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Analysis

The State of Redistricting Litigation (November 13, 2019)

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

Partisan Gerrymandering

North Carolina

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 Carolinathrew 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 contended 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 asked the court to declare the maps unconstitutional under the North Carolina Constitution and to block the state from using the current maps in any further elections. The plaintiffs also asked the court to order the state to adopt new plans that comply with the North Carolina Constitution.

Trial took place from July 15 to 26. 

On September 3, 2019, the state court struck down the maps as unconstitutional and enjoined their use in future elections. The court ordered the North Carolina General Assembly to redraw the maps by September 19. On October 28, the court approved the remedial maps drawn by the General Assembly.  On November 1, 2019, the plaintiffs filed a request for expedited appeal with the North Carolina Supreme Court, arguing that two county groupings in the remedial state house plan approved by the Wake County Superior Court remained gerrymandered.

A single judge was appointed to oversee remaining disputes over the confidentiality of the files of Thomas Hofeller, a Republican redistricting consultant who assisted the 2017 gerrymander. On November 4, over 100,000 files pertaining to Hofeller’s redistricting work in states across the country were released from a protective order.  

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

Harper v. Lewis

Fourteen North Carolina voters have filed a lawsuit in state court challenging North Carolina’s current congressional map on partisan gerrymandering grounds. The map in question was redrawn in 2016 after the federal courts—in Harris v. McCrory—invalidated the prior plan for racial gerrymandering. The 2016 map, argue plaintiffs, was drawn with express intent to maximize and entrench Republican party advantage in the state’s congressional delegation, and, as a result, it violates several provisions of North Carolina’s constitution: the Free Elections Clause; the Equal Protection Clause; and the Freedom of Speech and Freedom of Assembly Clauses.

The plaintiffs are asking the court to declare the map unconstitutional under the North Carolina Constitution and to block the state from using the current map in any further elections. The plaintiffs are also asking the court to order the state to adopt a new plan that complies with the North Carolina Constitution.

On October 24, the state court granted a motion to intervene filed by three Republican members of the North Carolina congressional delegation. On October 28, the panel granted the plaintiffs’ motion for preliminary injunction, preventing the use of the 2016 plan in upcoming elections, pending the ultimate resolution of the lawsuit.

On October 31, plaintiffs filed a motion for summary judgment. The panel scheduled a hearing on any motions for summary judgment for December 2, 2019.

Key filings for Harper v. Lewis can be found here.

Brewster v. Berger

Three North Carolina voters – one of whom intends to run for a congressional seat in 2020 – have filed a federal lawsuit concerning the state’s 2016 congressional plan. The plan has been temporarily blocked by a state court in Harper v. Lewis while litigation in that court over a partisan gerrymandering claim continues. The plaintiffs in Brewster argue that the state court’s order temporarily blocking the plan has the potential to harm congressional campaigns and delay the primary elections, in violation of the plaintiffs’ rights under Article I of the U.S. Constitution, as well as the First, Fifth, and Fourteenth Amendments.

On November 1, the plaintiffs in Harper v. Lewis filed a motion to intervene as defendants.

On November 8, the plaintiffs filed a motion for a preliminary injunction that would allow the 2020 elections to proceed under the current map, notwithstanding the temporary block placed on the plan by the North Carolina state court.

Key filings for Brewster v. Berger can be found here.

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

Georgia:

Dwight v. Raffensperger

Individual African-American voters in Georgia contend 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 filings for Dwight v. Raffensperger can be found here.

Alabama

Chestnut 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 have asked the court to declare that the map violates section 2 of the VRA and enjoin the state from using the current map in any further congressional elections. The plaintiffs have also asked the court to require the state to 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. 

Trial took place from November 4 to 8.

Key filings for Chestnut 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 alleged that the district dilutes the votes of African Americans and prevents them from electing their candidate of choice. The plaintiffs also claimed that District 22 could be redrawn to increase the black voting age population from 50.8% to 60%, which would permit them to elect a preferred candidate. 

On February 13, 2019, the court concluded District 22 violated Section 2. The legislature then redrew the district. On August 1, 2019, the Fifth Circuit Court of Appeals affirmed the lower court’s ruling and approved the use of the legislature’s redrawn district for future elections.

The defendants requested a rehearing en banc, and on September 23, the Court of Appeals granted the rehearing. Oral argument is set for January 2020.

Key filings for Thomas v. Bryant 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 that 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 the state to 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, and on September 10, filed a separate motion to dismiss the amended complaint. On March 12, 2019, the court denied the first motion to dismiss. On May 31, 2019, the court denied the second motion to dismiss.

On September 25, the defendant filed a motion to stay proceedings pending the resolution of the Fifth Circuit’s review in Thomas v. Bryant.

On October 7, the defendant filed a third party complaint against U.S. Attorney General William Bar and the U.S. Department of Justice asking the court to either dismiss the case or issue a declaration that the Department of Justice erred in its preclearance review of the 2011 plan.

On October 17, the court granted the defendant’s motion to stay proceedings pending the resolution of the Fifth Circuit’s review in Thomas v. Bryant.

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

Connecticut

National Association for the Advancement of Colored People v. Merrill

The NAACP, along with the NAACP Connecticut State Conference and five Connecticut NAACP members, is 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 that 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 that complies 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. 

On September 24, the U.S. Court of Appeals for the Second Circuit affirmed the district court’s Eleventh Amendment ruling and remanded the case with instructions to the district court to refer future proceedings to a three-judge panel.

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

Challenges to Redistricting Commissions

Michigan:

Daunt v. Benson

On July 30, 2019, 15 individuals filed a federal lawsuit challenging the eligibility requirements for the state’s citizen redistricting commission under the First and Fourteenth Amendments of the U.S. Constitution.

The plaintiffs, who each fall into one or more of the eight categories of people excluded by law from serving on the commission, argue that the eligibility requirements require them to refrain from constitutionally protected activities, in violation of their First Amendment rights to free speech and association. Plaintiffs also claim that the eligibility requirements violate their rights under the Fourteenth Amendment because, among other things, the requirements deny them an opportunity to serve on the commission as a result of their political activity.

The plaintiffs are asking the court to declare the commission unconstitutional and block the Michigan Secretary of State from moving forward with the commissioner selection process.

On July 30, the plaintiffs also filed a motion for preliminary injunction, requesting the court halt commission-related proceedings while litigation is pending.

On August 28, the court allowed Voters Not Politicians, the group that sponsored the proposal to create the redistricting commission, to intervene as defendants. 

On September 11, this case was consolidated with Michigan Republican Party v. Benson.

Both the Michigan Secretary of State and Voters Not Politicians have filed motions to dismiss the case.

Key filings for Daunt v. Benson can be found here

Michigan Republican Party v. Benson

On August 22, 2019, the Michigan Republican Party and five individuals who affiliate with the party filed a federal lawsuit challenging the constitutionality of the state’s independent citizen redistricting commission under the First and Fourteenth Amendments of the U.S. Constitution.

The plaintiffs argue that the commission’s rules violate their First Amendment rights to free speech and association, as well as their right to equal protection under the Fourteenth Amendment. The suit claims multiple aspects of the rules governing the commission are unconstitutional, including the mandated partisan composition of the commission and the eligibility requirements that bar certain people from serving as commissioners. The plaintiffs argue that these rules, among others, discriminate against political parties, as well as against individuals for their partisan affiliations and political activity.

The plaintiffs are asking the court to declare the commission unconstitutional and block the Michigan Secretary of State from enforcing any part of the constitutional amendment through which it was established.

On August 22, the plaintiffs also filed a motion to enjoin commission proceedings pending litigation.

On September 11, this case was consolidated with Daunt v. Benson.

Key filings for Michigan Republican Party v. Benson can be found here.