The battle over the once-a-decade realignment of legislative and congressional districts is underway across the country even before new maps have been drawn, with lawsuits filed in nearly a dozen states, signaling how intense the fight for partisan power in the states and Congress will be in the coming year.
Many of the early moves have been made by Democrats, who are scrambling to make up a historic deficit when it comes to the bare-knuckle redistricting process that Republicans used in 2011 to cement their dominance at the state and national level.
At stake is how voters will be divided into individual districts for the next decade, and which party will emerge with the greatest advantage. Fierce fighting over the maps could delay that process in many states — potentially upending 2022 campaigns midstream.
The National Democratic Redistricting Committee, an advocacy organization founded by former attorney general Eric Holder, filed lawsuits in Louisiana, Minnesota and Pennsylvania in April, as soon as the U.S. Census Bureau released data indicating which states would gain and lose congressional seats. The suit seeks to ensure how courts play a role in the process, part of an early effort to shape the rules that will govern how maps are drawn.
“There is heightened attention and awareness of the damaging effects of gerrymandering, and you’re seeing an increase of litigation as a result of the voter suppression and other election laws passed by Republicans as they attempt to hold on to power,” said Kelly Ward Burton, the group’s president. “We are fighting for fair maps that reflect the will of the voters, and if Republicans attempt to ignore this and gerrymander their way to power, we will be ready to sue.”
Other lawsuits over the map-drawing procedures have popped up in other states, providing an early glimpse at efforts on the left to blunt the GOP advantage.
In Wisconsin, for example, a citizens group filed a complaint against Republican state legislators over their decision to hire private attorneys for possible lawsuits related to redistricting. The Wisconsin Supreme Court last month sided with the GOP.
“Redistricting has become entrenched warfare where lawmakers exert enormous effort and expense to gain an inch,” said Michael Li, senior counsel at Brennan Center for Justice, a public policy institute that is part of New York University Law School. “Lawmakers have always attempted to game redistricting, but we’re seeing a lot of new tactics this decade because so much is on the line.”
The process of setting district boundaries this year comes amid a national fight over voting rules — an issue that Democrats hope will bring new energy and resources to the arcane redistricting process.
Voting rights advocates warn that the redistricting battles could play into future efforts to challenge election results, as then-President Donald Trump attempted to do in 2020, by shaping who is in control of state legislatures and Congress when the 2024 presidential results are certified.
Democrats were caught off-guard a decade ago when Republicans, who had shored up their majorities in state legislatures during the 2010 tea party wave, used their power to shape GOP-friendly districts in battleground states such as Pennsylvania, Michigan, Wisconsin, North Carolina and Ohio. The new congressional districts gave Republicans the power to stymie much of then-President Barack Obama’s policy agenda.
Republicans say they plan to make the most of their current dominance.
Adam Kincaid, the executive director of the National Republican Redistricting Trust, has said his group is preparing for “a decade of even more litigation,” and to challenge maps it views as unfairly tilted to the left.
“There will definitely be more redistricting litigation this decade,” he said. “Republicans will be playing more defense than offense because we have significantly more redistricting control than Democrats.”
Every state has different criteria for drawing the maps for state legislatures and House seats. Since the last redistricting in 2011, several states have moved away from a partisan legislative process and delegated the work to commissions, though some serve only in an advisory role and their maps are not binding.
Of the 37 states where elected officials will ultimately decide the shape of congressional maps this year, 20 are fully in Republican control, eight are held by Democrats and nine are split.
Redistricting is historically an opaque process, despite its massive ramifications for U.S. politics. Democrats’ tenuous hold on the U.S. House has raised the stakes even higher —Republicans need to flip only five seats to take back the House and block the Biden White House’s legislative agenda in the second half of his first term.
Democrats are already at a disadvantage because of population shifts. Several GOP-controlled states, including Texas, Florida and Georgia, are gaining seats in Congress, while Democratic-run New York, Illinois and California are losing them, according to census data released earlier this year. (A more detailed set of numbers is expected by mid-August.)
In 2011 redistricting, Republicans who had won control of a majority of state legislatures a year earlier used their power to pack Democratic voters into fewer districts and protect their GOP majority.
“The gerrymandering that we saw last cycle was unprecedented in their sophistication and how long they endured and defined the last decade of our politics. The Republicans were able to dominate the process without Democrats fully able to understand what happened until it was done,” said David Daley, an author who has written two books on redistricting.
But, Daley said, “that won’t be the case this time. Every twist and turn in every state is going to be contentious and chaotic and contested.”
The Democratic group headed by Holder argued in its suits that in Louisiana, Minnesota and Pennsylvania — three states with Republican legislatures and Democratic governors — the mapmaking will cause gridlock and that courts should be prepared to draw the lines.
“These lawsuits are just the first of many steps we will be taking in the coming weeks and months to ensure the redistricting process is not subverted by politicians who want to hold onto power at the expense of fair representation,” Holder said in a statement when the suits were filed this spring.
In Wisconsin, Democrats tried to argue that Republican state lawmakers should not be allowed to use public funds to fight for maps that would benefit them. The decision by the state Supreme Court to side with the Republicans could signal trouble for Democrats in Wisconsin, where the courts could have final say over the maps if the Republican legislature and the Democratic governor can’t agree on the lines.
The case “was a preliminary skirmish before litigation over Wisconsin’s 2021 redistricting heats up. We believe that it is an improper, private purpose, advancing narrow, partisan aims instead of the legislature’s institutional interests; the legislature has no constitutional authority to spend taxpayer dollars for private gain,” said Doug Poland, a Wisconsin-based election law attorney representing the plaintiffs in the case. “Of course, the legislature could avoid all of the litigation and attendant drama by following a transparent process to enact fair, representative districts. Unfortunately, every indication suggests they will do the opposite.”
When the lawsuit was filed in March, Wisconsin Assembly Speaker Robin Vos, R, the named defendant, called it “frivolous” and “yet another lawsuit filed by a liberal attorney.”
The legal landscape has changed since 2011, leaving fewer safeguards. The redistricting conflicts this decade will be the first since the Supreme Court struck down a key protection in the 1965 Voting Rights Act that required states with a history of racial discrimination to receive clearance from the U.S. Justice Department for changes to election laws, including redrawing maps. This is also the first redistricting since the Supreme Court in 2019 ruled that federal courts would not take on partisan gerrymandering cases, leaving those fights to play out in state courts.
The contentious process is further complicated by the delayed and compressed timeline for map-drawing forced by the coronavirus’s impact on last year’s census. States will not receive population information needed to draw districts until next month — nearly six months later than normal.
Some states may not agree on district boundaries until after campaigning for the 2022 election is underway, creating a logistical nightmare for candidates who want to run for Congress or state legislatures, but who won’t know who their voters will be until after the filing deadline.
Some states have filed lawsuits to extend those deadlines, although not all have been successful. Earlier this month, the Michigan Supreme Court denied a request from the state’s independent redistricting commission asking for more time to draw the maps. The Michigan maps are due Nov. 1.
Michigan is one of several states since 2011 in which voters shifted the redistricting burden to independent or advisory commissions rather than relying solely on state legislatures — an effort to take the politics out of the process. But the commissions are facing upheaval as well.
“Even in states that do pass reforms, you see immediate attempts by political actors to find weaknesses and to try to exploit weaknesses in the system,” Li said. “Having a good, plausible legal claim is seemingly no longer [necessary] to file a complaint.”
He pointed to an attempt by Michigan Republicans in November 2019 to delay creating the commission on grounds that it violated free speech and association rights because it restricted those with close ties to politicians, like family, staff and lobbyists, from serving as members. A district court and two appeals courts have denied that effort.
Tony Daunt, a plaintiff in that lawsuit and the executive director of a GOP redistricting advocacy group in Michigan, said redistricting is “a complex, inherently politically process” that he believes will be slowed by leaving it in the hands of people with no political experience.
Michigan is one of only seven states to have truly independent redistricting commissions. Other states’ commissions either have bipartisan members selected by politicians or deliver maps that are not binding.
In Missouri and Utah, two states where voters approved ballot initiatives in 2018 to depoliticize redistricting, state Republican lawmakers have moved to weaken them by allowing political appointees to draw maps.
The Utah state legislature is working on a parallel track with the advisory redistricting commission approved by the voters. GOP state Rep. Paul Ray, who chairs the legislature’s redistricting committee, said he is open to considering what the commission produces, but believes lawmakers have the responsibility to draw the maps.
But, Ray said, he won’t be interested in a map that makes one of its four congressional seats — all now held by Republicans — vulnerable to being taken over by Democrats.
Anti-gerrymandering advocates are also wary about whether New York’s Democratic legislature will follow recommendations made by its new advisory redistricting commission, given the state is one of the Democratic Party’s only chances to shape districts to their advantage.
Several of the states where lines were most partisanly drawn in the past now will be working within the guardrails of commissions or divided government. But Republicans still have the upper hand, with complete control over the process in politically influential states such as Florida, Georgia, Texas and North Carolina. (North Carolina has a Democratic governor, but he does not have veto power over the GOP-drawn maps.)
The growth in all of those states has come from younger and nonwhite voters, groups that are predominantly Democratic. Yet Republicans can ensure that for the next decade their seats are fairly secure, thanks to their sway over the process, experts said.
“The gerrymandering that comes out of this cycle is certain to be just as enduring as 2011,” Daley said. “The process leading us there is only going to amplify the polarization and divisiveness.”
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The Washington Post’s Harry Stevens contributed to this report.