Redistricting is done shortly after each decennial census. Each state redraws its legislative maps each decade, and 43 states—those that have more than one member of the U.S. House of Representatives—redraw congressional districts as well. Frequently, these maps are challenged in court.
With the interactive map above, readers can find summaries of major redistricting cases relating to legislative and congressional redistricting plans based on the 2010 Census. Information on cases from previous decades can be found at NCSL’s Redistricting Case Summaries or at All About Redistricting, from the Loyola Law School.
NCSL has defined “major” as those cases that refine and further develop redistricting law, rather than simply applying the law as clearly established before 2010. If you think we have omitted a major case, please let us know.
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Unlike in most states, Arizona has an independent commission that draws its congressional and legislative maps. The main point of contention in Arizona this decade revolved around the creation of the commission through the state’s ballot initiative process in the first place (it withstood the challenge) and whether it constructed the districts with partisan bias in mind.
Arizona State Legislature. v. Arizona Independent Redistricting Commission, No. 13-1314, 576 U.S. ____ (June 29, 2015)
In 2000, Arizona voters adopted an amendment to the Arizona Constitution via ballot initiative that removed the Legislature’s authority to draw legislative and congressional districts. The amendment vested this power with a newly created Independent Redistricting Commission (IRC). In 2012, the Arizona Legislature challenged the constitutionality of removing what they consider to be their constitutional powers and giving them to another entity. The argument is based on the Elections Clause of the U.S. Constitution, which gives this power to the legislatures to draw congressional districts.
The three-judge federal district court dismissed the plaintiffs’ challenge. The case was then appealed to the U.S. Supreme Court, which affirmed the lower court’s ruling. The court held that redistricting is a legislative function that is left to the laws of the state to determine the process. The Elections Clause does not restrict this particular power of the state. States retain autonomy to establish their own governmental process. If this includes enacting laws via a citizens’ initiative process, as is true in Arizona and two dozen other states, then the state retains this power to establish an independent redistricting process through a ballot initiative.
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Florida’s litigation in the 2010 cycle focused primarily on the “Fair Districts Amendments” added to the state constitution by initiative in 2010. There were two nearly identical amendments: one setting standards applicable to congressional districts (art. III, § 20), and the other setting standards applicable to state legislative districts (art. III, § 21).
The new constitutional standards are set out in two tiers. The first-tier standards have equal priority among one another:
- No apportionment plan or district shall be drawn with the intent to favor or disfavor a political party or incumbent.
- Districts shall not be drawn with the intent or result of denying or abridging the equal opportunity of racial or language minorities to participate in the political process or to diminish their ability to elect representatives of their choice.
- Districts shall consist of contiguous territory.
The second-tier standards are subordinate to those in the first tier and have equal priority among one another:
- Districts shall be as nearly equal in population as is practicable.
- Districts shall be compact.
- Districts shall, where feasible, utilize existing political and geographical boundaries.
The amendments spawned a flood of litigation challenging the amendments themselves, plans adopted under the new standards, and—in the process—plaintiffs’ attempts to determine the intent of the legislators who adopted the plans.
Brown v. Secretary of State, No. 11-14554, 668 F.3d 1271 (11th Cir. Jan. 31, 2012)
Plaintiff members of Congress and the Florida House of Representatives challenged the Fair Districts Amendment relating to congressional districts (art. III, § 20) as violating the Elections Clause of the U.S. Constitution. They argued that, because the Elections Clause authorizes “the Legislature” of each state to prescribe the times, places, and manner of holding congressional elections, a state constitutional amendment proposed by citizen initiative was invalid as applied to congressional elections. The 11th U.S. Circuit Court of Appeals upheld the amendment because, rather than dictating electoral outcomes, the amendment seeks to maximize electoral possibilities by leveling the playing field.
Romo v. Detzner, No. 2012-CA-412 (2nd Cir. Leon County)
The congressional plan enacted under the new constitutional standards was challenged in state court. In Romo v. Detzner, plaintiffs challenged numerous congressional districts and the plan as a whole. They alleged that the legislature intentionally favored the Republican Party and incumbents by drawing districts that preserved the cores of prior districts and avoided pairing incumbents, packed Democratic and African-American voters, created districts that were not compact, and did not utilize existing political and geographic boundaries where feasible. Second Amended Complaint (April 3, 2012).
Before the final ruling on either the Senate or the congressional plan, a discovery battle ensued, resulting in three more decisions by the Florida Supreme Court (Apportionment IV, V, and VI).
League of Women Voters v. House of Representatives (Apportionment IV), No. SC13-949, 132 So.3d 135 (Fla. Dec. 13, 2013)
In the congressional case, the legislative defendants asserted “an absolute privilege against testifying as to issues directly relevant to whether the legislature drew the 2012 congressional apportionment plan with unconstitutional partisan or discriminatory ‘intent.’” Apportionment IV at 2. The Florida Supreme Court recognized a legislative privilege founded on the constitutional principle of separation of powers, even though there is no legislative privilege explicitly stated in the state constitution. However, the privilege is not absolute “where the purposes underlying the privilege are outweighed by the compelling, competing interest of effectuating the explicit constitutional mandate [in the Fair Districts Amendment] that prohibits partisan political gerrymandering and improper discriminatory intent in redistricting.” Id. at 3. The court approved “the circuit court’s order permitting the discovery of information and communications, including the testimony of legislators and the discovery of draft apportionment plans and supporting documents, pertaining to the constitutional validity of the challenged apportionment plan.” Id. at 4. It concluded that “legislators and legislative staff members may assert a claim of legislative privilege at this stage of the litigation only as to any questions or documents revealing their thoughts or impressions or the thoughts or impressions shared with legislators by staff or other legislators, but may not refuse to testify or produce documents concerning any other information or communications pertaining to the 2012 reapportionment process.” Id. at 39-40.
League of Women Voters v. Data Targeting, Inc. (Apportionment V), No. SC14–987 (May 27, 2014)
Again, in the congressional case, non-party political consultants asserted that the First Amendment Privilege protected documents reflecting their communications. The plaintiffs contended that the documents would “demonstrate ‘the surreptitious participation of partisan operatives in the apportionment process,’” Apportionment V at 2, by submitting “through ‘public front persons’ draft redistricting maps for the legislature’s consideration.” Id. at 5. The trial court ruled that the privileged documents in possession of non-parties might be admitted as evidence under seal, but that court proceedings would remain open during any use of the documents at trial. The Florida Supreme Court, however, required the trial court to maintain the confidentiality of the documents by permitting disclosure or use only under seal, and in a courtroom closed to the public.
Bainter v. League of Women Voters (Apportionment VI), No. SC14-1200, 150 So. 3d 1115 (Fla. Nov. 13, 2014)
On appeal from the trial court’s order to produce documents, the Florida Supreme Court held that the political consultants had waived any objection to production of the documents based on a qualified First Amendment privilege by not raising it during more than six months of hearings and filings regarding document production. The court also rejected the consultants’ claim of a trade secrets privilege against production. It ordered the sealed documents and sealed portions of the trial transcript unsealed.
League of Women Voters of Florida v. Detzner (Apportionment VII), No. SC14-1905, 172 So.3d 363 (Fla. July 9, 2015)
On July 10, 2014, the Romo v. Detzner trial court declared two congressional districts invalid. On Aug. 11, 2014, the legislature in special session enacted a remedial plan, which the trial court approved. The parties then appealed and cross-appealed. In Apportionment VII, the Supreme Court reviewed the trial court’s final judgment and the legislature’s remedial plan. The Supreme Court held that that the trial court, in approving the remedial plan, failed to give proper legal effect to its determination that the congressional plan was enacted in 2012 with unconstitutional intent to favor a political party or incumbents. The Supreme Court held that in light of the trial court’s finding of improper intent, the trial court should have required the legislature to justify any district that the plaintiffs showed to have a problematic configuration. The Supreme Court required eight districts to be redrawn: five districts where plaintiffs proved there was intent to favor or disfavor a political party or incumbent, and three that were not compact or did not utilize existing political and geographical boundaries.
League of Women Voters v. Detzner (Apportionment VIII), No. SC14-1905, (Dec. 2, 2015)
A special session on Aug. 10-21, 2015, adjourned without enactment of a revised congressional plan. Thereafter, the Florida Supreme Court gave final approval to the congressional plan adopted by the trial court, which consisted of Districts 1 to 19 (North and Central Florida) as passed by the House and incorporated into the plaintiffs’ alternative map and Districts 20 to 27 (South Florida) as proposed by plaintiffs.
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Committee for a Fair & Balanced Map v. Ill. Bd. of Elections, No. 1:11-cv-5065 (N.D. Ill. Dec. 15, 2011)
Plaintiffs challenged the Illinois congressional redistricting plan for violating § 2 of the Voting Rights Act, the Equal Protection Clause of the 14th Amendment, and rights protected by the 15th Amendment, alleging that Congressional Districts 3, 4 and 5 as drawn intentionally diluted the Latino vote. They also alleged violation of the Equal Protection Clause in that Latino ethnicity was the predominant consideration in drawing District 4 and as such, was an intentional and unjustified racial gerrymander. They also alleged that Districts 11, 13 and 17 demonstrated a blatant partisan gerrymander against Republican voters in violation of the First and 14th Amendments.
Plaintiffs subpoenaed various legislators, legislative committees, and legislative staff to produce documents and give testimony concerning the enactment of the plan. None of those subpoenaed were parties to the suit. The documents included (1) information concerning the motives, objectives, plans, reports, and/or procedures used by lawmakers to draw the 2011 map; (2) information concerning the identities of persons who participated in decisions regarding the 2011 map; (3) the identities of experts and/or consultants retained to assist in drafting the 2011 map and contractual agreements related to it; and (4) objective facts upon which lawmakers relied in drawing the 2011 map. Legislative leaders moved to quash the subpoenas. The three-judge federal district court ruled that immunity for state legislators under federal common law is not absolute (as it would be under state law). Rather, the federal interest in enforcing the Constitution and voting rights statutes must be weighed against the privilege of state legislators not to produce documents or testify concerning their legitimate legislative activities. The court said:
In determining whether and to what extent a state lawmaker may invoke legislative privilege, the court will consider the following factors: (i) the relevance of the evidence sought to be protected; (ii) the availability of other evidence; (iii) the seriousness of the litigation and the issues involved; (iv) the role of the government in the litigation; and (v) the possibility of future timidity by government employees who will be forced to recognize that their secrets are violable. (Citations omitted.) In considering these factors, the court’s goal is to determine whether the need for disclosure and accurate fact finding outweighs the legislature’s “need to act free of worry about inquiry into [its] deliberations.” (Citations omitted.) Op. & Order at 14 (N.D. Ill. Oct. 12, 2011).
The court quashed the subpoenas as to categories (1) and (2) above, and granted orders to compel discovery as to categories (3) and (4). Op. & Order at 19.
After a two-day bench trial, the court denied all of plaintiffs’ claims.
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Desena v. Maine, No. 1:11-cv-117 (D. Me.)
A 1975 amendment to the state constitution required Maine to reapportion its districts every 10 years, starting in 1983. After the 2010 census data was completed, Maine’s two congressional districts saw an increased population differential. Instead of having a gap of 23 residents between the two congressional districts as was the case after the previous redistricting cycle, these two districts varied by 8,669 residents. Plaintiffs, who were residents of the larger district, sued the state on March 28, 2011, alleging that the plan from 2003, which was in effect for the 2012 election cycle, was unconstitutionally malapportioned and that the 2012 congressional election could not go forward under these current maps. The Supreme Court has previously held that even “de minimis population variations” can constitute a violation.
The Maine Federal District Court ruled in favor of the plaintiffs, holding that the population deviation between the two districts was significant and was greater than variances previously deemed unconstitutional by the U.S. Supreme Court. The court ordered the Legislature to act quickly and redraw the districts before the 2012 congressional elections. Mem. & Order (June 21, 2011)
On Sept. 27, 2011, at a special session called for this specific purpose, both houses of the Maine Legislature approved legislation adopting new congressional districts based on the 2010 federal decennial census. The Governor signed the bill the next day, no challenges were filed against it, and the Court ordered judgment for plaintiffs. Judgment, sub nom. Desena v. LePage (Nov. 2, 2011).
Over the past decade, Maryland has dealt with a range of issues related to its 2011 maps, especially the 2011 congressional map. Challengers have attempted to throw out the maps over equal protection clause violations, legislative privilege, partisanship excesses, and how the state accounts for its prison-based population.
Fletcher v. Lamone, No. 8:11-cv-3220 (D. Md. Dec. 23, 2011), aff’d No. 11-1178 (U.S. June 25, 2012) (mem.)
Fletcher v. Lamone addresses prison populations. The state of Maryland drew its congressional redistricting plan in accordance with the requirements of Maryland’s “No Representation Without Population Act.” This act, passed in April 2010, requires that prisoners be counted at their last known residence before incarceration, not at the prison address. If prisoners were residents of an address outside of Maryland before incarceration, the prisoners must be excluded from data used for redistricting.
This resulted in 1,321 inmates being excluded from Maryland’s redistricting database. The 6th Congressional District lost 6,754 individuals and the 7th Congressional District gained 4,832 individuals, based upon their pre-incarceration address in Maryland. The plaintiffs claimed that this adjustment to the census data results in malapportionment, which violates the “One-Person, One-Vote” standard established in previous case law.
The three-judge federal district court held that the Supreme Court’s standard for determining whether census data can be adjusted or not is that “a State may choose to adjust the census data, so long as those adjustments are thoroughly documented and applied in a nonarbitrary fashion and they otherwise do not violate the Constitution.” Id. at 13. The three-judge federal district court looked to previous case law that held that nothing in the Constitution compels the state to use only the data as provided by the U.S. Census as is.
In addition, states could enact a constitutional amendment or statute that modifies the count of prisoners as residents, as clarified in Perez v. Texas. No. 5:11-CA-360, Doc. 286 at 24 (W.D. Tex. Sept. 2, 2011). Also, the U.S. Census Bureau’s practice for counting prisoners represents an administrative decision, not a legal one. The U.S. Census Bureau does not count prisoners at their home address because the effort needed to coordinate such statistical analysis would be an immense and expensive endeavor, costing upward of $250 million. The Maryland Department of Planning (MDP) undertook a multistep process to try to identify the last known address of all the individuals in Maryland’s prisons. The court stated that this does not appear to be a process that is “haphazard, inconsistent, or conjectural,” a standard further addressed in Karcher v. Daggett, 462 U.S. 725, 732 n.4 (1983).
The three-judge district court concluded that the state did not violate art. I, § 2 of the U.S. Constitution by adjusting the raw census data. The state’s motion for summary judgment was granted. The defendants appealed to the U.S. Supreme Court. On June 25, 2012, the Supreme Court affirmed the three-judge districts court’s holding, and Maryland continues to count prisoners at their last known address.
Shapiro v. McManus, No. 14–990 (U.S. Dec. 8, 2015)
This case clarified that a three-judge panel is almost always required when congressional or legislative redistricting claims are brought before the courts. Unless the claim is “wholly insubstantial and frivolous,” a three-judge federal district court must be convened.
Maryland voters challenged the state’s congressional redistricting plan, saying it burdened their First Amendment rights of political association by drawing partisan-based lines. A single federal district court judge dismissed the claim, not a three-judge panel, concluding that no relief could be granted, instead of notifying the chief judge of the circuit to convene a three-judge court. The 4th U.S. Circuit Court of Appeals affirmed this single judge’s dismissal. Plaintiffs’ appealed the ruling, arguing that the amended federal statute mandates a three-judge panel to hear cases challenging the constitutionality of apportionment of congressional and state-wide districts.
The state made two claims defending the district court’s action. First was that the amended language of 28 U.S.C. 2284(a)(1) states “… unless he determines that three judges are not required.” Defendants argued this language provided the single federal district court judge the discretion to notify or not the chief judge of the circuit for a three-judge court.
The Supreme Court disagreed, stating that the plaintiff’s interpretation of this statute was incorrect. The correct reading should take into account another section, 28 U.S.C. § 2284(b)(3), that explicitly commands that a “single judge shall not… enter judgment on the merits.” All a district judge has to determine is that the request is covered by § 2284(a), nothing more.
The second claim was that a district judge is not required to refer a case for the convening of a three-judge court if the claim is insubstantial. The single district court judge dismissed the claim because he concluded that the allegations failed to state a claim for relief. He did so in accordance with the 4th Circuit’s precedent holding that “pleadings that do not state a claim, then by definition they are insubstantial and so properly are subject to dismissal by the district court without convening a three-judge court.” See Duckworth v. State Bd. of Elections, 332 F. 3d 769 (4th Cir. 2003). The Supreme Court held that this standard was inconsistent with its precedents. Consistent with the principles of Goosby v. Osser, 409 U.S. 512 (1973), constitutional insubstantiality occurs when claims are essentially fictitious, wholly insubstantial, obviously frivolous, and obviously without merit. The qualifiers were deemed to have legal significance. This is a low bar to pass according to the Supreme Court. Therefore, the petitioners claim was not constitutionally insubstantial. The judgment of the 4th Circuit was reversed and remanded.
Benisek v. Lamone, No. 1:13-cv-3233 (D. Md.), aff’d No. 17-333 (U.S. June 18, 2018), on remand (D. Md. Nov. 7, 2018), vacated & remanded with instructions to dismiss for lack of jurisdiction, No. 18-726 (U.S. June 27, 2019).
After Shapiro v. McManus was remanded to the three-judge federal district court, the plaintiffs’ partisanship claims moved to the discovery stage. More battles ensued regarding the issue of legislative privilege. State senators and representatives asserted legislative privilege with respect to testimony and documents pertaining to the drawing of the 2011 congressional maps. Motion for Protective Order (Jan. 9. 2017).
A three-judge federal district court granted the plaintiffs’ motion to compel the legislators to turn over documents and denied the state legislators’ motion for a protective order and to quash the subpoenas. The state legislators were ordered by the court to give depositions and to turn over documents regarding the drawing of congressional districts in 2011. Mem. & Order (Jan. 31, 2017).
In denying the claim of legislative privilege, the court applied a five-factor analysis that looked at: the relevance of the evidence sought, the availability of other evidence, the seriousness of the litigation and the issues involved, the role of the state in the case, and the purposes of the privilege. The court weighed the seriousness of the issues involved and concluded that the legislative privilege asserted by the state was overwhelmed by the important federal interests in the case. “Where the State faces liability, the legislative privilege becomes qualified when it stands as a barrier to the vindication of important federal interests and insulates against effective redress of public rights.” Mem. & Order at 3 (Jan. 31, 2017) (quoting Bethune-Hill v. Va. State Bd. of Elections, No. 3:14-cv-852, slip op. at 15, 114 F. Supp. 3d 323, 334 (E.D. Va. May 26, 2015) (three-judge court).
On Aug. 24, 2017, the court denied plaintiffs’ motion for a preliminary injunction and stayed the case pending the outcome of Gill v. Whitford, No. 16-1161 (U.S.), the Wisconsin case scheduled for oral argument October 3, 2017. In a 2-1 decision, the Maryland panel held that plaintiffs had not shown that they could likely prevail on each of the three elements of their First Amendment claim:
- the lines of a district were drawn with the specific intent to impose a burden on the plaintiffs and other similarly situated citizens because of how they voted or the political party with which they were affiliated;
- the plaintiffs and others were injured because their votes were diluted to such a degree that it resulted in a tangible and concrete adverse effect; and
- absent the mapmakers’ intent to burden a particular group of voters by reason of their views, the concrete adverse impact would not have occurred.
Mem. at 3.
Plaintiffs filed a jurisdictional statement on September 1, 2017.
On December 8, 2017, the U.S. Supreme Court postponed consideration of jurisdiction until it had heard the case on the merits. Order, No. 17-333. Oral argument was heard March 28, 2018.
On June 18, 2018, the Supreme Court affirmed the order of the district court. No. 17-333 (per curiam). The Court found that plaintiffs had not shown reasonable diligence in pursuing a preliminary injunction. Plaintiffs had not challenged the map as an intentional retaliation against them because of their political views until five years after the map was adopted. They did not seek a preliminary injunction until six years after the map was adopted. By the time the district court ruled on the request for a preliminary injunction, plaintiffs’ own deadline for affecting the 2018 election had already passed. When the district court ruled, Gill v. Whitford was still pending in the Supreme Court, leaving the law unsettled.
On remand, the parties agreed that discovery was complete and there were no material facts in dispute. After additional briefs, their cross-motions for summary judgment were heard on October 4, 2018.
The court issued its Memorandum Opinion on November 7, 2018. It found that:
- The State specifically targeted voters in the Sixth Congressional District who were registered as Republicans and who had historically voted for Republican candidates.
- The State specifically intended to diminish the value of those targeted citizens’ votes by removing a substantial number of them from the Sixth District and replacing them with Democratic voters for the purpose of denying, as a practical matter, the targeted voters the opportunity to elect the candidate of their choice.
- The State gave effect to its intent by, on net, removing about 66,000 Republican voters from the Sixth District and adding 24,000 Democratic voters in their place.
- The State meaningfully burdened the targeted Republican voters’ representational rights by substantially diminishing their ability to elect their candidate of choice.
- The State also burdened the Republican voters’ right of association, as demonstrated by voter confusion, diminished participation in Republican organizational efforts in the Sixth District, and diminished Republican participation in voting, as well as decreased Republican fundraising.
- These injuries were the direct result of the State’s purpose to convert the Sixth District from a solid Republican district to a Democratic district.
Id. at 4-5.
The court held that Maryland’s 2011 redistricting law “violates the First Amendment by burdening both the plaintiffs’ representational rights and associational rights based on their party affiliation and voting history.” Id. at 5. All three judges agreed on the violation of associational rights, only two on the violation of representational rights. Chief District Judge Bredar did not join on the violation of representational rights because that would require proof that the partisan gerrymander succeeded in changing the outcome of an election, proof for which “[t]here are too many variables in play—variables that courts are not equipped to measure.” Id. at 64 n.2.
The district court enjoined the use of the 2011 congressional plan in future elections and directed the State to submit to the court a plan that would address the constitutional violations in the Sixth District and apply:
traditional criteria for redistricting—such as geographic contiguity, compactness, regard for natural boundaries and boundaries of political subdivisions, and regard for geographic and other communities of interest—and without considering how citizens are registered to vote or have voted in the past or to what political party they belong.
Judgment at 1-2 (Nov. 7, 2018).
The court suggested that “the State might be well advised to establish a neutral commission to develop a conforming plan.” Id. at 2.
The court instructed the plaintiffs and the State to each submit by January 7, 2019 the name of a designee to serve with a magistrate judge appointed by the court as chair of a three-member Congressional District Commission, which would be tasked with drawing a new plan if the new plan submitted by the State by March 7, 2019 were rejected by the court. The deadline for the commission to submit a plan to the court would be July 8, 2019. Id. at 2-3.
The district court stayed its decision pending an expedited appeal to the U.S. Supreme Court. Order, No. 1:13-cv-3233 (D. Md. Nov. 16, 2018). The jurisdictional statement was filed December 3, 2018, No. 18-726. Oral argument was held March 26, 2019.
On June 27, 2019, in a 5-4 opinion written by Chief Justice Roberts, the U.S. Supreme Court vacated both decisions and remanded the cases with instructions to dismiss for lack of jurisdiction. The Court held that none of the tests used by the district court were “limited and precise standards that are clear, manageable, and politically neutral.” Slip op. at 19.
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League of Women Voters of Mich. v. Benson, No. 2:17-cv-14148, Op. & Order (Apr. 25, 2019)
The League of Women Voters of Michigan, numerous League members, and several Democratic voters challenged the 2011 congressional, senate, and house redistricting plans as violating their Fourteenth Amendment right to equal protection of the laws and their First Amendment rights to freedom of speech and association by deliberately discriminating against Democratic voters. The Michigan Senate, Republican members of Congress and of the Michigan Senate and House intervened to defend the plans.
The three-judge federal district court considered testimony and documents showing the motivations of the members, staff, and consultants who drew the plans and the process they followed. The court also considered expert evidence comparing the challenged plans to those drawn by the expert’s computer using programs to create districts that complied with traditional districting principles, such as compactness and respect for the boundaries of political subdivisions. The comparisons used various statistical measures of the partisan bias of a plan, such as the number of districts likely to be won by each party, the median-mean difference for each party, the efficiency gap for each plan, and “declination” (a comparison of the vote share in districts won by one party with the vote share in districts won by the other party). The experts also tested for durability (the likelihood that the partisan bias would survive a reasonable range of likely voting outcomes over the life of the plan). The experts then predicted whether a plan with less partisan bias would have increased the ability of the plaintiffs in each district to elect a representative of their choice.
Based on this evidence, the court applied the standard used in Common Cause v. Rucho, No. 1:16-cv-1026, Mem. Op. (M.D.N.C. Aug. 27, 2018), to establish a violation of the Fourteenth Amendment’s Equal Protection Clause: (1) a predominant intent to subordinate the adherents of one political party and entrench a rival party in power, (2) a discriminatory effect diluting a plaintiff’s vote by cracking or packing, and (3) no legitimate state interest to justify the discrimination. It applied a similar three-part test used in Ohio A. Philip Randolph Inst. v. Householder, No. 1:18-cv-357, Order Denying Motion for Summary Judgment (S.D. Ohio Feb. 15. 2019), to establish a violation of the First Amendment: (1) a specific intent to burden individuals or entities that support a disfavored candidate or political party, (2) an actual burden imposed on the political speech or associational rights of those individuals or entities, and (3) that the intent to burden actually caused the burden to be imposed.
The court found that partisan considerations played a central role in every aspect of the redistricting process, from the historical election results in the database, to the partisan operatives who drew the plans, to the partisan violations of Michigan’s statutory traditional districting principles, to the exclusion of Democratic members from discussions about the plans until after they had been voted out of committee. The court found that the challenged districts had intentionally been drawn to disadvantage Democratic candidates and voters and that, over the four general elections that had been held under the plans, the plans had the intended result. In a challenged district where a plaintiff resided and an unbiased plan would likely not have diluted their vote, the court struck down the district as violating the plaintiff’s right to equal protection under the Fourteenth Amendment. In a challenged district where no plaintiff resided, or where a plaintiff resided but an unbiased plan would not have improved the partisan lean of the district, the court nevertheless struck down the district as violating the plaintiff’s right to freedom of association under the First Amendment.
The court gave the Michigan legislature until August 1, 2019, to draw remedial plans, but also set a schedule for the court to appoint a special master to draw a plan if the legislature failed or the court were to find the remedial plan invalid.
On May 10, 2019, the Michigan Senate, No. 18A1170, and the Michigan House and congressional intervenors, No. 18A1171, applied to the U.S. Supreme Court for a stay of the judgment of the district court pending a direct appeal.
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Mississippi only faced one challenge to its 2010 redistricting plan, under the theory that the state legislative plan was malapportioned in violation of the 14th Amendment. The only other challenge was to the federal statute that sets the number of representatives at 435, claiming the law violates the constitutional principle of “One person, one vote” from Reynolds v. Sims. Both cases were resolved in the government’s favor.
Clemons v. U.S. Dep't of Commerce, No. 3:09-cv-104 (N.D. Miss. July 8, 2010), vacated and remanded with instructions to dismiss for lack of jurisdiction, No. 10-291 (U.S. Dec. 13, 2010)
Registered voters across the country filed suit in a Mississippi federal district court in 2010 alleging that § 2a of Title 2 of the United States Code, which freezes the number of U.S. representatives at 435, is unconstitutional under the principle of “one-person, one-vote.” Freezing the number of U.S. representatives naturally leads to underrepresentation of some districts and over-representation of others.
The three-judge federal district court granted the government’s motion for summary judgment.
Smith v. Hosemann, No. 3:01-cv-855 (S.D. Miss. Dec. 30, 2011)
When the 2001 Mississippi Legislature failed to enact a congressional redistricting plan based on the 2000 Census and reflecting a reduction from five representatives to four, a three-judge federal district court adopted a four-district plan and retained jurisdiction “to implement, enforce, and amend [its] order as shall be necessary and just.” See Smith v. Clark, 189 F. Supp. 2d 548, 559 (S.D. Miss. Feb. 26, 2002), aff’d sub. nom. Branch v. Smith, 538 U.S. 254 (2003).
When the 2011 Mississippi Legislature likewise failed to enact a plan based on the 2010 Census and reflecting population shifts within the state, the same panel amended its 2001 judgment to impose a new plan that met equal-population requirements.
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Although there has not been a case before the U.S. Supreme Court from New York in the 2010 cycle, state courts have been busy. Cases dealt with prisoner relocation, the actual size of the Legislature, the legislative privilege not to testify or produce documents relating to enactment of a redistricting plan, and even the language drafted for a ballot measure. At first glance the language of a ballot measure may not seem to be of much import, but commissions are being created all over the country, and how a commission is described on the ballot can help voters decide whether they want to approve a major change to the redistricting process or not.
Favors v. Cuomo, No. 1:11-cv-5632 (E.D. N.Y.)
In November 2011, plaintiff voters complained that the legislative process for enacting legislative and congressional redistricting plans based on the 2010 census had stalled and would not produce new districts in time for the 2012 elections. They demanded appointment of a special master to draw plans. When the Legislature succeeded in enacting plans for the Senate and the state Assembly, plaintiffs challenged the plans for various violations of § 2 of the Voting Rights Act and the Equal Protection Clause of the 14th Amendment. Both the Senate majority (Republicans) and Senate minority (Democrats) intervened as defendants. The Senate minority defendants sought discovery from the Senate majority defendants of all documents determining of the size of the Senate following the 2010 census. The Senate majority, Assembly majority (Democrats), and Assembly minority (Republicans) defendants moved for an order denying discovery of documents and information protected by the legislative privilege. After surveying the use of the legislative privilege in previous redistricting cases and observing that the legislative privilege is a qualified one when raised by a state legislator in federal court, and that the disruption to the legislative process must be weighed against the need for the evidence and the seriousness of the issues involved, a U.S. magistrate judge applied a five-factor analysis and ordered the parties to submit for in camera inspection the documents for which they claimed a privilege. Mem. & Order, 285 F.R.D. 187 (E.D.N.Y. Aug. 10, 2012).
Following the in camera inspection, the magistrate judge found that certain documents and communications were not “legislative” and thus not entitled to the privilege: (1) those categorized as public statements or concerning the preparation of public statements; (2) those prepared in anticipation of litigation; (3) inquiries from members of the public or media and responses thereto; (4) public remarks, statements crafted for public relations purposes, and public speeches made outside the Legislature by legislators or their representatives; (5) public testimony; (6) efforts made in connection with negotiation for or securing of government contracts, and remuneration of contractors or service providers; (7) those concerning administrative tasks; (8) correspondence with or about national political organizations; (9) submissions to the Department of Justice related to compliance with Section 5 of the VRA; and (10) any other means of informing those outside the legislative forum. Mem. & Order at 16-18 (E.D.N.Y. Feb. 8, 2013).
After weighing plaintiffs’ need for the evidence and the seriousness of the issues involved against the disruption to the legislative process caused by disclosing the evidence, the magistrate judge ordered that documents and communications relating to the following subjects be disclosed: (1) the reasons for population deviations in the Senate districts; (2) the reasons for adding and locating a 63rd District; (3) the three traditional redistricting principles used by the Senate to justify its plan; (4) the analysis of third-party plans defendants submitted to the court; (5) the impact of prisoner reallocation on regional variations in district populations; (6) the consideration of race and ethnicity in prisoner reallocation; (7) awareness that the Senate plan may dilute minority votes; and (8) the identities of and contact information for those with relevant information. Mem. & Order at 23-37.
Leib v. Walsh, No. 4275-14 (N.Y. Sup. Ct. (trial), Albany County Sep. 17, 2014)
In 2013 the New York Legislature approved a concurrent resolution to amend the state Constitution to include the creation of an “independent” redistricting commission to draw legislative and congressional redistricting plans starting in 2020. This proposed amendment was to be submitted to voters during the Nov. 5, 2014 election. The State Board of Elections approved the amendment with the following language: “the proposed amendment establishes an independent redistricting commission every ten years beginning in 2020 …” One of the main issues in question was the use of the qualifier “independent” in the ballot language.
Plaintiffs sued the State Board of Election in New York State trial court for approving this ballot initiative with “misleading, ambiguous, illegal, or inconsistent” language. The plaintiffs argued that the use of the term “independent” was misleading, since the commission’s plan would be advisory, with the Legislature having the final say. The commissioners of the State Board of Elections argued that the language in the amendment was subject to a high degree of judicial deference in an area where the board had expertise. In essence, the State Board of Elections defended the language of the ballot initiative based on its own interpretation of its meaning. It asked the court to apply the “arbitrary and capricious” standard to reviewing its actions in approving the language in the ballot initiative. In addition, even if the standard of review were that the language only has to be misleading (not necessarily arbitrary and capricious), the board argued that the commission could independently create its own plan without legislative interference. It would be bound by newly created principles also in the amendment when it drew district lines, and the legislature would also be bound by these same principles if the commission’s plan were to be rejected. In essence, the board argued that “independent” was the correct word here, and that it was not misleading.
The state trial court agreed with the plaintiff that the term “independent” was indeed misleading because the ultimate outcome was subject to control by others (the Legislature). The Legislature could reject it for unstated reasons and draw its own lines, therefore calling into question the true independence of the commission. Also, the court found that the standard of review was “misleading, ambiguous, illegal, or inconsistent,” based on previous case law interpreting the challenge of specific ballot language or ballot abstracts. The court then held that to remedy this matter, the word “independent” must be stricken from the ballot.
The legislative and congressional maps drawn by the North Carolina General Assembly in 2011 have been the subject of major litigation throughout this decade.
Nine Senate districts and 19 House districts were struck down as racial gerrymanders and ordered by a federal three-judge court in Covington v. North Carolina, No. 1:15-cv-399 (M.D.N.C. Aug. 11, 2016), to be redrawn. The remedial maps enacted by the General Assembly in 2017, N.C. Sess. Laws SL 2017-207 (Senate) and SL 2017-208 (House), affected not only the 28 districts that had been struck down but also districts adjacent to them and others beyond. Those maps were modified by the Covington court for not having cured the racial gerrymanders. Mem. Op. & Order (Jan. 21, 2018). The court’s modifications to four House districts in Wake County and one House district in Mecklenburg County were rejected by the U.S. Supreme Court as not being required by federal law. No. 17-1364, 585 U. S. ____ (June 28, 2018) (per curiam). The modifications to the Wake County districts were reinstated by a state three-judge court in North Carolina State Conference of NAACP Branches v. Lewis, No. 18 CVS 002322 (N.C. Super. Ct. Wake County Nov. 2, 2018), holding that the North Carolina Constitution prohibits mid-decade redistricting unless required by federal law. Remediation of the racial gerrymanders was not complete until June 25, 2019, when the General Assembly enacted the Special Master’s remedial map for those districts as drawn for the federal court in Covington v. North Carolina, N.C. Sess. Laws SL 2019-46.
In a separate suit before the state court that had ordered the reinstatement of the 2011 Wake County House districts, an additional 21 Senate districts and 55 House districts were ordered redrawn because they were held to be extreme partisan gerrymanders under the North Carolina Constitution. Common Cause v. Lewis, No. 18 CVS 014001 (N.C. Super. Ct. Wake County Sept. 3, 2019). The General Assembly enacted remedial maps on September 17, 2019, N.C. Sess. Laws SL 2019-219 (Senate), SL 2019-220 (House), and submitted them to the court for its review.
Congressional districts 1 and 12 were struck down as racial gerrymanders and ordered by a federal court to be redrawn. Harris v. McCrory, No. 1:13-CV-949 (M.D.N.C. Feb. 5, 2016). On February 19, 2016, the General Assembly enacted a remedial plan, N.C. Sess. Laws SL 2016-1, contingent on appeal of the district court’s order. The U.S. Supreme Court affirmed striking down the districts. Cooper v. Harris, No. 15-1262, 581 U.S. ____ (May 22, 2017).
In the same suit, a challenge to the 2016 remedial plan as a partisan gerrymander was rejected because plaintiffs had not provided the court with a suitable standard to evaluate their partisan gerrymander claim. Mem. Op. (M.D.N.C. June 2, 2016), aff’d No. 16-166, 585 U.S. ____ (June 28, 2018).
A separate suit in federal court, Common Cause v. Rucho, No. 1:16-cv-1026 (M.D.N.C.), resulted in two more trips to the Supreme Court challenging the 2016 remedial plan for congressional districts as a partisan gerrymander. The federal court struck down the plan as a partisan gerrymander, Mem. Op. (Jan. 9, 2018), but the district court’s decision was vacated and remanded for further consideration in light of Gill v. Whitford, No. 16-1161, 585 U.S. ___ (June 18, 2018), which had set forth requirements for plaintiffs to prove standing to make a partisan gerrymandering claim. No. 17-1295, 585 U.S. ___ (June 25, 2018). The district court again struck down the congressional districts as partisan gerrymanders, Mem. Op. (Aug. 27, 2018). On appeal, the Supreme Court noted that “[e]xcessive partisanship in districting leads to results that reasonably seem unjust,” and that partisan gerrymandering is “incompatible with democratic principles,” No. 18-422, slip op. at 30, 588 U.S. ___ (June 27, 2019), but held that the U.S. Constitution contains no “limited and precise standards that are clear, manageable, and politically neutral” for determining when partisanship has become excessive. Slip op. at 19. The Court invited the states to articulate and enforce their own limits on partisan gerrymandering. Slip op. at 31. (“Our conclusion does not condone excessive partisan gerrymandering. Nor does our conclusion condemn complaints about districting to echo into a void. . . . Provisions in state statutes and state constitutions can provide standards and guidance for state courts to apply.”) It vacated the district court’s decision and remanded the case with instructions to dismiss for lack of jurisdiction. Slip op. at 34.
On September 27, 2019, a new suit challenged the congressional plan in state court as a partisan gerrymander in violation of the North Carolina Constitution’s Equal Protection, Free Elections, Freedom of Speech, and Freedom of Assembly Clauses. Harper v. Lewis, No. 19 CVS 012667 (N.C. Super. Ct. Wake County Sept. 27, 2019). The claims were similar to those that had been successful in the same court against the legislative plan in Common Cause v. Lewis, No. 18 CVS 014001 (N.C. Super. Ct. Wake County Sept. 3, 2019). The case was assigned to the same three-judge panel as had upheld the partisan gerrymandering claims against the legislative plans.
Harris v. McCrory, No. 1:13-CV-949 (M.D.N.C. Feb. 5, 2016); aff’d sub nom. Cooper v. Harris, No. 15-1262, 581 U.S. ____ (May 22, 2017)
Plaintiffs alleged that North Carolina’s 1st and 12th Congressional Districts, as drawn by the General Assembly in 2011, violated the Equal Protection Clause of the Fourteenth Amendment. They argued that race was the predominant motive in drawing the challenged districts. The federal district court ruled in favor of the plaintiffs on this claim.
The districts in question saw an increase in African-American voters due to the General Assembly’s goal for the black voting-age population (BVAP) to be greater than 50 percent in those districts. These districts previously had BVAP’s under 50 percent and were still able to elect their preferred candidates. This is the criterion imposed by the VRA, not a specific percentage, the court held. Therefore, the court rejected these two districts, requiring the North Carolina General Assembly to draw new congressional districts. On Feb. 19, 2016, the General Assembly did so on a contingent basis, pending appeal of the district court’s order. Session Law 2016-1.
North Carolina appealed to the U.S. Supreme. The court affirmed the lower court’s judgment in a 5-3 holding that saw Justice Clarence Thomas sign on to Justice Elena Kagan’s majority opinion. The main point of contention was with respect to the 12th Congressional District. The state argued that it drew the district with partisan intentions in mind, not racial. The Supreme Court disagreed with this finding as it affirmed the lower court’s findings suggesting that there was enough evidence in the record to prove that the General Assembly acted with race-based redistricting intentions in mind. This included direct evidence of the General Assembly’s intent behind the creation of the 12th District, including hours of testimony, specifically testimony from the chairs of two committees preparing the plan. In addition, there was circumstantial evidence that supported the plaintiffs’ claims. An expert report was introduced that showed how a black voter, irrespective of party affiliation, was three to four times more likely than a white voter to cast a ballot within the 12th District’s borders.
The defendants also argued that the plaintiffs must introduce an alternative map showing that the state could have achieved its same political objectives with a map showing greater racial balance, based on its holding in Easley v. Cromartie, 532 U. S. 234 (2001) (Cromartie II). The Supreme Court rejected this interpretation of Cromartie II, writing that an alternative map is just one of many factors, an evidentiary tool, to show a violation has occurred. After weighing all these factors, the Supreme Court decided that plaintiffs do not have to introduce an alternative map. The Supreme Court affirmed the three-judge federal district court’s holding striking down the 2011 congressional maps.
The General Assembly’s 2016 contingent remedial plan was challenged by plaintiffs as a partisan gerrymander. The three-judge court denied the challenge because plaintiffs had not provided the court with a suitable standard to evaluate their partisan-gerrymander claim. Mem. Op. (M.D.N.C. June 2, 2016).
Plaintiffs appealed to the U.S. Supreme Court, arguing that the plan violated the Equal Protection Clause of the Fourteenth Amendment by drawing district lines to subordinate Democratic voters and entrench Republicans in power, Juris. Statement, No. 16-166 at 24-30 (U.S. Aug. 3, 2016), and violated the First Amendment by imposing burdens on a disfavored political party and its voters without a compelling governmental interest, id. at 30-32. The Supreme Court affirmed the decision of the district court rejecting the challenge. Order, No. 16-166, 585 U.S. ____ (June 28, 2018).
Common Cause v. Rucho, No. 1:16-cv-1026 (M.D.N.C. Jan. 9, 2018), vacated & remanded, No. 17-1295 (U.S. June 25, 2018), on remand (M.D.N.C. Aug. 27, 2018), vacated & remanded with instructions to dismiss for lack of jurisdiction, No. 18-422 (U.S. June 27, 2019).
Plaintiffs alleged that North Carolina’s 2016 contingent congressional plan constituted a partisan gerrymander. They alleged that the plan violated the First Amendment, the Equal Protection Clause of the Fourteenth Amendment, and Article I, § 2 (Members chosen by the People) and § 4 (the Elections Clause) of the U.S. Constitution. Complaint (Aug. 5, 2016).
They alleged that the plan violated their First Amendment rights by favoring some voters and burdening others, by packing Democratic voters into three districts where they were a safe majority and cracking them among 10 districts where they were a minority unable to affect the outcome of elections in those districts. They alleged that the plan violated the Equal Protection Clause because the right to vote is fundamental, and drawing districts in order to harm a “politically weak or unpopular group” is not a legitimate governmental interest. Therefore, the plan would fail strict scrutiny. They alleged that the plan violated art. I, § 2, because it caused representatives to be chosen by the majority party in the state legislature, rather than by the voters in each district. They alleged that the plan violated art. I, § 4, because the authority granted a state legislature to prescribe the times, places and manner of elections for the House of Representatives does not include the power to dictate or control election outcomes. The plan, they alleged, virtually guarantees that candidates favored by the majority party in the legislature would be elected in 10 of the 13 districts.
The legislative defendants moved to dismiss the complaint on grounds of standing and justiciability. Mem. in Support of Mot. to Dismiss (Nov. 28, 2016). They argued that no one has standing to raise a statewide challenge to a partisan gerrymander, since the challenge must be district-specific, and that no plaintiff resided in seven of the 13 districts. They argued that plaintiffs’ claims were based on legal theories that had never been used by a court to strike down a partisan gerrymander.
The district court rejected defendant’s motion to dismiss. The court held that the plaintiff’s claims were justiciable. Mem. Op. (Mar. 3, 2017). The trial date was set for June 26, 2017, consolidated with League of Women Voters v. Rucho, No. 1:16-cv-1164 Complaint (M.D.N.C. Sep. 22, 2016).
Following the Supreme Court’s decision to hear a direct appeal in the Wisconsin case of Gill v. Whitford, No. 16-1161 (U.S. June 19, 2017) (mem.) during the 2017 October term, the legislative defendants in Common Cause v. Rucho and League of Women Voters v. Rucho moved to stay all proceedings in those cases pending the decision in Gill v. Whitford. Motion to Stay (M.D.N.C. June 26, 2017). The motion was denied. Mem. Op. (M.D.N.C. Sept. 8, 2017). A four-day bench trial began October 16, 2017. Trial Calendar (M.D.N.C. Sept. 11, 2017).
The three-judge district court found for the plaintiffs on all their constitutional claims. Mem. Op. (M.D.N.C. Jan. 9, 2018). The legislative defendants did not dispute that the North Carolina General Assembly intended for the 2016 Plan to favor supporters of Republican candidates and disfavor supporters of non-Republican candidates, nor that the plan had its intended effect. They used past election results to determine which voting districts had favored Republican or Democratic candidates and therefore were likely to do so in the future and to draw districts where Republican candidates would prevail in 10 of the 13 congressional districts throughout the decade. The legislative defendants did not argue that their disfavoring of supporters of non-Republican candidates advanced any democratic, constitutional, or public interest. Rather, they argued that a partisan gerrymander was not against the law. Id. at 2-15.
The district court found that the lack of competitive districts had a statewide impact, making it more difficult for non-Republicans to recruit candidates and raise money and more expensive to educate voters, and had driven down voter registration, voter turnout, and cross-party political discussion and compromise. Because these harms were not district-specific, the court found that plaintiffs had standing to assert them statewide. Id. at 28-39.
The three-judge court rejected the legislative defendants’ argument that the Founding Fathers viewed some amount of partisan gerrymandering as constitutionally permissible. Rather, they said the Framers sought to discourage the rise of political parties and gave Congress, in art. I, § 4, the power to override state laws governing the time, place and manner of elections, in order to prevent a state from adopting electoral regulations that favored particular parties or factions. The court said that the fact that partisan gerrymanders may have existed from the founding era to the present day does not immunize them from constitutional scrutiny, just as the existence of malapportionment and racial gerrymandering from the founding era to the 1960s did not immunize them. Id. at 56-61.
The court held that, if the 2016 plan was enacted with discriminatory intent and had a discriminatory effect, it would nevertheless withstand constitutional scrutiny under the Equal Protection Clause, if its discriminatory effects were attributable to the state’s political geography or another legitimate redistricting objective. Id. at 81.
Discriminatory intent means that “the state redistricting body acted with an intent to ‘subordinate adherents of one political party and entrench a rival party in power.’” Id. at 86 (quoting Ariz. State Leg. v. Ariz. Indep. Redistricting Comm’n, 135 S. Ct. 2652, 2658 (2015)).
The court found that, in enacting the 2016 plan, Republicans had exclusive control over the process, they completed drawing the plan before the committee met and adopted criteria for the plan, the criteria required reasonable efforts to maintain in the 2016 plan the 10-3 Republican partisan advantage in the 2011 plan, and the plan drafters used results from past elections to identify concentrations of voters who had historically supported Democratic candidates and then crack and pack them to reduce the number of districts that Democrats were likely to win in the future. Id. at 86-90. The court found that expert testimony from Dr. Jonathan Mattingly and Dr. Jowei Chen analyzing computer-generated simulated districting plans provided “strong evidence that the General Assembly intended to subordinate the interests of non-Republican voters and entrench the Republican Party in power” Id. at 91-96.
On the question of how to prove discriminatory effect, the district court observed that the test adopted by the U.S. Supreme Court in Davis v. Bandemer, 478 U.S. 109, 133 (1986) (plurality op.), that a plan would result in “continued frustration of the will of a majority of the voters or effective denial to a minority of voters of a fair chance to influence the political process,” had been abandoned by the Court in Vieth v. Jubelirer, 541 U.S. 267 (2004), without agreeing on a test to replace it. Mem. Op. at 118 (M.D.N.C. Jan. 9, 2018). For its own test, the three-judge court drew on the Supreme Court’s definition of partisan gerrymandering in Ariz. State Leg. v. Ariz. Indep. Redistricting Comm’n, 135 S. Ct. at 2658, holding that a plaintiff must prove that a challenged plan “subordinate[s the interests] of one political party and entrench[es] a rival party in power” by being biased against supporters of the disfavored party in a way that “is likely to persist in subsequent elections such that an elected representative from the favored party will not feel a need to be responsive to constituents who support the disfavored party.” Mem. Op. at 119-20 (alterations in original).
The court reviewed the precinct-level historical election data used by the General Assembly to draw the plan and the results of the 2016 election held under the plan. It found that all 10 Republican districts and all three Democratic districts were “safe” seats, i.e., highly unlikely to change parties in subsequent elections, whose incumbents had little reason to be responsive to political minorities in their district. Id. at 121-23. The court reviewed the expert testimony of Dr. Simon Jackson, who analyzed the partisan asymmetry of the 2016 plan using three statistical measures called the “efficiency gap,” “partisan bias,” and the “mean-median difference.” It found that “Dr. Jackman’s partisan asymmetry analyses provide strong evidence that the 2016 Plan subordinates the interests of supporters of non-Republican candidates and serves to entrench the Republican Party’s control of the state’s congressional delegation.” Id. at 123-40. The court also reviewed expert testimony by Dr. Mattingly and Dr. Chen using historical election results to predict the results of future elections under the plan (just as the General Assembly had done), and compared those results to the results under their thousands of computer-generated plans. The court found that this analysis provided “additional strong evidence that the 2016 Plan had the effect of discriminating against non-Republican voters.” Id. at 140-42. The court found that the 2016 plan had achieved and would continue to achieve the partisan advantage the General Assembly’s criterion had called for. Id. at 144.
Having found that the 2016 plan was enacted with a discriminatory intent and had a discriminatory effect, the court considered whether the plan’s discriminatory effects were attributable to the state’s political geography or another legitimate redistricting objective. The court found that the discriminatory effect was not caused by a political geography that included clusters of Democratic voters in urban areas, since the plan repeatedly divided those clusters, cracking Democratic voters into multiple districts and submerging likely Democratic voters in pro-Republican districts. Id. at 146-48. The court also found that the discriminatory effect was not caused by the goal of avoiding incumbent pairs, since the 2016 plan paired two incumbents, but 1,000 of Dr. Chen’s plans paired no incumbents. Accordingly, the court held that the 2016 plan constituted an unconstitutional partisan gerrymander in violation of the Equal Protection Clause of the Fourteenth Amendment. Id. at 148-52.
In considering the plaintiffs’ claims under the First Amendment, the court found that:
The 2016 Plan discriminates against a particular viewpoint: voters who oppose the Republican platform and Republican candidates. The 2016 Plan also discriminates against a particular group of speakers: non-Republican candidates and voters who support non-Republican candidates. The General Assembly’s use of Political Data—individuals’ votes in previous elections—to draw district lines to dilute the votes of individuals likely to support non-Republican candidates imposes burdens on such individuals based on their past political speech and association. And the 2016 Plan’s partisan favoritism excludes it from the class of “reasonable, politically neutral” electoral regulations that pass First Amendment muster.
Id. at 159.
In considering plaintiffs’ claims under Article I, § 2 (“the House of Representatives shall be composed of Members chosen . . . by the People”), and § 4, cl. 1 (the Elections Clause), the court held that:
(1) the Elections Clause did not empower State legislatures to disfavor the interests of supporters of a particular candidate or party in drawing congressional districts; (2) the 2016 Plan’s pro-Republican bias violates other constitutional provisions, including the First Amendment, the Equal Protection Clause, and Article I, section 2; and (3) the 2016 Plan represents an impermissible effort to ‘dictate electoral outcomes’ and ‘disfavor a class of candidates.’
Id. a 178.
The three-judge district court ordered the North Carolina General Assembly to draw new congressional districts by Jan. 24, 2018, and submit them to the court by Jan. 29 for a hearing on Feb. 12.
The legislative defendants applied to the U.S. Supreme Court to stay the district court’s Jan. 9 order pending a direct appeal. (Jan. 12, 2018). The Supreme Court granted the stay, pending the timely filing and disposition of an appeal. No. 17A745 (Jan. 18, 2018). The jurisdictional statement was filed Mar. 12, 2018. No. 17-1295.
On June 25, 2018, the Supreme Court vacated the district court’s decision and remanded the case to the district court for further consideration in light of Gill v. Whitford. Order, No. 17-1295.
On remand, the three-judge district court held that at least one of the named plaintiffs residing in each of the state’s 13 congressional districts had standing to assert a partisan vote dilution challenge under the Equal Protection Clause to each district in the 2016 plan. Mem. Op. at 33 (M.D.N.C. Aug. 27, 2018). It also held that Gill v. Whitford did not call into question its earlier conclusions that plaintiffs had standing to assert First Amendment and Article I challenges to the 2016 plan, and that all of plaintiffs’ constitutional claims were justiciable. Id.
Turning to the merits, we conclude that Plaintiffs’ evidence establishes that 12 of the 13 districts in the 2016 Plan violate the Equal Protection Clause because, in drawing each of those 12 districts, the General Assembly’s predominant intent was to dilute the votes of voters who favored non-Republican candidates; the General Assembly’s manipulation of each of those district’s lines has had the effect of diluting such voters’ votes; and no legitimate state interest justifies that dilution. We further reaffirm our previous conclusion that the 2016 Plan violates the First Amendment by unjustifiably imposing burdens on Plaintiffs based on their previous and ongoing political expression and affiliation. Finally, we again hold that the 2016 Plan violates Article I by exceeding the scope of the General Assembly’s delegated authority to enact congressional election regulations and interfering with the right of “the People” to choose their Representatives.
Id. at 33-34.
In reaching its conclusions, the court examined the partisan composition of each district using historic election results from the 20 statewide elections described in the General Assembly’s Adopted Criteria, the seven statewide elections used by Dr. Hofeller when he drew the plan, and the 2016 congressional election. It confirmed that the partisan behavior of each district was approximately as Dr. Hofeller had intended and predicted. By superimposing district lines on color-coded maps of partisan voting strength, the court found that all but one of the Republican districts had increased its Republican voting strength by cracking areas that had concentrations of Democrats. The Democrats were either stranded in districts where they had no chance to win or packed into districts where a win was guaranteed. This cracking included splitting counties, cities, and communities of interest along partisan lines. Id. at 205-51. District 5, on the other hand, did not include partisan splits, so it was found not to violate the Equal Protection Clause. Id. at 222-24.
The court enjoined the use of the 2016 plan in any election after the November 6, 2018 election and asked the parties to advise it on whether it should enjoin the use of the plan in the 2018 election. Id. at 289-90.
Upon receiving advice from the parties that it was too late to impose a new plan for the 2018 election, the court declined to require it. Order (M.D.N.C. Sept. 4, 2018).
The court stayed its August 27 order pending the timely filing and disposition of an appeal to the U.S. Supreme Court. The court imposed two conditions on the Legislative Defendants for the stay: (1) that they would file their jurisdictional statement with the Supreme Court by October 1, 2018, and (2) that they would seek no requests for extension of time while their appeal was pending before the Supreme Court. If either condition were breached, the court would proceed to draw its own remedial plan, reserving judgment on whether it would consider a remedial plan drawn by the General Assembly. Order (M.D.N.C. Sept. 12, 2018).
The jurisdictional statement was filed October 1, 2018. Rucho v. Common Cause, No. 18-422. Oral argument was held March 26, 2019.
On June 27, 2019, in a 5-4 opinion written by Chief Justice Roberts, the Supreme Court vacated the decision and remanded the case with instructions to dismiss for lack of jurisdiction. The Court held that none of the tests used by the district court were “limited and precise standards that are clear, manageable, and politically neutral.” Slip op. at 19.
Harper v. Lewis, No. 19 CVS 012667 (N.C. Super. Ct. Wake County).
On September 27, 2019, a new suit challenged the congressional plan in state court as a partisan gerrymander in violation of the North Carolina Constitution’s Free Elections, Equal Protection, Freedom of Speech, and Freedom of Assembly Clauses. Complaint. The claims were similar to those that had been successful in the same court against the legislative plan in Common Cause v. Lewis, No. 18 CVS 014001 (N.C. Super. Ct. Wake County Sept. 3, 2019). Plaintiffs moved for a preliminary injunction, arguing that neither the relevant facts nor the law were in dispute after Common Cause v. Lewis, and that a remedial plan could be in place by late November. Plaintiffs’ Motion for Preliminary Injunction (Sept. 30, 2019). The case was assigned to the same three-judge panel as had upheld the partisan gerrymandering claims against the legislative plans.
Backus v. South Carolina, No. 3:11-cv-3120 (D.S.C. Mar. 9, 2012), aff’d, No. 11-1404 (U.S. Oct. 1, 2012) (mem.)
Registered voters in South Carolina challenged the General Assembly’s state and congressional redistricting plans in federal court. They argued that the maps as drawn in the 2010 cycle denied African-American voters equal protection under the law, violating the 14th Amendment to the U.S. Constitution and § 2 of the Voting Rights Act. The plaintiffs argued that the new plans unnecessarily packed African-American voters into specific districts.
The three-judge federal district court rejected the plaintiffs’ challenge, stating that the plaintiffs had failed to prove that the General Assembly acted with a discriminatory purpose. In addition, the plaintiffs failed to prove a discriminatory effect. The plaintiffs appealed to the U. S. Supreme Court. The court summarily affirmed the lower court’s ruling.
The plaintiffs moved the trial court for relief from the dismissal due to the holding in Shelby County v. Holder, No. 12-96, 570 U.S. ____ (June 25, 2013). Once again, the plaintiffs were denied by the three-judge federal district court, Order Denying Motion for Relief, (Mar. 10, 2014), and the U.S. Supreme Court. No. 13-1461 (U.S. Oct. 6, 2014) (appeal dismissed for want of jurisdiction) (mem.).
No major cases.
Ohio A. Philip Randolph Inst. v. Householder, No. 1:18-cv-357, Op. & Order (S.D. Ohio May 3, 2019)
Seventeen Ohio Democratic voters, who collectively resided and voted in each of Ohio’s 16 congressional districts, and five Democratic and nonpartisan organizations based in Ohio, challenged the 2011 congressional plan as violating their Fourteenth Amendment right to equal protection of the laws, their First Amendment right to freedom of association, and the Elections Clause of Article I §§ 2 and 4 of the U.S. Constitution (members of the House to be elected by the people in a manner prescribed by the legislature), by deliberately discriminating against Democratic voters. Members of the Ohio congressional delegation intervened to join the Speaker of the Ohio House, the President of the Ohio Senate, and the Secretary of State defending the plan.
The three-judge federal district court followed the lead of Common Cause v. Rucho, No. 1:16-cv-1026, Mem. Op. (M.D.N.C. Aug. 27, 2018), appeal docketed, No. 18-422 (U.S. Oct. 1, 2018); and League of Women Voters of Mich. v. Benson, No. 2:17-cv-14148, Op. & Order (Apr. 25, 2019). It considered testimony and documents showing the motivations of the members, staff, and consultants who drew the plans and the process they followed. The court also considered expert evidence comparing the challenged plans to those drawn by the expert’s computer using programs to create districts that complied with traditional districting principles, such as compactness and respect for the boundaries of political subdivisions. The comparisons used various statistical measures of the partisan bias of a plan, such as the efficiency gap (a comparison of the votes wasted by each party), the votes-seats curve (how each party’s share of the seats changes as it share of the vote changes), the mean-median difference (a comparison of each party’s average vote in all districts to the vote in its median district), and “declination” (a comparison of the vote share in districts won by one party with the vote share in districts won by the other party, shown as angles on a graph). The experts also tested for durability (the likelihood the partisan bias would survive normal shifts in voter preferences over the life of the plan). They found that districts that were not competitive were not responsive to changes in voter preferences and were not likely to change parties over the life of the plan. The experts then predicted whether a plan with less partisan bias would have increased the ability of the plaintiffs in each district to elect a representative of their choice.
Based on this evidence, the court applied the standard used in Rucho and Benson to establish a violation of the Fourteenth Amendment’s Equal Protection Clause: (1) a predominant intent to subordinate the adherents of one political party and entrench a rival party in power, (2) a discriminatory effect diluting a plaintiff’s vote by cracking or packing, and (3) no legitimate state interest to justify the discrimination. The court applied a similar three-part test used in Rucho and Benson to establish vote dilution under the First Amendment: (1) a specific intent to burden individuals or entities that support a disfavored candidate or political party, (2) an actual burden imposed on the political speech or associational rights of those individuals or entities, and (3) that the intent to burden actually caused the burden to be imposed.
The court found that partisan considerations played a central role in every aspect of the redistricting process, from the historical election results in the database, to the partisan operatives who drew the plans, to the partisan violations of traditional districting principles, to the exclusion of Democratic members from discussions about the plans until they were introduced. The court found that the challenged districts had intentionally been drawn to disadvantage Democratic candidates and voters and that, over the four general elections that had been held under the plan, the plan had the intended result. In a challenged district where a plaintiff resided and an unbiased plan would likely not have diluted their vote, the court struck down the district as violating the plaintiff’s right to equal protection under the Fourteenth Amendment. It likewise found vote dilution under the First Amendment. All 16 districts were struck down.
To establish a violation of First Amendment freedom of association, the court weighed the burden imposed by the plan on the plaintiffs’ associational rights against the precise interests put forward by the state as justifications for the burden.
The court found that the plan had an extreme partisan bias against Democrats. It further found that a lack of competitive districts unfairly burdened Democratic voters by hindering their efforts to recruit candidates and raise money for campaigns. Democratic districts were less competitive than Republican districts. Splitting neighborhoods, cities, and counties, and the bizarre shapes of some districts, made it more difficult for candidates to campaign and for election administrators to assign voters to the correct district. The splits affected Democratic voters more than Republican voters. The court rejected, as not supported by the evidence, the arguments of defendants that the plan was designed primarily to protect incumbents, that it resulted from bipartisan input and negotiations, that certain districts were packed with Democrats in order to comply with the Voting Rights Act, and that Ohio’s political geography naturally gave to Republicans an advantage this great. Since the burdens imposed on plaintiffs were substantial and were not outweighed by any of the asserted justifications, the court struck down the plan as a whole.
The court concluded that, if the state violates the First or Fourteenth Amendment in drawing congressional districts, it exceeds its authority under the Elections Clause of Article I. Since the state did so in this case, the court again struck down the entire plan.
Based on the representation of defendants that a new plan needed to be adopted by September 20, 2019, in order to be in place for the 2020 election, the court gave the Ohio legislature until June 14, 2019, to draw a remedial plan, but also set a schedule for the court to appoint a special master to draw a plan if the legislature failed or the court were to find the remedial plan invalid.
On May 10, 2019, the Speaker of the Ohio House, the Ohio Secretary of State, and others, No. 18A1165, and the Ohio congressional delegation, and others, No. 18A1166, applied to the U.S. Supreme Court for a stay of the judgment of the district court pending a direct appeal. On October 7, 2019, the Supreme Court vacated the judgment and remanded the cases to the district court for further consideration in light of Rucho v. Common Cause, 588 U.S. ___ (2019). Nos. 19-70, 19-110 (589 U.S. ___).
No major cases.
No major cases.
League of Women Voters of Pa. v. Pennsylvania, No. 261 M.D. 2017 (Pa. Commw. Ct. Dec. 29, 2017), No. J-1-2018 (Pa. Feb. 7, 2019), cert. denied, Turzai v. Brandt, No. 17-1700 (U.S. Oct. 29, 2018)
On June 15, 2017, the League of Women Voters of Pennsylvania and a group of Democratic Pennsylvania voters challenged the state’s 2011 congressional map in state court as an unconstitutional partisan gerrymander under the state constitution. The petitioners sought a declaration that the plan discriminates against Democratic voters in violation of the Pennsylvania Constitution’s Free Expression and Association Clauses (art. I, §§ 7, 20), Equal Protection Guarantees (Art I, §§ 1, 26), and Free and Equal Clause (art I, §5). In addition to asking that the state be blocked from using the map for future elections, the petitioners asked that the Pennsylvania General Assembly be enjoined from considering political data, including party membership, registration, affiliation, and political activities in drawing future maps if that would penalize or burden a group or individual voters based on their political beliefs. (Petition for Review) No. 261 M.D. 2017 (Pa. Commw. Ct.)
Legislative leaders asked the court to stay all proceedings pending the U.S. Supreme Court’s ruling in Gill v. Whitford. The petitioners and several respondents filed an opposition to the motion to stay, arguing that postponing proceedings could delay a resolution before the 2018 elections. The Commonwealth Court of Pennsylvania granted the general assembly’s application to stay all proceedings pending the Supreme Court’s decision in Gill v. Whitford, except for briefing on claims of privilege. (Order, Oct. 16, 2017).
On Nov. 9, 2017, the Pennsylvania Supreme Court granted the petitioners’ request for extraordinary relief. The high court ordered that the case be assigned to a judge of the Commonwealth Court with the directive that the assigned judge hold trial in the case and file findings of fact and conclusions of law by Dec. 31, 2017. League of Women Voters of Pa. v. Pennsylvania, No. 159 MM 2017 (Order) (Pa.).
On November 14, 2017, the Senate president pro tempore filed a notice in federal district court removing the case from state court. League of Women Voters of Pa. v. Pennsylvania, No. 2:17-cv-5137 (Doc. 1, E.D. Pa.). After further discussion between the president pro tempore and the speaker of the House, on request of the president pro tempore, the federal court remanded the case to the Pennsylvania Supreme Court. (Order, Doc. 15) (E.D. Pa. Nov. 16, 2017).
On Nov. 22, 2017, the Commonwealth Court recognized an absolute privilege under the Speech or Debate Clause of the Pennsylvania Constitution, art. 2, § 15, against inquiry into anything said or done by legislators or legislative staff within the sphere of legitimate legislative activity. The state court recognized that federal courts are not compelled to honor state constitutional protections afforded to state legislators, but instead enforce a qualified privilege under federal common law. As a state court, it ruled against any compelled testimony or documentary disclosure regarding that activity, including the intentions, motivations, and activities of state legislators and their staff with respect to the consideration and passage of the 2011 congressional redistricting plan. It quashed subpoenas directed to current and former employees, aides, consultants, experts, and agents of the legislator defendants. It let stand subpoenas directed to third parties outside the legislature, but struck paragraphs requiring the production of communications between the third parties and legislators or legislative staff relating to the 2011 plan. (Mem. & Order).
After a non-jury trial held Dec. 11-15, 2017, the Commonwealth Court concluded that, while petitioners had proved that the 2011 plan favored Republican Party candidates in certain districts, and that it was possible to draw a neutral or nonpartisan plan not as favorable to Republican candidates, petitioners had not articulated a judicially manageable standard by which the court could discern whether the 2011 plan crossed the line between permissible partisan considerations and unconstitutional partisan gerrymandering under the Pennsylvania Constitution. (Recommended Findings of Fact and Conclusions of Law at 126-27) (Pa. Commonw. Ct., Dec. 29, 2017). Specifically, the court noted five questions the petitioners had not answered:
(l) what is a constitutionally permissible efficiency gap; (2) how many districts must be competitive in order for a plan to pass constitutional muster (realizing that a competitive district would result in a skewed efficiency gap); (3) how is a "competitive" district defined; (4) how is a "fair" district defined; and (5) must a plan guarantee a minimum number of congressional seats in favor of one party or another to be constitutional.
Id. At 127.
After a Jan. 17, 2018, hearing on the Commonwealth Court’s recommendations, the Pennsylvania Supreme Court found that “the Congressional Redistricting Act of 2011 clearly, plainly and palpably violates the Constitution of the Commonwealth of Pennsylvania” and enjoined its use in future elections, commencing with the state primary election May 15, 2018. The court permitted the special election for Congressional District 18, scheduled for March 18, 2018, to proceed under the 2011 plan. The court gave the general assembly and the governor until Feb. 15, 2018, to submit to the court a remedial plan. If they failed to do so, the court would adopt its own plan by Feb. 19, 2018. It required that “any congressional districting plan shall consist of: congressional districts composed of compact and contiguous territory; as nearly equal in population as practicable; and which do not divide any county, city, incorporated town, borough, township, or ward, except where necessary to ensure equality of population.” League of Women Voters of Pa. v. Pennsylvania, No. 159 MM 2017 (Order, Jan. 22, 2018) (Pa.).
On Jan. 26, 2018, the Pennsylvania Supreme Court appointed Professor Nathaniel Persily as an advisor to assist the court in adopting, if necessary, a remedial congressional redistricting plan, and gave the parties and intervenors until Jan. 31, 2018, to submit in electronic format any plan they wished the court to consider, along with reports of the plan’s compactness and splits of counties, municipalities, and precincts. (Order.)
Also on Jan. 26, the legislative defendants filed an emergency application for stay at the U.S. Supreme Court and requested the Court to rule on it by Jan. 31. No. 17A795 (U.S. Jan. 26, 2018). Justice Samuel Alito denied the request for a stay without referring it to the whole court. No. 17A795 (Feb. 5, 2018).
On Feb. 7, 2018, the Pennsylvania Supreme Court issued an opinion explaining its January 22 order. It held that the plan violated the Free and Equal Elections Clause of the Pennsylvania Constitution, art. I, § 5: “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.” The Court did not address whether it violated the freedom of expression and association provisions of art. I, §§ 7 and 20, or the equal protection provisions of art. I, §§ 1 and 26. (Opinion at 96 n.63.)
The Court observed that the clause predated the U.S. Constitution, which has no analogous provision, id. at 98, but has been included in the constitutions of 12 other states. Id. at 108 n.69. It said the clause “mandates that all voters have an equal opportunity to translate their votes into representation.” Id. at 100.
[P]artisan gerrymandering dilutes the votes of those who in prior elections voted for the party not in power to give the party in power a lasting electoral advantage. By placing voters preferring one party’s candidates in districts where their votes are wasted on candidates likely to lose (cracking), or by placing such voters in districts where their votes are cast for candidates destined to win (packing), the non-favored party’s votes are diluted. It is axiomatic that a diluted vote is not an equal vote, as all voters do not have an equal opportunity to translate their votes into representation . . . . [A]doption of a broad interpretation guards against the risk of unfairly rendering votes nugatory, artificially entrenching representative power, and discouraging voters from participating in the electoral process because they have come to believe that the power of their individual vote has been diminished to the point that it “does not count.”
Id. at 117-18.
The Court reviewed the historical development of Pennsylvania’s constitutional limits on the drawing of legislative districts, such as requirements that they be compact, contiguous, and maintain the boundaries of political subdivisions, and adopted them “as appropriate in determining whether a congressional redistricting plan violates the Free and Equal Elections Clause . . . .” Id. at 122-23. The Court held that when drawing congressional districts, if these neutral criteria have been subordinated to gerrymandering for unfair partisan political advantage, whether intentional or not, the plan violates the Free and Equal Elections Clause. Id. at 123.
The Court reviewed the expert testimony of Dr. Jowei Chen, who drew two sets of computer-simulated congressional plans, 500 that employed the traditional districting criteria of population equality, compactness, contiguity, and preserving political subdivisions, and 500 that also attempted to protect incumbents. He found that all his simulated plans were more compact and split fewer political subdivisions than the 2011 plan and that “the 2011 Plan did not primarily consider, much less endeavor to satisfy, the traditional redistricting criteria.” Id. at 125-26. Dr. Chen’s simulated plans created a range of up to 10 safe Republican seats, whereas the 2011 plan created 13 safe Republican seats, showing that it worked to the unfair partisan advantage of Republican candidates and diluted petitioners’ power to elect congressional representatives of their choice. Id. at 128. Testimony of two additional experts supported Dr. Chen’s conclusion that the 2011 plan concentrated the power of historically-Republican voters and diluted the voting power of petitioners. Id. at 129-30.
The Pennsylvania General Assembly failed to submit a congressional redistricting plan to the governor by the Court’s deadline of Feb. 9. Various parties and amici submitted at least 10 proposed remedial maps by the Court’s deadline of Feb. 15. The Court released its adopted remedial plan Feb. 19, 2018. (Opinion and Order) (per curiam).
On Feb. 27, 2018, the legislative defendants filed an Emergency Application for Stay with Justice Samuel Alito. Turzai v. League of Women Voters of PA., No. 17A909. The stay was denied. (Order, March 19, 2018).
Corman v. Torres, No. 1:18-cv-443 (M.D. Pa. Mar. 19, 2018), appeal dismissed, Corman v. Secretary Commonw. of Pa., No. 18-1816 (3rd Cir. Sept. 25, 2018)
Eight incumbent Pennsylvania congressmen and two members of the Pennsylvania Senate challenged the Court’s new map in federal district court as a violation of the Elections Clause of the U.S. Constitution, art. I, § 4, cl. 1, alleging that the Court had neither authority to strike down the 2011 plan nor authority to draw a new map in its place. (Verified Complaint, Feb. 22, 2018). A three-judge court dismissed the complaint for lack of standing. The two members of the Pennsylvania Senate were not a sufficient number to enact a law or override a governor’s veto, so they were not entitled to defend the rights of the General Assembly. The General Assembly was defending its own rights in the U.S. Supreme Court. The eight members of Congress had no legally cognizable interest in the composition of their congressional district. Their complaint that the state court had adopted improper criteria and provided too little time for the General Assembly to draw a plan was not why their districts boundaries had changed, so it was not the cause of their injury. (Mem. Op. March 19, 2018).
Agre v. Wolf, No. 2:17-cv-4392 (E.D. Pa. Nov. 16, 2017), appeal dismissed as moot, No. 17-1339 (U.S. May 29, 2018) (mem.)
Four Pennsylvania citizens challenged the state’s 2011 congressional map in federal court as a partisan gerrymander. The plaintiffs asserted that the 2011 plan unlawfully placed citizens into congressional districts based upon their likely voting preferences. The plaintiffs also claimed that the Pennsylvania General Assembly’s plan sought to influence the political identity of Pennsylvania’s congressional representatives. Those actions, the plaintiffs contended, violate the Elections Clause of the U.S. Constitution, as well as the First and 14th amendments. The plaintiffs asked the court to redraw the districts before the 2018 congressional elections. (Complaint, Doc. 1, Oct. 2, 2017).
The court dismissed the partisan gerrymandering claim under the Equal Protection Clause of the 14th Amendment for failure to articulate a standard for reviewing the claim. (Order on Motion to Dismiss, Doc. 74, Nov. 7, 2017; Statement of Reasons for Dismissal, Doc. 83 at 2-3, Nov. 16, 2017).
The speaker of the Pennsylvania House moved for a protective order that he not be deposed at all or, if deposed, that he not be questioned about his deliberative process or subjective intent regarding the 2011 congressional map. His motion extended to any information relating to fact finding, information gathering, and investigative activities in consideration of redistricting legislation. The three-judge federal district court denied the motion, saying there was no legislative or deliberative process privilege as to documents and communications with third parties nor for questions about his own intent or motive, nor for communications with the public or outside of the members and staff of the legislature. (Order, Doc. 114 Nov. 22, 2017).
In response to a later assertion of legislative or deliberative process privilege by the speaker, the court ordered that all documents for which he asserted the privilege be produced before or during his deposition, citing the five-factor balancing test used in Benisek v. Lamone, 241 F. Supp.3d 566, 575-76 (D. Md. 2017). (Order, Doc. 142, Nov. 28, 2017). The federal court further noted that, although the Pennsylvania state court in League of Women Voters v. Pennsylvania, No. 261 M.D. 2017, (Mem. & Order, Nov. 22, 2017), enforced an absolute privilege against discovery into legislative activity, the federal courts are guided by federal law in determining privilege issues. (Doc. 142 at 3).
The court dismissed the partisan gerrymandering claim under the First Amendment for failure to articulate a standard for reviewing the claim. (Order Re: Motion to Dismiss Amended Complaint, Doc. 160, Nov. 30, 2011).
The court dismissed the remaining claims on January 10, 2018. (Final Judgment). On January 18, the plaintiffs filed a notice of appeal to the Supreme Court.
No major cases.
No major cases.
No major congressional cases.
Texas redistricting plans have been in the courts since the beginning of the 2010 decade. The state has had challenges to state legislative, congressional, and court-drawn interim plans. One case of national significance, Evenwel v. Abbott, looked at whether using total population rather than voting-age population, is acceptable. Most states use total population, and the U.S. Supreme Court ruled it is an acceptable practice.
Most of the claims against Texas plans following the 2010 census stemmed from the massive increase in its Hispanic, African-American, and other minority populations. The total population of Texas grew enough to entitle it to draw four more congressional districts.
A three-judge federal district court in San Antonio made a preliminary determination that certain districts in the state Senate, state House, and congressional plans enacted by the Legislature in 2011 were in violation of the Equal Protection Clause of the U.S. Constitution or § 2 of the Voting Rights Act, or both, and drew interim plans to be used for the 2012 elections. Davis v. Perry, No. 5:11-cv-788, Doc. 147 (W.D. Tex. Mar. 19, 2012) (Senate); Perez v. Perry, No. 5:11-cv-360, Doc. 690 (W.D. Tex. Mar. 19, 2012) (House), Doc. 691 (W.D. Tex. Mar. 19, 2012) (Congress). The Texas Legislature enacted those plans, with minor changes to the state House plan, into law in 2013. Plaintiffs agreed that the enacted 2013 plan for the Senate remedied their complaint, and the complaint was dismissed. Davis v. Perry, Doc. 190 (W.D. Tex. Sept. 4, 2013).
While the court continued its consideration of the challenges to the 2011 state House and congressional plans on the merits, it ordered the House and congressional plans enacted in 2013 to be used for elections in 2014, Doc. 886 (W.D. Tex. Sept. 6, 2013), and 2016. Doc. 1324 (W.D. Tex. Nov. 6, 2015).
After a trial on the merits, the court held that § 2 of the Voting Rights Act or the Equal Protection Clause of the 14th Amendment, or both, were violated by four districts in the 2011 congressional plan, Doc. 1339 (W.D. Tex. Mar. 10, 2017), as amended by Doc. 1390 (W.D. Tex. May 2, 2017), and 19 districts in the 2011 House plan, Perez v. Abbott, No. 5:11-cv-360, Doc. 1365 (Apr. 20, 2017).
A bench trial was held July 10-15, 2017, on whether the 2013 enacted House and congressional plans had remedied the violations found in the 2011 plans.
On Aug. 15, 2017, on the congressional plan, the court concluded that:
the racially discriminatory intent and effects that it previously found in the 2011 plans carry over into the 2013 plans where those district lines remain unchanged. The discriminatory taint was not removed by the Legislature’s enactment of the Court’s interim plans, because the Legislature engaged in no deliberative process to remove any such taint, and in fact intended any such taint to be maintained but be safe from remedy. The Legislature in 2013 intentionally furthered and continued the existing discrimination in the plans.
Doc. 1535 at 104 (W.D. Tex. Aug. 15, 2017). It concluded that Congressional District 27, which extended from southwest of Austin to Corpus Christi, and Congressional District 35, which extended from Austin to San Antonio, violated § 2 of the Voting Rights Act and the Fourteenth Amendment. Id. at 98-104.
On Aug. 24, 2017, on the House plan, the court repeated its conclusion that the 2013 legislature purposefully maintained the intentional discrimination contained in the 2011 House plan where the district lines remained unchanged or substantially unchanged. Doc. 1540 at 4 (W.D. Tex. Aug. 24, 2017). Specifically, the court ordered that the intentional discrimination previously found in the 2011 House plan be remedied as follows: in Bell County, affecting the configuration of HD54 and HD55, id. at 16-19; in Dallas County, affecting the configuration of HD103, HD104, and HD105, id. at 20-24; in Nueces County (Corpus Christi), affecting the configuration of HD32 and HD34, id. at 24-57; and in Tarrant County (Fort Worth), affecting HD90 and HD93, id. at 64-67.
On Sept. 12, 2017, the U.S. Supreme Court stayed further proceedings regarding the congressional plan, No. 17A225, and the House plan, No. 17A245, pending the timely filing and disposition of an appeal to the Supreme Court.
On June 25, 2018, the Supreme Court reversed all the holdings of the district court with regard to the congressional plan and House plan, except its holding that HD90 in Tarrant County (Fort Worth) was a racial gerrymander. It remanded to the district court the question of what remedy was appropriate for HD 90. , No. 17-586.
Legislative and Congressional
Evenwel v. Abbott, No. 14-940, 578 U.S. ____ (Apr. 4, 2016)
Voters in Texas sought an injunction barring the use of the 2011 state legislative maps. They argued that Texas should adopt a map measured by voter population numbers, not total population numbers. A three-judge federal district court in Texas dismissed the case for failure to state a claim. It was appealed to the U.S. Supreme Court.
The U.S. Supreme Court rejected the plaintiffs’ claim that the Texas plan based upon total population was in violation of the one-person, one-vote principle of the Equal Protection Clause. The plaintiffs alleged that because the maximum population deviation in Texas was 40 percent when taking into consideration the size of districts based upon voting age population, their vote was diluted. The Supreme Court held that centuries of practice and precedent establishes the principle of representation that serves all residents, not just ones that are eligible to vote. Non-voters have an important stake in many policy decisions and debates, therefore are accorded their fair representation.
The court took previous rulings and interpretations of the Constitution as applied to congressional districts to its logical conclusion. If the 14th Amendment calls for the apportionment of congressional districts based upon total population, then why should state legislatures be prohibited from doing the same? The court interpreted language from § 2 of the 14th Amendment, “Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each State” as applying to state legislative districts as well.
The court did not determine that a state must use total population numbers, and instead said that a state may use total population numbers.
Perez v. Abbott, No. 5:11-cv-360 (W.D. Tex.) (formerly Perez v. Perry)
Voters in Texas challenged the 2011 congressional and state House plans in multiple suits that alleged the Texas Legislature violated the Equal Protection Clause of the U.S. Constitution and § 2 of the Voting Rights Act. Plaintiffs alleged that the legislature intentionally diluted Latino and African-American voting strength. The suits were consolidated for proceedings in front of a three-judge court of the Federal District Court for the Western District of Texas sitting in San Antonio ("trial court"). Doc. 23 (July 6, 2011); Doc. 63 (July 21, 2011); Doc. 72 (July 26, 2011); Doc 76 (July 27, 2011). A separate challenge to the state Senate plan (Davis v. Perry, No. 5:11-cv-788) was heard by the same court but not consolidated with the congressional and state House cases.
As depositions were about to begin, defendants asserted legislative privilege under federal common law, Doc. 62 (July 21, 2011), and moved for a protective order “that no discovery shall be taken on the issue of individual legislators’ motives or purposes if the discovery is directed to witnesses who worked for, with, or as Members of the 82nd Texas Legislature, and if it is based on information or communications other than those contained in the journals and publicly-available reports and acts of the 82nd Legislature.” Doc. 62-1 (July 21, 2011). The motion was denied as premature, since no witness had appeared and asserted privilege in the context of a specific question. Rather, the trial court required deponents to answer the question subject to privilege. Those portions of the transcript would be sealed and submitted to the court for in camera review and not be disclosed or used unless the court found that the privilege did not apply, had been waived, or should not be enforced. Doc. 102 (Aug. 1, 2011).
Twenty-three of Texas’ members of Congress then asserted legislative privilege under the Speech and Debate Clause of the U.S. Constitution and moved to prevent disclosure of written communications between them, their staff, and counsel and Texas legislators, staff, and counsel relating to the Texas Legislature’s redistricting. The communications had been submitted to the trial court under seal. The trial court denied the motion and unsealed the documents, holding that they fell outside the congressional members’ sphere of legislative duties, since the members would not deliberate, hold a hearing, or vote on this Texas legislation. Doc. 189 (Aug. 11, 2011).
The trial court held arguments and then decided to withhold judgment pending resolution of the preclearance process in the Federal District Court for the District of Columbia in the case of Texas v. United States, No. 1:11-cv-1303 (D.D.C.). The 2012 primaries in Texas were approaching, so the trial court drew an interim plan for the 2012 elections. It did so because it seemed likely that the state’s newly enacted plans would not be precleared before the upcoming elections. The U.S. Supreme Court granted a stay of the interim plans on Dec. 9, 2011 and set oral arguments for Jan. 9, 2012. Perry v Perez, Order, No. 11-713, 565 U.S. ___) (mem.).
On Jan. 20, 2012, the U.S. Supreme Court remanded the case to the trial court to redraw the interim plans. The Supreme Court held that it was unclear whether the trial court followed the appropriate standards. It said that a court drawing an interim plan must follow the enacted plan, except for districts that violated the Constitution or the Voting Rights Act. The test for a violation of the Constitution or § 2 of the Voting Rights Act is whether the challenge is likely to succeed on the merits on final judgment. The test for a violation of § 5 is whether the challenge is “not insubstantial.” Op. (per curiam).
The trial court made a preliminary determination that certain districts in the state Senate, state House, and congressional plans enacted by the legislature in 2011 were in violation of the Equal Protection Clause of the U.S. Constitution or § 2 of the Voting Rights Act, or both, and drew new interim plans to be used for the 2012 elections. Davis v. Perry, No. 5:11-cv-788, Doc. 147 (Mar. 19, 2012) (Senate); Perez v. Perry, No. 5:11-cv-360, Doc. 690 (Mar. 19, 2012) (House), Doc. 691 (Mar. 19, 2012) (Congress). The Texas Legislature enacted those plans, with minor changes to the state House plan, into law in 2013. Plaintiffs agreed that the enacted 2013 plan for the Senate remedied their complaint, and the complaint was dismissed. Davis v. Perry, Doc. 190 (Sept. 4, 2013). While the trial court continued its consideration of the challenges to the 2011 House and congressional plans on the merits, it ordered the House and congressional plans enacted in 2013 to be used for elections in 2014, Doc. 886 (Sept. 6, 2013), and 2016, Doc. 1324 (Nov. 6, 2015).
In preparation for trials on the merits of the 2011 congressional and House plans scheduled for July and August of 2014, defendants the state of Texas, the governor, and the secretary of state moved to modify the trial court’s order of Aug. 1, 2011, requiring that a witness who asserted legislative privilege answer the question or provide documents under seal for the court’s in camera inspection. They asked that the witness be permitted to refrain from answering the question, pending a motion to compel an answer. The court noted that none of the movants was a state legislator entitled to assert the privilege and denied the motion as premature, but provided guidance for proceeding with depositions. It noted that, even when the privilege is properly asserted:
a court must balance the interests of the party seeking the evidence against the interests of the individual claiming the privilege. See ACORN I, 2007 WL 2815810, at *2 (citing Rodriguez, 280 F. Supp. 2d at 96). The court in Rodriguez identified five factors to aid in this determination, including: (i) the relevance of the evidence sought to be protected; (ii) the availability of other evidence; (iii) the “seriousness” of the litigation and the issues involved; (iv) the role of the government in the litigation; and (v) the possibility of future timidity by government employees who will be forced to recognize that their secrets are violable. 280 F. Supp. 2d at 101; see also Comm. for a Fair & Balanced Map, 2011 WL 4837508, at *7.
In sum, counsel for the state of Texas may not invoke the legislative privilege; each legislator, legislative aide, or staff member must assert or waive the privilege individually. Any individual asserting the privilege must, however, provide enough facts so that a court, if necessary, can determine whether the information sought falls within the scope of the privilege. To the extent that any individual asserting the privilege has had communications or correspondence with any outside party or entity, such communications or correspondence waives the privilege as to the content of those communications.
Any legislator, legislative aide, or staff member that asserts the privilege will be afforded the opportunity to comply with the protocol established by the Aug. 1, 2011 order. Under this scenario those portions of the deposition would be sealed and submitted for in camera review. Alternatively, the deponent may choose not to answer specific questions, citing the privilege. In that event, Plaintiffs may thereafter file a motion to compel and the Court will thereafter determine whether the privilege has been waived or is outweighed by a compelling, competing interest.
Doc. 952 at 4-5 (Jan. 8, 2014).
Even though the 2011 congressional and state House plans had been expressly repealed when the legislature adopted the court drawn plans in 2013, the trial court proceeded to take testimony on challenges to the 2011 plans in separate hearing in July 2014 (Congress) and August 2014 (state House). Over two and one-half years after those hearings, the trial court found by a 2-1 majority that the challenges to the 2011 congressional and state House plans were not moot because features of the plans carried over to the 2013 plans and because the plaintiffs were pursuing a remedy under § 3(c) of the Voting Rights Act that would subject Texas to preclearance under § 5. Doc. 1339 (Mar. 10, 2017, as amended by Doc. 1390 (May 2, 2017)
In examining the 2011 congressional plan, the trial court majority found several districts that violated either § 2 of the Voting Rights Act or the Equal Protection Clause of the Fourteenth Amendment, or both. In one district reaching from San Antonio to the South and West (CD 23), the trial court found that the state had intentionally manipulated electoral geography to give the appearance of an Hispanic opportunity district while actually reducing the number of Hispanics who typically would turn out to vote at the election from the existing version of the district, so as to dilute the vote of Hispanics. Doc. 1390 at 28-9. The same district also was primarily drawn on the basis of race without a compelling state interest in violation of the Equal Protection Clause of the 14th Amendment, as described by the Supreme Court in Shaw v. Reno, 509 U.S. 360 (1993). Id. at 29-32. A newly created district in the Austin-San Antonio corridor (CD 35) was also drawn primarily on the basis of race without a compelling state interest, in violation of Shaw. Id. at 32-46. Residents of Hispanic-majority Nueces County were removed from a Hispanic-opportunity district and placed in an Anglo-majority district (CD 27) in a manner that violated the § 2 protections against intentional vote dilution of those residents. Id. at 46-57. Finally, in the Dallas-Fort Worth area, one district specifically was drawn on the basis of race without a compelling state interest in violation of Shaw (CD 26), while several of the districts in the area were generally drawn in a manner that packed and cracked minority voters in a manner that demonstrated intentional vote dilution of those voters in violation of both the Equal Protection Clause and § 2. Id. at 101-08; 125-46.
In a separate opinion released a month later, the same majority found similar deficiencies in several state House districts from the 2011 legislative plan. Doc. 1365 (Apr. 20, 2017). Intentional vote dilution in violation of § 2 and the 14th Amendment was found in a number of districts. House Districts in El Paso and Bexar (San Antonio) Counties were drawn with the same manipulation of registration and turnout data that produced apparent Hispanic-opportunity districts with reduced Hispanic electoral success because of lower turnout as was found in the congressional map. Id. at 23-32. The elimination of an Hispanic-opportunity district in Nueces County (Corpus Christi) to comply with the state constitution’s rule on apportionment of state House districts and the configuration of the remaining districts in the county were also found to be intentional vote dilution of Hispanic voters. Id. at 32-43. Intentional vote dilution violations were also found in district configurations in Hidalgo County, western Dallas County, Tarrant County (Ft. Worth), Bell County (Killeen), and the failure to draw an additional Hispanic-opportunity district in Harris County (Houston). Id. at 43-46; 50-57; 62-71; 73-78. Finally, the court found that the 2011 plan as a whole intentionally diluted Hispanic voting strength. Id. at 83-85. The court also determined that the drawing of the Bexar County district found to dilute minority voting strength also was drawn primarily on the basis of race in violation of Shaw. Id at 87-89. And the districts found to dilute minority voting strength in Nueces, Hidalgo, and Bell Counties also were determined to violate the one- person, one-vote standard of the Equal Protection Clause of the Fourteenth Amendment, as laid out in Larios v. Cox., 300 F. Supp. 2d 1320 (N.D. Ga), summarily aff'd 542 U.S. 947 (2004). Id. at 135-139; 147-149.
Circuit Judge Jerry Smith dissented to both opinions. Smith initially would have found that any challenge to the 2011 congressional or state House plans was moot because of the Legislature's express repeal of those plans. Doc. 1390 at 169-79. If on review the Supreme Court decided the challenges were not moot, Smith still would dissent on the merits to many portions of the opinions. Smith was unpersuaded by the majority’s holding of intentional vote dilution and Shaw type violations for the congressional districts located in south and west Texas and that the district configurations were more consistent with partisan motives rather than racial ones. He agreed with the majority’s findings for racial vote dilution and Shaw violations in the congressional districts in the Dallas-Fort Worth area. Id at 179-89. Smith also believed that party rather than race drove all considerations for the intentional vote dilution and Shaw violations that the majority found in the state House map. Doc. 1365 at 165-70. Smith did agree with the majority with respect to the one-person, one-vote Larios type of violations in the 2011 House districts. Id. at 155, n.1.
Following another evidentiary hearing in July 2017, the trial court issued rulings on the validity of the 2013 legislatively adopted congressional and state House redistricting plans. As a threshold matter, the trial court found that that the legislature’s adoption in 2013 of the 2012 interim court-ordered plans did not insulate those plans from challenge. Instead, the discriminatory intent and effects found previously by the court in the 2011 plans carried forward to the 2013 plan for districts whose lines remained unchanged. The discriminatory taint was not removed by the legislature’s enactment of the court’s interim plans because the legislature engaged in no deliberative process to remove the taint and by adopting the court-ordered interim plans the legislature intended to maintain the taint but make it safe from any remedy. Doc. 1535 at 39 (Aug. 15, 2017).
In examining the 2013 congressional plan, the trial court found that the plaintiffs had failed to establish minority voter cohesion necessary to require the creation of additional majority-minority districts under § 2 of the Voting Rights Act in the Dallas Fort-Worth and Houston areas. Id. at 74-75; 78-84. Other findings of intentional discrimination or vote dilution in the 2011 plan were cured by the creation of the new majority-minority District 33 in the Dallas Fort Worth area and the reconfiguration of the district reaching from San Antonio to the south and west (CD 23) in the 2012 court interim plan that was adopted by the legislature in 2013. Id. at 75-78; 84-98. But since the configuration of the Austin-San Antonio corridor district (CD 35) and the Nueces County district (CD 27) remained unchanged between the 2011 and 2013 plans, the court found that the previously held violations against these districts remained and would have to be remedied. Id. at 98-107.
In its review of the state House plan, the trial court again found a lack of minority vote cohesion that required the creation of additional majority-minority districts in Harris, Fort Bend, and Dallas Counties. Doc. 1540 at 5-16; 20-24 (Aug. 24, 2017). The court’s 2012 remedial plan had cured other deficiencies in Harris and Bexar Counties. Id. at 5, 9; 63-64. The trial court found that a remedy was required for intentional vote dilution from the 2011 plan that remained in the 2013 plan for districts in Bell, western Dallas, Nueces, and Tarrant Counties. Id. at 16-19; 24; 41-57; 80. Additionally, the trial court found changes made to a district in Tarrant County in the 2013 legislative plan constituted a Shaw violation under the Equal Protection Clause that required a remedy. Id. at 67-78.
While the trial court’s opinions on the 2013 congressional and state House plans appear to be unanimous, footnotes in each opinion indicate that Smith found that the court’s rulings on the 2011 plans had become the “law of the case” for the 2013 challenges, and thus binding on him. Doc. 1535 at 11 n.13; Doc. 1540 at 4 n.5. Thus, it may be that Smith disagreed with virtually all the findings used to invalidate districts in the 2013 legislative plans.
The trial court indicated that it intended to hold a remedy phase for violations found in the 2013 plans on Sept. 5 and 6, 2017. Doc. 1535 at 106; Doc 1540 at 82. However, following motions by the state after each opinion was released, the U. S. Supreme Court stayed further proceedings by the trial court in the case for both the 2013 congressional and state House redistricting plans until the Supreme Court could hear the appeals. No. 17A225, 582 U.S. ___, (Sept. 12, 2017) (mem.) (congress); No. 17A245, 582 U.S. ___, (Sept. 12, 2017) (mem.) (state House).
On October 17, 2017, the state filed its jurisdictional statement on the trial court’s ruling on the congressional plan and the appeal was docketed by the Supreme Court as Abbott v. Perez, No. 17-586. It's jurisdictional statement on the state House plan was filed October 27, 2017. Abbott v. Perez, No. 17-626.
On June 25, 2018, the Supreme Court reversed all the holdings of the district court with regard to the congressional plan and House plan, except its holding that HD 90 in Tarrant County (Fort Worth) was a racial gerrymander. It remanded to the district court the question of what remedy would be appropriate for HD 90. Opinion, No. 17-586. The Court held that it had jurisdiction to review the orders at issue because, even though they were not called “injunctions,” they had the practical effect of injunctions because the circumstances indicated that the lower court intended to have new plans in place for the 2018 elections. Slip op. at 11-21. The Court held that the 2013 Texas Legislature should have been given the presumption of good faith, notwithstanding the discriminatory intent of the 2011 Texas Legislature, and the district court had improperly required the 2013 Legislature to cure the “taint” of the 2011 Legislature, rather than putting the burden on plaintiffs to prove the discriminatory intent of the 2013 Legislature. Slip op. at 21-25. The Court held that the district court had improperly applied the “effects” test of 2 pf the Voting Rights Act to invalidate CD 27 and HDs 32 and 34 in Nueces County (Corpus Christi), because plaintiffs had not shown that additional Latino opportunity districts could be created in that part of the state. Slip op. at 32-38. Texas conceded that HD 90 had been drawn on the basis of race to create a Latino opportunity district, and the Court held it had not offered sufficient evidence to prove that creation of a Latino opportunity district was necessary to avoid a violation of 2. Slip op. at 38-41.
On June 25, 2018, the Supreme Court reversed all the holdings of the district court with regard to the congressional plan and House plan, except its holding that HD90 in Tarrant County (Fort Worth) was a racial gerrymander. It remanded to the district court the question of what remedy was appropriate for HD 90. , No. 17-586. The Court held that it had jurisdiction to review the orders at issue because, even though they were not called “injunctions,” they had the practical effect of injunctions because the circumstances indicated that the court intended to have new plans in place for the 2018 elections. Slip op. at 11-21. The Court held that the 2013 Texas Legislature should have been given the presumption of good faith, notwithstanding the discriminatory intent of the 2011 Texas Legislature, and that the district court had improperly required the 2013 Legislature to cure the “taint” of the 2011 Legislature, rather than putting the burden on plaintiffs to prove the discriminatory intent of the 2013 Legislature. Slip op. at 21-25. The Court held that the district court had improperly applied the “effects” test of § 2 of the Voting Rights Act to invalidate CD27 and HDs 32 and 34 in Nueces County (Corpus Christi), because plaintiffs had not shown that additional Latino opportunity districts could be created in that part of the state. Slip op. at 32-38. Texas conceded that HD90 had been drawn on the basis of race to create a Latino opportunity district, and the Court held it had not offered sufficient evidence to prove that creation of a Latino opportunity district was necessary of avoid a violation of § 2. Slip op. at 38-41.
No major cases.
No major cases.
Personhuballah v. Alcorn (aka Page v. Va. State Bd. of Elections, Cantor v. Personhuballah, and Wittman v. Personhuballah), No. 3:13-cv-678, 58 F. Supp. 3d 533 (E.D. Va. Oct. 7, 2014) (CD 3 a racial gerrymander), vacated & remanded No. 14-518, 575 U.S. ____, 135 Sup. Ct. 1699 (Mar. 30, 2015), (E.D. Va. June 5, 2015) (CD 3 a racial gerrymander), appeal dismissed sub nom. Wittman v. Personhuballah, No. 14-1504, 578 U.S. ____ (May 23, 2016) (appellant members of Congress lacked of standing), (E.D. Va. Jan. 7, 2016) (special master’s plan adopted for 2016)
Plaintiffs alleged that their rights under the Equal Protection Clause of the U.S. Constitution were violated by the racial gerrymander of Virginia Congressional District 3 during the 2011-12 redistricting cycle.
Plaintiffs subpoenaed, from a consultant retained as an independent contractor by the House Republican Campaign Committee, documents related to the 2012 Virginia redistricting process, including draft maps and communications about the maps. The consultant moved to quash the subpoena or for a protective order, asserting legislative privilege as to some of the documents. The federal district court held that, since the consultant was not an employee of the House, a committee, or an individual member, he was not “so critical to the performance of the legislature that he should be treated as a legislative alter ego and extended the benefit of legislative privilege.” Page v. Va. State Bd. of Elections, Mem. Op. at 13. (E.D. Va. May 8, 2014). Even if he were entitled to claim the privilege, the court used a five-factor analysis to determine that “he would be entitled to withhold only those documents concerning the actual deliberations of the Legislature once the redistricting legislation had been formally introduced.” Id. at 17-23.
On the merits, the three-judge court struck down Congressional District 3 as a racial gerrymander because the use of race in drawing district lines was not narrowly tailored to serve a compelling governmental interest. Page, 58 F. Supp. 3d 533 (E.D. Va. Oct. 7, 2014).
The U.S. Supreme Court vacated and remanded the decision for further consideration in light of Alabama Legislative Black Caucus v. Alabama. Cantor v. Personhuballah, No. 14-518, 575 U.S. ____, 135 Sup. Ct. 1699 (Mar. 30, 2015).
The federal district court again found Congressional District 3 was a racial gerrymander. Page, Mem. Op. (E.D. Va. June 5, 2015), appeal dismissed sub nom. Wittman v. Personhuballah, No. 14-1504, 578 U.S. ____ (May 23, 2016) (appellant members of Congress lacked of standing). When the Virginia General Assembly failed to enact a remedial plan, the district court ordered Virginia to implement a plan drawn by a special master for elections in 2016. Personhuballah v. Alcorn, Mem. Op. (E.D. Va. Jan. 7, 2016).
No major cases.
Tennant v. Jefferson County, No. 11-1184, 567 U.S. 758 (Sep. 25, 2012)
The Jefferson County Commission and residents of Jefferson County alleged that West Virginia’s 2011 congressional plan violated the “one-person, one-vote” principle of Article I, § 2, of the U.S. Constitution. West Virginia created a redistricting plan that had a maximum population deviation of 0.79 percent (the variance between the smallest and largest districts). The State conceded that it could have made a plan with less deviation, but that other traditional redistricting principles such as not splitting counties, avoiding contests between incumbents, and preserving the cores of prior districts were legitimate state objectives. The district court held that “the State’s asserted objectives did not justify the population variance.” The U.S. Supreme Court held that the legislature did provide a sufficient record connecting the State’s interests and the necessary deviation needed to sustain those interests. The court reversed and remanded the case to the district court.
The federal district court then dismissed the case, without prejudice to refiling in the appropriate state court because the case raised “novel and complex issues of West Virginia law.” Jefferson County v. Tennant, No. 2:11-cv-0989 at 4 (S.D. W. Va. Jan. 25, 2013).
Following the 2010 census, Wisconsin has seen two major challenges to both its state legislative and congressional maps. The first was Baldus v. Brennan, a challenge to both plans under traditional Equal Protection and VRA Section 2 theories. The latest, Whitford v. Gill, was the first case in which a district court struck down a map for partisan gerrymandering in over fifty years.
Baldus v. Brennan, No. 2:11-cv-562 (E.D. Wis. Mar. 22, 2012)
Plaintiffs alleged that the Wisconsin legislative and congressional plans violated the Equal Protection Clause of the 14th Amendment and § 2 of the Voting Rights Act in various ways. Specifically, the plaintiffs alleged the plans were unconstitutional because they violated traditional redistricting principles and failed to protect communities of interest; constituted an impermissible partisan gerrymander; and disenfranchised nearly 300,000 voters who were shifted from even-numbered Senate Districts to odd-numbered Senate Districts (meaning they could not vote for a Senator for an extra 2 years). The plaintiffs further alleged the plan “cracked” the Milwaukee Latino community into two districts, neither of which was a majority-minority district of citizen voting age Latinos, in violation of § 2 of the Voting Rights Act.
Plaintiffs sought to depose a consultant hired by the law firm hired by the Wisconsin Legislature to draw its redistricting plans, as well as a legislative aide to the Senate majority leader, who were commanded to produce the documents used by them to draw the 2011 redistricting maps. The Wisconsin Assembly and Senate, who were not parties to the suit, moved to quash the subpoenas. The motions were denied. Relying on Comm. for a Fair & Balanced Map v. Ill. State Bd. of Elections, No. 1:11-cv-5065, Op. & Order (N.D. Ill. Oct. 12, 2011), the court ruled that immunity for state legislators under federal common law is not absolute (as it would be under state law). Rather, the federal interest in enforcing voting rights statutes must be weighed against the privilege of a state legislator not to produce documents or testify concerning their legitimate legislative activities. The court applied a five-factor test. Since the evidence sought was highly relevant to proving plaintiffs’ claims of discriminatory intent, and any future “chilling effect” on the Legislature would be minimal, the legislative staff and consultants were commanded to produce it. Order (E.D. Wis. Dec. 8, 2011). When the Legislature refused to comply with the court’s order of Dec. 8, and a second order of Dec. 20, 2011, WL 6385645, the court ordered the law firm hired by the Legislature to draw and defend its redistricting plans to pay the attorneys’ fees and costs incurred by plaintiffs in ensuring compliance with the court’s orders. Order, 843 F. Supp.2d 955 (Jan. 3, 2012). When the Legislature asserted attorney-client privilege to avoid producing “a series of email messages discussing the support of certain Hispanic community groups for redistricting legislation and also discussing the floor debates on a pending bill,” the court found that they involved “advice on political strategy, as opposed to legal strategy, and, therefore, [were] not afforded attorney-client privilege protection.” Order (Feb. 16, 2012).
On March 22, 2012, the court upheld the plans as constitutional, but found that Assembly Districts 8 and 9 violated § 2 of the Voting Rights Act by diluting the voting power of Latino voters in Milwaukee. The court held the plan violated federal law because it failed to create a majority-minority district for the Latino community in Milwaukee. The court enjoined the state from using the existing Assembly Districts 8 and 9 and ordered creation of new maps affecting only those districts. The court then gave the Legislature the first opportunity to redraw the districts but noted that the Legislature must act quickly given upcoming elections. Order (Mar 22, 2012). On March 27, 2012, the court issued an order noting the Legislature did not act on Assembly Districts 8 and 9, and setting deadlines for the parties to submit suggested new maps. The court ordered the parties to hold at least one meet-and-confer conference to discuss a joint recommendation for new maps. In the event they failed to agree, the court ordered each party to submit proposed maps and also allowed submission of proposed maps by any nonparty who wished to appear as amicus curiae.
On April 11, 2012, the court adopted a remedial plan for Assembly Districts 8 and 9 drawn by plaintiffs. Order (Apr. 11, 2012). The court noted the parties had not offered a joint recommendation, but instead, each side had submitted proposed new maps. The court explained that the Hispanic citizen voting age population in the maps proposed by the defendants was too low, whereas the plaintiffs’ proposed maps provided an effective majority-minority district for the Latino community in Milwaukee and balanced traditional redistricting criteria. For this reason, the court selected the proposed maps submitted by the plaintiffs and the maps be substituted for Assembly Districts 8 and 9 in the original map.
No major cases.