Editor’s note: This story was updated to correct a reference to the NAACP Legal Defense and Education Fund.
The legal battle over redistricting started in Texas this year even before lawmakers sat down to draw new state and congressional district maps.
On Sept. 1, two Democratic state lawmakers filed a lawsuit aiming to stop the Republican-controlled legislature from shaping districts for two years. They argued that, under the state constitution, the legislature must wait until its next regular session after census redistricting data is released to draw the new maps. The U.S. Census Bureau released that data in August; Texas’ next regular session is in 2023.
Republican Gov. Greg Abbott called a special session for later this month to redraw the maps. But if Democrats succeed, a three-judge panel would be tasked with drawing the new maps before the March primary election.
“For nearly 20 years Texas Republicans have manipulated the redistricting process to disenfranchise minority voters and Democrats to maintain a tenuous hold on the state legislature, but that all ends now,” said Texas Democratic state Sen. Sarah Eckhardt in a news release. She filed the suit along with Democratic state Sen. Roland Gutierrez and the Tejano Democrats, a political organization.
Abbott’s office did not respond to a request for comment.
Texas is only one of many states facing increased legal wrangling this redistricting cycle. So far, some 49 redistricting suits have been filed in state and federal courts in at least 22 states, according to University of Colorado Law School professor Doug Spencer, who’s been tracking cases on the All About Redistricting website hosted by Loyola Law School in Los Angeles.
Delayed census redistricting data, which normally would have been released in March but faced pandemic setbacks, has been the main reason cited in most lawsuits filed so far. But experts say increased public interest and access to online redistricting tools, coupled with court rulings from the previous redistricting cycle, could mean a record number of challenges to maps being drawn with the new data.
The U.S. Supreme Court in recent years has issued several decisions dealing with redistricting, including rulings related to the consideration of race in drawing district maps, the use of total population tallies in apportionment and the constitutionality of independent redistricting commissions.
The rulings in these cases will affect redistricting processes across the nation, said Wendy Underhill, director of the elections and redistricting program at the National Conference of State Legislatures, a nonpartisan group that tracks state legislation.
“It is likely that most states will have at least some lawsuits, because redistricting tends to make people think that there's winners and losers,” said Underhill. “And if you're the loser, you're going to give it at least a shot at going to the court.”
Some states, including Illinois and Oklahoma, were forced to use census population estimates rather than wait for redistricting data based on actual population counts to meet their states’ constitutional deadlines. That has led to lawsuits.
The Illinois Constitution gives the General Assembly until June 30 in the year following a decennial census to file maps of new state election districts. State lawmakers drew Senate, House and appellate court district maps in late May, and Democratic Gov. J.B. Pritzker approved them in early June.
Republican leaders filed a federal lawsuit arguing the state redistricting plan approved by the Democratic-led legislature is unconstitutional because it is based on census estimates rather than the official figures released in August. The Mexican American Legal Defense and Educational Fund filed another lawsuit on behalf of a group of registered voters arguing the same thing. The cases were consolidated and are pending.
Lawmakers in Oklahoma who used census estimates to redraw House districts earlier this year said they will try again because the data they used varied from the population count, according to news reports.
The Oklahoma Supreme Court last year nixed a ballot initiative brought by advocacy groups including the League of Women Voters of Oklahoma that wanted an independent commission to be responsible for redistricting this cycle.
In other states with tight deadlines, including California, where lawmakers had until Aug. 15 to redraw congressional and state district maps, lawmakers have asked the courts for extensions to complete the process. Judges in Colorado and Maine also awarded lawmakers more time to redraw district maps.
In July, the Michigan Supreme Court denied the newly created Michigan Independent Citizens Redistricting Commission an extension to adopt a redistricting plan. The state constitution mandates that the commission adopt a plan by Nov. 1, but before then each map must be made available for public comment for 45 days.
At the end of August, the commission had drawn seven out of 38 state Senate districts and 18 out of 110 state House districts, according to news reports. If the commission does not finish drawing state and congressional maps by Sept. 17, that could lead to additional litigation.
Greater public interest and access to data also could lead to more lawsuits this cycle, said Adam Podwitz-Thomas, senior legal strategist for the Princeton Gerrymandering Project, a nonpartisan research group that developed a tool capable of exposing suspected partisan gerrymandering.
In past cycles, redistricting authorities mostly worked behind closed doors with little scrutiny, Podwitz-Thomas said. Public input is legally mandated in only 25 states, but most states have held hearings and accepted public maps in previous cycles, according to the project website. At least 12 states are providing online tools for residents interested in drawing and submitting their own maps this cycle, according to Stateline research.
“The public now has access to the same information and can ensure that line drawers are complying with the law. We are bridging the gap between mathematics and the law,” Podwitz-Thomas said.
“But I don’t think an increase in litigation is inevitable,” he added. “I think legislators could make a different decision by drawing fair maps, and I would encourage them to do so.”
In August, Podwitz-Thomas and his group teamed up with the nonprofit anti-corruption group RepresentUs to launch the Redistricting Report Card, which grades proposed redistricting maps on a scale from A to F. The report card scores maps on several points, including partisan fairness, racial composition and use of existing geographic landmarks such as major highways, rivers and mountains to draw each district.
Officials and the public also can use other free online tools, including Dave’s Redistricting, DistrictBuilder and Districtr, to evaluate the fairness of maps proposed by redistricting authorities.
Many of these tools sprang from past litigation when judges wanted evidence from parties arguing about partisanship and discrimination, said Underhill of the National Conference of State Legislatures.
“We’ve encouraged redistricters to be familiar with these tools because if they’re not looking themselves with these kinds of measures then someone will be looking over their shoulder with those kinds of measures,” she said.
There is a good chance that state officials will be sued over their maps and will have to explain why and how they drew the lines, Underhill said.
Another factor that could drive lawsuits is a 2013 U.S. Supreme Court decision that swept away a key provision of the Voting Rights Act of 1965. That provision ensured state and local governments did not pass laws or policies that denied American citizens the equal right to vote based on race.
Previously, certain states and jurisdictions with a history of discrimination had to submit any proposed changes in voting procedures and district maps to the U.S. Department of Justice or a federal district court in Washington, D.C., before they went into effect to ensure the change would not harm minority voters.
The decision in Shelby County v. Holder freed Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Virginia, Texas and parts of California, Florida, Michigan, New York, North Carolina and South Dakota from the mandate.
“This will be the first decade where there isn't that protection, so it’s up to the public to keep a close eye and tell the legislature what’s going on and put it on the record,” said Joaquin Gonzalez, an attorney with the voting rights program at the Texas Civil Rights Project, a legal advocacy group. “If we don’t, then the legislature is just going to discriminate in a secret fashion, and with the courts how they are, it will be the much harder to prove anything.”
Gonzalez said the Texas Civil Rights Project will be using public maps submitted to them by communities of interest to determine whether to file litigation arguing legislature-drawn maps should be redone. A community of interest is a group of people who share common policy concerns or demographic traits and would benefit from being maintained in the same electoral district, according to Gonzalez.
In most states, lawsuits and redistricting are as common a pairing as sunscreen and the beach or French fries and ketchup. After the 2010 census, redistricting lawsuits were filed in at least 37 states. Roughly a quarter of the 140 maps submitted by redistricting authorities nationwide in that cycle were overturned after being challenged in court, according to Ballotpedia.org.
Two major groups behind many past redistricting lawsuits are the NAACP Legal Defense and Education Fund and Mexican American Legal Defense and Educational Fund. But this time around, they say the landscape has changed because of the Supreme Court ruling.
During a redistricting seminar in early July hosted by NCSL, Kathryn Sadasivan, redistricting council with the NAACP Legal Defense and Educational Fund, warned state lawmakers and their staff she will be paying extra attention to states freed by the court’s 2013 decision.
“The lawsuits will come if the plans proposed are discriminatory against Black Americans or other minority voters, because there is no longer the kind of federal preclearance or the checks and balances that might have helped state legislators in those formerly covered jurisdictions determine that their actions are lawful,” Sadasivan said.
She said her team will especially scrutinize voter dilution, which is when many minority voters are packed into one district to diminish their political power.
Thomas Saenz, president of the Mexican American fund, said his group will be paying extra attention to districts where Latino residents are the largest minority. Latino people account for over half of the country’s population growth, census data shows. In Texas, Hispanic residents grew to 39.3% of the state’s population, nearly equal to the non-Hispanic White population share of 39.8%.
“We’ve had to litigate in Texas virtually every decade during our existence, for 53 years, about redistricting,” Saenz said during the seminar. “If I had to guess, we may end up in Texas again in 2021.”