Democrats face new hurdles in legal fight over redistricting

The fight over redrawing political maps is just ramping up in state legislatures and nonpartisan commissions around the country. But both Republicans and Democrats already are planning for major showdowns in the courts.

For months, Democrats and Republicans have been laying the groundwork for a complex, 50-state legal battle over the once-a-decade process of redistricting. Both parties are preparing for a changed legal climate—where federal courts are newly hostile to claims of unconstitutional partisan gerrymandering and state courts could create a patchwork of rulings. And it will all play out in a tightened timeframe, thanks to pandemic-related delays.

Experts say that adds up a challenging landscape for Democrats, who have in the past won major court victories by proving Republicans deliberately used maps to disenfranchise Democratic voters. Some are predicting far fewer dramatic court interventions, despite plans for a more aggressive strategy.

“There will be a lot of litigation, but in a lot of ways the tools will be less sharp than they used to be,” said Michael Li of the Brennan Center for Social Justice in New York City.

Democrats began filing preemptive lawsuits in April, well ahead of last week’s release of the Census’ detailed population data used to draw the lines for Congress, statehouses and school districts around the country. Still, the most significant lawsuits are yet to come, and probably won’t be filed until states begin to produce maps over the next few months.

After the 2010 redistricting cycle, courts eventually tossed out maps drawn by Republicans in four states. The courts found Republicans improperly used voters’ race and party affiliations to draw lines that favored their candidates—a practice known as gerrymandering. The judges redrew the maps in Florida, North Carolina, Pennsylvania and Texas to give Democrats a better chance of winning congressional seats. Without that intervention, the GOP would currently control the House of Representatives.

But legal experts are skeptical there will be such dramatic reversals in court this time. They note that the conservative majority on the U.S. Supreme Court has already cut off one avenue for legal challenges, ruling that striking down partisan gerrymanders is no longer the role of federal courts. That makes it less likely that courts intervene, experts said.

The one way the dynamic could change is if Congress passes an ambitious election bill known as the For the People Act, which would, among other provisions, outlaw partisan gerrymandering. But the legislation is stuck in the Senate, where Democrats have been reluctant to change rules to eliminate the 60-vote threshold needed to overcome a Republican filibuster blocking the measure.

The longer odds of litigation are particularly ominous for Democrats, who start the process at a significant disadvantage. They control line-drawing in states with 75 House seats, while the GOP controls the process in states with 187 seats.

Democrats “have a lot more incentive to litigate because they would have a lot more to gain,” said Jason Torchinsky, general counsel to the National Republican Redistricting Trust.

Kelly Ward Burton, executive director of the National Democratic Redistricting Committee, which coordinates litigation for that party, agreed that Democrats will be aggressive. “We fully anticipate being in court in the states where Republicans control the redistricting process and where they intend to gerrymander,” she said.

Burton said she’s not too concerned about the Supreme Court’s 2019 ruling that federal courts cannot overturn partisan gerrymandering, because racial gerrymandering remains illegal under federal law. In the states Democrats are most worried about where the GOP controls the process—Florida, Georgia, North Carolina and Texas—party affiliation often runs along racial lines, with Black, Latino and Asian American voters more likely to be Democratic and white voters more likely to be Republican.

But Li warned that’s a double-edged sword. Democrats can argue Republican gerrymanders are racial, rather than partisan, but GOP lawyers can just tell judges they were following the Supreme Court’s direction and looking only at party, not race. “The Supreme Court has created this weird binary—if it’s on the racial side, it’s bad, but if it’s on the partisan side, it’s OK,” he said.

Republicans in the North Carolina legislature—who have complete control over the process because the state’s Democratic governor cannot veto a redistricting bill—have already taken advantage of that dynamic by formally declaring they won’t use racial data in drawing lines.

Tom Saenz, president of the Mexican-American Legal Defense and Education Fund, said he still expects there to be plenty of successful racial gerrymandering cases, especially because populations of voters of color swelled so significantly in the recent census data. The Voting Rights Act still requires the creation of majority-minority districts in areas where a compact legislative district could be drawn that way, and due to the continued growth of several racial and ethnic groups there are more of those places than ever before, Saenz said.

That won’t always help Democrats—Saenz notes that, in some states like California, his group has fought with white Democrats over the creation of majority Latino districts. And he noted another obstacle—the tight timelines of redistricting this decade. The Census data used to draw the maps was released six months late due to COVID-19 and legal disputes over how the Trump administration ran the survey. That means courts may only have a few weeks to act before the 2022 elections formally kick off with deadlines to file to run in state primaries. Often, redistricting cases take months if not years to decide.

“We have to engage in triage,” Saenz said. “In some cases we may have to allow an election to go by with bad lines.”

Though several lawsuits have already been filed, they’re mainly opening salvos trying to gain advantage before line-drawing begins in earnest. Democrats have sued in Louisiana, Minnesota and Pennsylvania, arguing that deadlock is inevitable between those states’ GOP-controlled legislatures and Democratic governors, so courts need to get ready to draw lines. Republicans are filing public records requests to see if they can challenge the way the Census calculated people living in college dorms and other large residential areas.

Still, the only significant litigation so far has come in Illinois, where the Democratic-controlled state legislature redrew its own state maps without waiting for the Census data so as not to miss a legal deadline and have redistricting power handed to the courts. Republicans and civil rights groups are suing to overturn those maps.

Though federal courts will no longer be able to strike down gerrymanders due to reliance on partisanship, state courts remain free to. The willingness of state judges to do that may depend on their party, legal analysts say. “It depends on who your state judges are,” said Edward Foley, a law professor at The Ohio State University.

In the Southern states where redistricting legal battles are likely to run hottest, the state supreme courts are largely controlled by Republicans. Florida’s was Democratic in the previous decade and overturned the GOP redistricting plan then, but it is now majority Republican. North Carolina’s, once solidly Democratic, is now more evenly divided.

“Absent congressional action it’s going to be a decade of extreme gerrymandering,” Foley said. “I doubt that you’ll get much judicial relief.”