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Analysis

The State of Redistricting Litigation (October 14, 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.

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. The General Assembly submitted maps to the court, and on September 27, plaintiffs filed objections to the proposed remedial house plan. The court and its appointed referee are currently reviewing the remedial plans.

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. The files are currently designated as confidential until October 27, 2019.

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. The plaintiffs contend that the 2016 remedial congressional map 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 enjoin 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 9, three Republican members of the North Carolina congressional delegation filed a motion to intervene as defendants.

The court has scheduled a hearing on the proposed motion to intervene and the plaintiffs’ motion for a preliminary injunction of the 2016 plan for October 24.

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

MichiganLeague 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.

Two sets of intervenors - the Republican members of Michigan’s congressional delegation and a group of Michigan state legislators - were 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 then-Michigan Secretary of State Ruth Johnson’s  motion to dismiss the suit 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 Jocelyn Benson's attempt to settle the case. 

Trial took place from February 5 to February 7, 2019. On April 25, 2019, the court struck down the challenged districts and ordered the legislature to draw remedial maps for the congressional, state house, and state senate elections. The court also ordered that special elections be held in 2020 for any state senate districts either enjoined by the decision or modified by the remedial plan.

On April 30, 2019, the two sets of intervenors appealed the decision to the U.S. Supreme Court. On May 24, the U.S. Supreme Court granted the intervenors' applications to stay the remedial mapdrawing process pending the appeal.

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

OhioOhio A. Philip Randolph Institute v. Householder

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

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

The plaintiffs 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.

On August 16, the panel permitted members of the Republican congressional delegation, Ohio voters, and Republican party organizations to intervene in the case. The case went to trial on March 4, 2019.

On May 3, 2019, the court struck down the congressional plan and ordered the legislature to draw a remedial map by June 14. 

On May 6, 2019, both the defendants and intervenors appealed the lower court’s decision to the U.S. Supreme Court. On May 24, the Supreme Court granted the defendants' and the intervenors' applications to stay the remedial mapdrawing process pending the appeal.

On October 7, the Supreme Court vacated the lower court’s judgment and remanded the case for further proceedings in light of the Court’s ruling in Rucho v. Common Cause dismissing partisan gerrymandering claims as non-justiciable by federal courts.

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

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

GeorgiaDwight 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.

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 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 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. 

The court has set a trial date for November 4, 2019. 

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

MississippiThomas 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.

On September 23, the Fifth Circuit granted the defendants’ request for a rehearing en banc. The rehearing is tentatively scheduled for January 2020.

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

LouisianaJohnson 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.

Key filings 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, 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.