Voters in line. Photo by John McCosh.
WASHINGTON — New political maps will shape elections in state legislatures and Congress for a decade, but this year’s round of redistricting is already crumbling into partisanship and court challenges not just in Ohio, but multiple states.
Hopes were high initially. Advocates in several states pushed measures over the last few years that they hoped would lessen some of the acrimony in the struggle for political power every 10 years.
But the COVID-19 pandemic wreaked havoc on the 2020 headcount by the Census Bureau, essential for figuring out boundaries. The agency released its population data four months later than normal, giving state lawmakers and others involved in redistricting a pressured timeframe for their maps.
On top of that, many states with a history of racially discriminatory voting practices are working for the first time without the need to get approval from the U.S. Department of Justice for changes, provoking disputes. And throughout the U.S., the bitter debates over the results of the 2020 presidential election are getting replayed in redistricting battles.
The landscape so far:
In Ohio, the Republican majority of a bipartisan panel approved a legislative redistricting plan that could preserve the GOP’s lopsided majorities for at least another four years. There are already three different lawsuits challenging the new maps. All three say that the Republicans ignored a new amendment to the state constitution designed to prevent partisan gerrymanders.
With Ohio Gov. Mike DeWine’s son Ohio Supreme Court Justice Pat DeWine declining to recuse himself from the cases where his father is a defendant as a member of the Ohio Redistricting Commission, the cases likely hinge on the decisions of OSC Chief Justice Maureen O’Connor, who ruled against Ohio’s current partisan maps when an anti-gerrymandering lawsuit was brought before the court in 2012.
A newly created redistricting commission in Virginia, meanwhile, failed to pass any new maps for legislative districts. That essentially leaves the matter up to the courts. Democratic members walked out of the panel’s final meetings, after butting heads with Republicans over which maps to use as a baseline and how to incorporate racial and demographic data into their discussions.
The Democratic majority in the Oregon House reneged on a deal to include Republicans in redistricting negotiations, after being unable to find common ground. They passed a Democratic-friendly map instead.
And even in Iowa, which uses a largely nonpartisan process that reformers routinely hold up as a model, Republican legislative majorities are considering whether to advance their party interests instead. A new map is expected on Thursday.
“At a certain point, the lure of partisan political power is such that, unless there are strong reforms in place, you’re going to see what happened in Oregon, you’re going to see what happened in Ohio,” said Suzanne Almeida, a lawyer who works on redistricting issues for Common Cause.
New census numbers
Public officials have to redraw the maps of every sort of legislative body — from the U.S. House to city councils — in response to the new 2020 Census numbers. The updates make sure all residents get equal representation.
Meanwhile, advocates say, the public has become more interested in the redistricting process than at any time in recent memory.
The shapes of new legislative districts can give certain politicians — or entire parties — an edge in upcoming elections, an advantage that usually lasts 10 years until the next Census.
Improvements in technology also make it easier for members of the public to see for themselves how different proposals could affect the balance of power in legislatures.
That growing awareness has led several states to adopt new procedures for drawing legislative and congressional districts. Some followed the examples of Arizona and California, which put non-politicians in charge of the process through independent commissions.
When non-politicians draw the map, they tend to do a much better job in terms of fairness to the parties. You almost never see partisan gerrymandering when that happens.
– Alex Keena, Virginia Commonwealth University
Other commissions — like those in Ohio and Virginia — include politicians in the decision-making process. Other states pass redistricting maps just like any other piece of legislation — through the state legislature.
Alex Keena, a political science professor at Virginia Commonwealth University and an author of two books on gerrymandering — in which a party manipulates district boundaries in its favor — said the more politicians are involved in the process that can directly affect them, the more divisive the process is.
Even if they find a way to agree with the other party, the result is often a map that protects incumbent lawmakers of both parties.
“When non-politicians draw the map,” Keena said, “they tend to do a much better job in terms of fairness to the parties. You almost never see partisan gerrymandering when that happens.”
But in many states, the easiest — or only — way to change the state constitution is through the legislature. That’s why elected officials still have a hand in drafting maps in places like Ohio and Virginia.
Facing well-funded opposition, direct citizen initiatives against gerrymandering were rejected by Ohio voters. In 2015 and 2018, anti-gerrymandering groups, Republicans and Democrats negotiated legislatively-sponsored reform, which didn’t face moneyed opposition and voters overwhelmingly supported.
The reforms left the 5-2 Republican-to-Democrat Ohio Redistricting Commission to draw state legislative maps, and a back-and-forth between the commission and legislature to try to come up with U.S. congressional district maps. Under the reform, failure to come up with 10-year maps with bipartisan support results in the majority being able to draw four-year maps.
The national rules governing redistricting have also changed over the last decade, which might be contributing to more outright partisanship.
The 2020 redistricting cycle is the first in which many states will be able to enact their new maps without getting the green light from the U.S. Justice Department beforehand.
That’s the result of the Supreme Court invalidating a key component of the Voting Rights Act, which required that jurisdictions with a history of racially discriminatory voting practices — many in the South — had to get “pre-clearance” by the federal government for major voting changes.
The conservative majority of the high court struck down that provision in 2013, finding that the extra protections were no longer warranted. Several Southern states quickly passed new voting restrictions after the ruling.
“That means there is no protection against racial gerrymandering until after the fact,” Keena said.
That has partisan consequences, too.
Republicans, particularly in the South, stretched their legislative majorities last decade by packing Black and Hispanic voters into heavily Democratic districts where they would waste their votes, he said.
Without pre-clearance, it can take years for courts to rule on racially discriminatory gerrymandering, Keena noted.
For example, federal judges struck down 11 districts in Virginia for discriminating against Black residents in 2018, seven years after those districts were drawn.
The U.S. Supreme Court tossed out maps for two North Carolina congressional districts six years after they were drawn.
“That’s a good deal if I’m a politician,” Keena said. “I know what I’m doing is illegal, but I know it’s going to take a long time before any court is going to change it.”
In recent years, the Supreme Court also decided that federal courts could not invalidate legislative districts just because they gave one political party an advantage.
The high court declined to overturn maps from Maryland, North Carolina and Wisconsin.
“Partisan gerrymandering claims present political questions beyond the reach of the federal Courts,” Chief Justice John Roberts wrote for the majority in 2019 in Rucho v. Common Cause, which challenged North Carolina’s maps.
Meanwhile, partisan divides have grown not just among politicians, but among the public, too.
So when Colorado opted to use a nonpartisan commission to draw its new legislative and congressional maps, rather than let the Democrats in control of the state decide them, many Democrats stewed at the missed opportunity.
Democrats, in particular, rue that many blue states have turned to less-partisan processes, while Republicans in red states unapologetically tilt maps in their favor.
State courts favored
Given the cold reception in federal courts, advocates have started to turn to state courts instead.
They’ve challenged maps they think are skewed for violating parts of state constitutions that guarantee free and equal elections. The constitutions of 30 states require that elections be “free,” according to the National Conference of State Legislatures. Of those, 18 also require elections to be “equal” or “open.”
Those have been the basis of successful attacks on legislative maps in North Carolina and Pennsylvania.
Republican lawmakers in North Carolina had to draw new districts in 2017, because the original map they passed after the 2010 Census was struck down for racial gerrymandering. But the GOP majorities again drew districts that would keep the legislature firmly in Republican control, even though statewide contests there were routinely competitive.
A panel of state judges said that violated the guarantee of “free” elections in the state constitution.
The maps, they wrote, “do not permit voters to freely choose their representative, but rather representatives are choosing voters based upon sophisticated partisan sorting. It is not the free will of the people that is fairly ascertained through extreme partisan gerrymandering. Rather, it is the carefully crafted will of the map drawer that predominates.”
The Pennsylvania Supreme Court struck down the state’s 2011 congressional maps using a similar rationale.
Ben Williams, an NCSL redistricting expert, anticipates those kinds of challenges will become more common. “I fully expect, just because redistricting is so litigious, to see more of these cases in the next decade,” he said. “That’s going to be a real change from the past.”
In Ohio, the state constitution is even more explicit, thanks to a recent amendment. Now, courts will have to decide how powerful that protection is.
When voters changed the state constitution in 2015, they added language that said no district plan “shall be drawn primarily to favor or disfavor a political party.” It further specified that the mix of Republican-leaning and Democratic-leaning legislative districts “shall correspond closely to the statewide preferences of the voters of Ohio.”
The new maps Republicans approved would give the GOP the edge in about two-thirds of the legislative seats, even though Republicans have averaged about 54% of the statewide vote in recent elections.
Gov. Mike DeWine, a Republican who voted for the maps that were passed 5-2, with both Democrats on the commission voting against, said he was “disappointed” the panel couldn’t pass a “more clearly constitutional” bill.
“Our job is to make (the redistricting plan) as constitutional as we can, and I thought we could have done better, but ultimately…no matter what this commission did, we knew this was going to end up going into court,” DeWine said just after the maps were voted on.
Three lawsuits — from good government groups, Democrats and civil rights organizations — are now challenging the Republican maps in Ohio. The constitutional protection against partisanship is one of the issues that they raise.
Better than the old days
However, advocates who want to keep politicians away from redistricting say even the partisan squabbles are an improvement over the old days.
Yurij Rudensky, a lawyer for the Brennan Center for Justice, pointed to Virginia, where a commission created by voters last year has deadlocked on legislative maps. The impasse means the state Supreme Court is likely to choose a map instead.
“It’s certainly not how I think anyone had hoped things would unfold. But it’s important to remember how bad things were last decade,” Rudensky said.
In 2011, the Virginia House and Senate were controlled by different political parties, but each chamber drew the maps for their own districts. That led to years of litigation over whether the maps discriminated against Black residents.
Putting the process in the hands of a commission, he said, “is still a step forward.”
“It’s not one party that has control that can ram through its will over the objection of the public, and over the objection of the minority party,” he said.
Almeida, the Common Cause lawyer, said Virginia just having the debate in public is an improvement.
“We know how the sausage is getting made,” she said. “It’s ugly, but we have an understanding of what the debate is. We know why people are frustrated. The community has had significant opportunity to weigh in. So even if it’s not everything we would want to encourage transparency, it’s still significantly better than we would have seen otherwise.”
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