related to the 2011 state house map or on claims related to the maps currently being used by Texas. The court also has not yet ruled on requests that Texas be placed under preclear­ance cover­age through Section 3 of the Voting Rights Act.

Update: The plaintiffs filed a motion to enjoin the 2013 congres­sional map and proposed a schedul­ing order to ensure a remedial map is in place in time for the 2018 elec­tions. 

Key plead­ings for Perez v. Texas 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 of 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.

In Septem­ber, the Virginia Supreme Court remanded the case for further proceed­ings, and a trial is set to begin on March 13.

Arizona: Leach v. Arizona Inde­pend­ent Redis­trict­ing Commis­sion

Lawmakers and voters in Arizona are chal­len­ging the state’s congres­sional maps for consti­tu­tional defi­cien­cies under 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. 

Update: On March 16, the Super­ior Court dismissed the chal­lenges. The plaintiffs have not yet said if they will file an appeal.