A Look At Redistricting Litigation Around The Country

Citizens meet Sept. 9 during the second Ohio Redistricting Commission meeting of the day. During the meeting, the GOP-proposed map was accepted by the commission as a “working document” as negotiations continue. Photo by Susan Tebben, OCJ.

Lawsuits challenging Ohio’s latest political district maps got their day in court earlier this month, and with elections based on those boundaries just a few short months away, the courts have expedited the process. As the judicial process kicks into gear, it’s worth asking — what actually happens if the courts find fault with the maps?

The simple answer is there’s no simple answer. Around the country, courts have come to a variety of solutions based on different kinds of analysis. To get a sense of that diversity we surveyed the court battles during the last decade of redistricting in three different states: North Carolina, Pennsylvania and Florida.

North Carolina plays an outsized role in redistricting around the country. That’s because in 2019, the U.S. Supreme Court drew a red line in the case Rucho v. Common Cause when it determined federal courts can’t rule on questions of partisan gerrymandering. But professor Michael Bitzer of Catawba College explains that was just one end point in a string of legal fights during the 2010 cycle.

The first fight focused on race. Bitzer explains lawmakers insisted on minority opportunity seats where at least 50% of the voting age population was Black.

“The constant refrain from the two chairs of the redistricting committee was we are going to follow the law and we believe the law says we need 50% Black voting in these districts,” Bitzer said.

Voting rights organizations quickly challenged those maps in state and federal court. Although minority populations in those districts would hold sway, they argued, insisting on majority minority districts gave Republicans an advantage by sequestering left-leaning minority voters in fewer districts.

In 2016, federal courts agreed the drafters had unjustly packed minorities into two of the state’s congressional districts and sent lawmakers back to the drawing board.

One of the people who had a hand in drawing those lines bears mentioning. Republican strategist Thomas Hofeller helped orchestrate efforts to maximize his party’s advantage in states around the country. After he died, his daughter released hard drives making it clear Hofeller played a pivotal role in the Trump administration’s effort to add a citizenship question to the census. The idea being that, with citizenship information, states could draft district lines based on citizens rather than residents which might further benefit the GOP.

But before that, Hofeller developed a pattern, on display in North Carolina, of using the majority-black districts to favor Republicans.

“Particularly in the south,” Bitzer explained, “race correlates very closely to partisanship. It is that dynamic of if you pull Black voters and put them into one district, you are bleaching the surrounding districts to become much more Republican.”

Separately, the federal courts threw out the state district lines as well. Then they threw them out again after determining state lawmakers made unnecessary changes on the second pass. The court even drew its own map, although the U.S. Supreme Court gave them a brushback after one election.

Once North Carolina lawmakers redrafted their congressional maps they faced another round of challenges — this time over partisanship. And the mapmakers weren’t subtle about their aims. Asked why he believed his map was fair, Rep. Dave Lewis, R-Harnett, bluntly responded,

“I propose that we draw the maps to give a partisan advantage to 10 Republicans and three Democrats, because I do not believe it’s possible to draw a map with 11 Republicans and two Democrats.”

The federal case challenging that map hit a dead end with the U.S. Supreme Court deciding not to wade into questions of partisanship. The state court, however, dove right in, agreeing with challengers that the partisan slant of the map violated the state constitution, and ordering state lawmakers to come up with new districts for a third time that decade.

In court, Bitzer said, arguments centered on “ensemble analysis.”

“Basically, if you take a computer program and algorithm and run a simulation of 1,000 variations of maps, utilizing all of the standard criteria, where would these maps fall in that simulation?” Bitzer explained. “Are they in the middle and would be representative or are they outliers? Are they to the extremes?”

Still, Bitzer said the state courts, like the U.S. Supreme Court, struggled with where exactly to draw the line for what constitutes too much partisanship.

In the Sunshine State, University of Central Florida political scientist Aubrey Jewett explains, “redistricting” actually started before lawmakers got census data. That’s because in 2010 Florida voters approved two ballot measures known collectively as the Florida Fair Districts Amendments.

Similar to language in Ohio’s new redistricting laws, Florida’s amendments prohibit lawmakers from drawing boundaries to favor incumbents or parties. They also forbid drawing lines that would “deny racial or language minorities the equal opportunity to participate in the political process and elect representatives of their choice.”

In another bit of foreshadowing for Ohio’s latest redistricting process, Jewett said lawmakers took the mapmaking show on the road.

“They went around the state and had a roadshow, I’ll call it,” Jewett explained. “They scheduled meetings around the state for public comment, people could submit maps, they could submit comments about what they thought for their own particular area, you know, which would be split, which should not be split and that sort of thing.”

According to Jewett, there were some reasons to be optimistic about the district plan lawmakers came up with. Compared to the badly gerrymandered map of the previous decade, districts were more compact, and there were even some that put GOP incumbents head-to-head. But in court, it became clear that Florida Republicans engaged in a separate “shadow process” built to give Republicans an advantage and hide their actions from public view.

“Once they had were able to subpoena emails and memos and get people’s sworn testimony, that is what happened,” Jewett explained. “The Republicans who were in charge of drawing the maps gave the impression that they were following the Fair Districts Amendment, but they were working behind the scenes to undercut them and to try to draw maps that still gave Republicans an advantage.”

GOP operatives sent plants to pose as public commenters, and propose maps drawn behind the scenes. They discussed with legislative leaders whether maps should “evolve” toward a fairer product or change very little. As in North Carolina, GOP insistence on Black voters making up the majority in one district was shown to be a ploy to dilute minority voting influence in neighboring districts. Discrepancies in the records produced in court suggested the House Speaker at the time deleted emails between his office and the operatives working on redistricting.

The writing on the wall was so clear that the state Senate didn’t even attempt to defend its maps in court.

A state circuit judge ordered lawmakers to redraw the congressional maps, which they did — in a three-day special session with virtually no Democratic input. A year later, the Florida Supreme Court weighed in and ordered lawmakers draw new maps a third time and sent along a laundry list of specific requirements for numerous districts. But at that point, the Republican controlled legislature deadlocked. So the courts imposed a congressional map of their own for the 2016 elections, based in large part on proposals offered by the groups challenging the legislature.

Jewett admits trying to rein in lawmakers through constitutional amendments is “clunky,” but ultimately, it kind of worked.

“It certainly was not what the drafters of the amendment and probably what the average Floridian who voted for it, it wasn’t what they were hoping for initially,” Jewett said. “But ultimately the Florida Supreme Court did its job and held the legislature’s feet to the fire, and we did end up with a better process.”

But Jewett is quick to add that because of age limits for sitting justices, the complexion of the state supreme court has changed dramatically. A wave of Republican appointees have pushed it to the right, and it’s not at all clear that justices would take the same adversarial posture toward state lawmakers in the future.

Like Florida and North Carolina, Pennsylvania’s maps for the state legislature and congress all saw challenges in the last decade. But the courts there wound up with a different process for drafting new borders and relied on a somewhat novel legal theory for deciding the case.

Ben Geffen from the Public Interest Law Center was one of the lawyers representing residents fighting to invalidate Pennsylvania’s maps. On the state districts front, Geffen described how one of their clients was a 29-year-old piano teacher who just got curious about why her portion of the state was getting split unnecessarily.

“She drew her own maps for the state Senate and state House that did a far better job of avoiding splits while still maintaining compactness and equal population and all those other things and her maps were the basis for the challenge,” Geffen said.

They won, and the court sent the map back to Pennsylvania’s Legislative Reapportionment Committee, a five-member panel of state lawmakers responsible for drafting legislative boundaries. Geffen described the second draft as an improvement, but his clients still found faults and challenged the maps again. This time, however, the courts declined to intervene.

For the congressional maps, Geffen explained they followed a different tack than challengers in many other states by waiting for a handful of elections to be decided before filing their lawsuit.

“If you challenge a map at the very beginning, right after it’s been passed and before it’s been used in an election, often the defendants will argue, you’re just speculating how this map is actually going to play out in an election, your lawsuit is premature,” Geffen said. “And then if you wait until there’s already been an election, or two, or three, under the map, they say you sued too late. So it’s like, well, when am I supposed to sue?”

Geffen said they risked the latter and filed suit in 2017 after three elections had gone forward. He explained they mined those election results for evidence at trial. Despite statewide elections producing narrow victories that yo-yo-ed between the parties, the partisan make-up of Pennsylvania’s congressional map remained static, with Republicans controlling 13 seats and Democrats holding five.

The federal courts rebuffed challenges filed there, but the state court took them up and ruled in favor of Geffen’s side.

“The Pennsylvania Supreme Court held that the map was illegal under the state constitution, threw it out, gave the legislature and the governor three weeks to agree on a new map so it would be ready in time for the spring 2018 primary,” Geffen described. “They were not able to reach a deal, and so the state Supreme Court had a special master who drew a map, which was the map that was used in 2018 and 2020.”

The court tapped Stanford law professor Nathaniel Persily to draw the new Congressional map. Persily has served in a similar role for a handful of other states including North Carolina, where he had a hand in reviewing and redrafting state legislative boundaries. Persily did not release information about the criteria he used to draw the map, but Geffen said it performed markedly better when it came to metrics like compactness and city or county splits.

“The outcomes also mirrored that,” Geffen said. “Pennsylvania has 18 seats right now, very closely divided state in every statewide election, and this map resulted in a nine-to-nine delegation in both the 2018 and 2020 elections.”

Interestingly, the Pennsylvania Supreme Court reached its decision to scrap the congressional map based on a “free and equal” clause in the state constitution. Judges in North Carolina looked to a similar clause in their constitution when ruling on the state’s congressional maps, but there’s no direct analog for the clause in the U.S. Constitution. Unlike amendments approved in Ohio and Florida explicitly prohibiting partisan intent, Pennsylvania’s constitution makes the more general statement that, “elections shall be free and equal; and no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage.”

In its ruling, the Pennsylvania Supreme Court relied on that clause in its determination that the legislature ignored neutral criteria like compactness or local boundaries to give Republicans an edge.

“An election corrupted by extensive, sophisticated gerrymandering and partisan dilution of votes is not “free and equal,” the majority opinion states. “In such circumstances, a “power, civil or military,” to wit, the General Assembly, has in fact “interfere[d] to prevent the free exercise of the right of suffrage.”

The response from lawmakers was exceptionally harsh. Comparing the case to poking a hornet’s nest, Geffen said lawmakers mulled aggressive tactics to punish the court and protect legislative prerogatives. One lawmaker filed resolutions to impeach four of the supreme court justices. Another stalled plan would amend the constitution to put the state’s elected supreme court bench into districts and then hand lawmakers the pen to draft district boundaries.

While federal courts have shrunk from questions of what partisan gerrymandering, state courts have shown themselves willing to call balls and strikes — at least when they have some constitutional foundation on which to base their findings. As Jewett notes, the process is clunky, but provisions that prohibit partisanship provide a legal roadblock for the most extreme cases of gerrymandering.

And despite Republicans controlling the process in these states, they aren’t alone. Geffen noted Democrats in Maryland saw numerous although unsuccessful challenges to their maps, and Bitzer said he describes gerrymandering to his students as “probably the last true bipartisan dynamic in American politics.”

Still the three states don’t paint a rosy picture. All three saw lawmakers, unable to set aside partisan impulses, repeatedly sent back to the drawing board. In the end, none of the three was able to draft a full set of maps without the court stepping in to draw new lines, and only North Carolina arrived at a Congressional plan that met court muster during the 2010 cycle. It only took them until Nov. 15, 2019 — just in time for the very last election of the decade.

But Bitzer notes that’s nothing new in North Carolina.

“Every decade since the 1990s we have not had a full set — Congressional, State House, State Senate maps — survive a decade,” Bitzer said.

And like Ohio, North Carolina’s maps for the 2020 cycle are already back in court. Time will tell if Pennsylvania and Florida follow.

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by Nick Evans, Ohio Capital Journal December 30, 2021