Redistricting Case Summaries | 2010-Present

10/2/2019
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USA FlagRedistricting 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, those maps are challenged in court.

In the pages that follow, readers can find summaries of major redistricting cases relating to legislative and congressional redistricting plans based on data from the 2010 Census. 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, or that strike down a plan drawn by a legislature or commission.

For a comprehensive look at all cases relating to legislative and congressional redistricting plans from the 2010 redistricting cycle, please see Loyola Law School professor Justin Levitt’s webpage, All About Redistricting. More recent summaries and links to case documents are available from the Brennan Center for Justice’s Redistricting page, maintained by Michael Li, Thomas Wolf, and Annie Lo. NCSL based much of its work for these summaries on cases summarized at All About Redistricting and the Brennan Center.

Information on cases from previous decades can be found at NCSL’s Redistricting Case Summaries.

NCSL thanks Peter Wattson for his invaluable assistance in the creation of these summaries. 

 Alabama

AL flagAlabama was home to arguably the decade’s most significant case, Shelby County v. Holder, which determined that the formula for requiring federal preclearance of election law changes was no longer constitutional. This ruling affects the nation, not just Alabama. Additionally, racial considerations relating to Alabama’s legislative maps have been in the courts throughout the decade.

Shelby County v. Holder, No. 12-96, 570 U.S. 529 (2013)

Shelby County, Alabama was covered by §§ 4(b) and 5 of the Voting Rights Act of 1965 (VRA). § 4(b) of the VRA identifies data that shows the cause and effect of statewide practices in the past that led to discrimination in voting. Using this data, certain states and jurisdictions were defined as “covered” jurisdictions, which meant that any changes in their voting procedures had to be approved, either by the Department of Justice or by the U.S. District Court for the District of Columbia, before they were implemented. When they were enacted in 1965, the coverage formula and “preclearance” requirements were set to expire after five years. Congress extended them several times, most recently in 2006 for 25 more years. 

In 2011, Shelby County sued the U.S. attorney general, challenging the constitutionality of both § 4(b) and § 5. The primary contention was that the coverage formula in § 4(b) had not changed since the VRA was initially enacted in 1965. Plaintiffs claimed that things have drastically changed since then in Shelby County and that the standards based on old data should no longer apply.

At the trial level, a federal district court in Washington, D.C., upheld both § 4(b) and § 5. The D.C Circuit court affirmed the lower court’s holding. Shelby County appealed to the U.S. Supreme Court. The U.S. Supreme Court ruled in favor of Shelby County in a 5-4 holding with Chief Justice John Roberts writing the majority opinion, ruling that § 4 of the Voting Rights Act is unconstitutional.

The court had to balance exceptional conditions surrounding the implementation of the Voting Rights Act with the basic principles of the 10th Amendment and equal sovereignty among the states. The 10th Amendment reserves to the states all powers not specifically granted to the federal government. This includes the power to regulate elections. In addition, there is also a fundamental principle of equal sovereignty among the states, which in essence frowns upon disparate treatment of states.

The court found that the exceptional conditions surrounding the Voting Rights Act are not so exceptional anymore. In Northwest Austin Municipal Utility District v. Holder, 557 U.S. 193 (2009), the court articulated that the current burdens imposed by the VRA must be justified by current needs. In addition, to uphold the fundamental principle of equal sovereignty among the states, the disparate treatment under the VRA must be sufficiently related to the problem that it targets.

The coverage formula in the VRA is based upon literacy tests and voter registration and turnout rates in the presidential elections of 1964, 1968 and 1972. Ballot devices and tests have been banned nationwide. Voter registration rates have increased in minority communities and minority candidates today hold office in unprecedented numbers. Because of these developments and data, the coverage formula is no longer sufficiently related to the problem it targets and the current burdens of the VRA are not justified by current means.

Due to the court’s ruling in Shelby County v. Holder, states and jurisdictions previously covered under § 4 do not need to be precleared under the requirements of § 5. It is still possible that states or jurisdictions could be “bailed in” again for preclearance under the VRA, if a pattern of current discrimination is found.

Alabama Legislative Black Caucus v. Alabama, No. 2:12-cv-691 (M.D. Ala.)

The Alabama Legislative Black Caucus and others filed suit claiming that the Alabama Legislature violated the Equal Protection Clause of the 14th Amendment by drawing the 2012 state legislative map with race as their predominant motivation.

The state sought to redistrict to achieve two main goals: minimizing the extent to which a district may deviate from precisely equal population by setting for itself a 1 percent population deviation (so no district population would be more than one percent larger or smaller than the ideal), and compliance with the Voting Rights Act. The legislature argued that its goal was to faithfully comply with the Voting Rights Act, which requires the state to draw districts that preserve the minority community’s ability to elect the candidate of its choice. The resulting maps added many new minority voters to majority-minority districts.

The three-judge federal district court ruled in favor of the state. Mem. Opinion & Order (M.D. Ala. Dec. 20, 2013).

On appeal, the Supreme Court reversed and remanded the case to the three-judge federal district court. The Supreme Court declared that to prove that racial considerations predominated, the plaintiffs needed to prove that the legislature purposely subordinated traditional race-neutral districting principles to race-based considerations. No. 13-895, 575 U.S. ____ (Mar. 25, 2015).

The race-neutral principle applied by the Legislature was to maintain a population deviation of no more than 1 percent. The Supreme Court held that this was not a traditional redistricting principle, but in fact was a background principle. This ruling does not indicate that the Legislature acted with discriminatory intent or is not within its right to enact a percentage-based threshold. Instead, the ruling clarified that the court will not and lower courts must not view this principle with the same level of deference it gives to traditional principles. By being declared a background principle, the 1 percent goal is not of equal weight when viewed against racial considerations. Therefore, the lower court must look at traditional principles, such as compactness and contiguity for example, to see if they were used alongside racial considerations when the Legislature drew the maps. After weighing these traditional principles, the lower court may still be able to find that racial considerations predominated. Id.

When racial considerations predominate, the reason for this predominance must be narrowly tailored to a compelling governmental interest. The Supreme Court remanded the case to the three-judge federal district court to apply this standard. Id.

The Supreme Court also indicated that there may be solid evidence that race does predominate, citing testimony that legislators in charge of creating the plan told their technical advisers that a primary redistricting goal was to maintain existing racial percentages in each majority-minority district. Id.

As for districts that were held to be narrowly tailored, the Supreme Court ruled that the district court’s standard required the Legislature to ask itself the wrong questions. The district court said the question the Legislature should ask is “How can we maintain present minority percentages in majority-minority districts?” They should have required the Legislature to ask, “To what extent must we preserve existing minority percentages in order to maintain the minority’s present ability to elect the candidate of its choice?” This requires a functional analysis that looks at whether a new redistricting plan would likely deprive minority voters of their ability to elect a candidate of their choice. Id.

The Supreme Court also ruled that the three-judge federal district court was in error when it looked to the Legislature’s maps as an undifferentiated whole. The Legislature stated that it followed no bright-line rules and that race did not predominate in the drawing of some or many districts. Again, the Supreme Court said this is the wrong standard to apply. The district court should have scrutinized each individual district. According to previous Supreme Court case law, an Equal Protection Clause violation is based upon placing a significant number of “voters within or without a particular district.” Miller v. Johnson, 515 U.S. 900, 916 (1995).

On remand, the three-judge federal district court found for the plaintiffs on their claims in 12 of the 36 districts in question. Mem. Op. & Order (M.D. Ala. Jan. 20, 2017). The court then enjoined the use of these 12 districts in future elections. The legislature enacted redrawn maps on May 19, 2017. Act Nos. 2017-347 (Senate); 2017-348 (House).

Plaintiffs did not object to any of the redrawn majority-black districts, but to two House and one Senate majority-white districts that were essentially unchanged from the 2012 districts that had not previously been challenged. Since none of the previous plaintiffs lived in these districts, they supported intervention by voters who did. They alleged that these districts were both racial gerrymanders and partisan gerrymanders. The three-judge court denied intervention as untimely and held that the remaining plaintiffs lacked standing to challenge these districts and, in the alternative, had failed to identify a standard for evaluating their partisan gerrymandering claim. Mem. Op. & Order (M.D. Ala. Oct. 12, 2017). On Oct. 23, 2017, the court entered its final judgment ending the case.

Alaska

AK flagIn re 2011 Redistricting Cases, No. S-14721(Alaska 2012)

This case was a consolidation of multiple challenges to the post-2010 census maps drawn by Alaska’s reapportionment board. There were many state and federal constitutional challenges to the maps, but the main issue faced by the Alaska Supreme Court was how to resolve the tension “between strictly complying with the Alaska Constitution . . . and the contrary requirements of the federal Voting Rights Act.” Order at 13-14 (June 19, 2012) (Stowers, J., dissenting to May 22, 2012 Order).

Alaska’s constitution requires that district lines be drawn with the primary and preliminary focus of complying with the art. VI, §6, requirements of contiguity, compactness, and relative socioeconomic integration found in Alaska’s constitution. See Hickel v. Southeastern Conference, 846 P.2d 38 (Alaska 1992). This process must be followed before any other considerations are taken into account, including compliance with the Voting Rights Act. Because the Reapportionment Board began drawing the maps by seeking to achieve compliance with the Voting Rights Act, it violated the method of redistricting laid out by the state Supreme Court in Hickel, and the maps were struck down as violating the state constitution. Order, 274 P.3d 466 (Alaska Mar. 14, 2012).

On remand, the Reapportionment Board chose not to redraw 22 unchallenged districts, redrawing only those affected by § 2 of the Voting Rights Act. On appeal, the Alaska Supreme Court held the board must first draw a plan for all 40 House districts without regard to complying with the Voting Rights Act and then, “to the extent it is noncompliant, make revisions that deviate from the Alaska Constitution when deviation is ‘the only means available to satisfy Voting Rights Act requirements.’” Op. at 6, 294 P.3d 1032, 1035 (Alaska Dec. 28, 2012) (quoting 274 P.3d at 467).

Ultimately, the Supreme Court approved new maps prior to the 2012 elections. 

Arkansas

FlagJeffers v. Beebe, No. 2:12-cv-16 (E.D. Ark. Sep. 17, 2012)

Registered voters of Arkansas challenged the state Senate districts in a federal district court as a violation of Section 2 of the Voting Rights Act, an equal protection violation under the 14th Amendment of the U. S. Constitution, and a violation of the 15th Amendment of the U. S. Constitution. Plaintiffs argued that the districts in question did not have a large enough black voting-age population (BVAP) to elect a member of their choosing. Although it was a majority-minority district with a BVAP of 53 percent, block voting by White voters usually defeated their preferred candidate of choice. Plaintiffs’ argued that a BVAP of 60 percent was necessary to defeat the White voting bloc in the district.

The court denied the plaintiffs’ challenge, stating that a BVAP of 53 percent was sufficient and that they did not prove that the Arkansas Board of Apportionment drew districts with an intent to discriminate based on race. In addition, the court stated that creation of the redistricting plan was not the result of racial intent, but instead reflected political preferences. Up to this point, jurisprudence lacks a clear standard for judging partisan redistricting claims, therefore making plans that draw districts with partisan intentions okay. 

Arizona

AZ flagUnlike 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. 

Harris v. Arizona Independent Redistricting Commission, No. 14-232, 578 U.S. ____ (Apr. 20, 2016)

Voters in Arizona challenged the independent commission’s state legislative redistricting plan based on a wider population deviation among districts, alleging that the plan violated the Equal Protection Clause of the 14th Amendment that requires states to “make an honest and good faith effort to construct districts…as nearly of equal population as is practicable.”  Reynolds v. Sims, 377 U.S. 533, 577 (1964). Plaintiffs argued that the increase in deviation in district populations in the 2010 cycle redistricting plan stemmed from illegitimate considerations, in this case partisanship. Plaintiffs argued that the Commission drew the plan in order to favor one political party and the result was that the maximum population deviation of the revised plan was twice as much as the original plan (8.8 percent deviation for the 2010 maps, compared to 4.07 percent for the 2000 maps).

The Department of Justice, under its then-existing preclearance process, approved the revised redistricting plan. Plaintiffs then filed suit alleging a 14th Amendment Equal Protection Clause violation. The commission responded by stating that the purpose the population deviation was due to efforts to comply with § 5 of the Voting Rights Act and not based on partisanship.

A three-judge federal district court ruled in favor of the commission. The Supreme Court affirmed the district court’s decision, with Justice Stephen Breyer writing for a unanimous court.

The Supreme Court held that deviations are justified by “legitimate considerations incident to the effectuation of a rational state policy.” Reynolds v. Sims, 377 U.S. 533, 579 (1964). These legitimate factors include: compactness, contiguity, integrity of political subdivisions, competitive balance of political parties, and § 5 of the Voting Rights Act. In addition, plaintiffs must show that it is “more probable than not that a deviation of less than 10 percent reflects the predominance of illegitimate reapportionment factors.”

The district court concluded that the deviations were the result of a good-faith effort to comply with the Voting Rights Act. The plaintiffs did not show that it is more probable than not that the deviation reflects the predominance of illegitimate reapportionment factors. Therefore, plaintiffs failed to show that the revised plan violates the Equal Protection Clause, and the plans remain in place. 

California

CA flagNo major cases.

Colorado

CO flagIn re Reapportionment of the Colo. Gen. Assembly, No. 11SA282, 332 P.3d 108 (Colo. Nov. 15, 2011).

This case is mandated every year following the decennial redistricting by the Colorado Constitution, which requires the state Supreme Court to approve any legislative plan adopted by the General Assembly. Colo. Const. art. V, § 48(e). The main issue in this case was whether the Reapportionment Commission responsible for crafting plans for the General Assembly to consider violated the hierarchy of considerations set forth in the 1982 reapportionment cases. See In re Reapportionment of the Colo. Gen. Assembly, 647 P.2d 191 (Colo. 1982) [hereinafter In re Reapportionment 1982]. In re Reapportionment 1982 created a hierarchy of weight that must be given to all of the mandatory criteria, prohibiting lower-ranked criteria from infringing on higher-ranked criteria if not absolutely necessary. These criteria were: (1) the 14th Equal Protection Clause; (2) § 2 of the Voting Rights Act of 1965; (3) Colo. Const. art. V, § 46 (requiring substantial population equality of districts, with maximum deviation of +/- 5%); (4) Colo. Const. art. V, § 47(2) (prohibiting districts from dividing counties except when necessary to comply with equal populations, and requiring that the number of cities and towns split between multiple districts be as small as possible); (5) Colo. Const. art. V, § 47(1) (requiring districts to be as compact as possible and consist of contiguous whole general election precincts); and (6) Colo. Const. art. V, § 47(3) (requiring preservation of communities of interest within a district wherever possible).

The commission’s plan that the legislature ultimately adopted split several counties around Denver into multiple districts, claiming this was necessary to comply with the Voting Rights Act. The challengers to the maps said there was no evidence indicating a need to create majority-minority districts in either of the contested counties (Jefferson and Arapahoe), and thus the commission needlessly violated art. V, § 47(2)’s prohibition on minimizing the number of cities and towns with multiple districts. The Supreme Court held that the commission had not established a need to comply with the Voting Rights Act, and thus it improperly infringed on the commands of § 47(2). The districts were remanded to the commission to be redrawn correctly.

Connecticut

CT flagNo major cases.

Delaware

DE flagNo major cases.

Florida

FL flagFlorida’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. 

In re Senate Joint Resolution of Legislative Apportionment 1176 (Apportionment I), No. SC12-1, 83 So.3d 597 (Fla. Mar. 9, 2012)

Senate, House, and congressional redistricting plans passed the legislature on Feb. 9, 2012. art. III, § 16 of the state constitution provides for automatic review by the state Supreme Court to determine the validity of Senate and House apportionment plans. In Apportionment I, the Florida Supreme Court interpreted the Fair Districts Amendments for the first time. The court explained that, while the Fair Districts Amendments do not prohibit a partisan effect, an intent to favor or disfavor a political party or an incumbent can be inferred from objective indicators, such as a district’s level of compliance with compactness and other second-tier requirements. The court also concluded that compactness is a geographical inquiry that begins with consideration of a district’s shape, and that quantitative measures of compactness aid the visual inquiry. In applying the requirement that districts, where feasible, utilize existing political and geographical boundaries, the court emphasized the importance of preserving counties and municipalities whole, rather than dividing them among districts. The court also confirmed that the requirements set forth in tier two (e.g., compactness and using existing political and geographic boundaries) must yield to the requirements set forth in tier one and § 5 of the Voting Rights Act. The court found that the state Senate plan contained indicators of improper intent and ordered eight Senate districts to be redrawn. The state House plan was approved.

In re Senate Joint Resolution of Legislative Apportionment 2-B (Apportionment II), No. SC12-460, 89 So.3d 872 (Fla. Apr. 27, 2012)

On March 27, 2012, the Legislature adopted a revised Senate plan in accordance with the court’s order. The Florida Supreme Court reviewed the revised plan as prescribed by the state constitution and declared the Senate plan valid.

House of Representatives v. League of Women Voters of Florida (Apportionment III), No. SC13-252, 118 So.3d 198 (Fla. July 11, 2013)

The revised Senate plan was challenged again in League of Women Voters of Florida v. Detzner, Complaint, No. 2012 CA 2842 (2nd Cir. Leon County Sept. 5, 2012). Plaintiffs alleged that the legislature continued to violate the state constitution by “drawing districts that will keep incumbent Senators in office, assist incumbent house members with election to the Senate, impact internal Senate leadership battles, and make gains for the controlling party.” The legislature moved to dismiss the complaint based on the view that once the apportionment plan was validated through the Supreme Court’s constitutionally mandated automatic review, no further challenges could be brought. The trial court denied the motion to dismiss, and the legislature petitioned the state Supreme Court to review the trial court’s ruling.

The Florida Supreme Court rejected the legislature’s argument, stating that it never interpreted art. III, § 16(d) of the Florida Constitution, which provides that the Supreme Court’s judgment determining an apportionment to be valid is “binding upon all the citizens of the state,” as granting the Supreme Court exclusive jurisdiction over all claims relating to legislative apportionment. The court held that the lower court did have subject matter jurisdiction to hear the case.  That litigation continued until the Circuit Court adopted the plaintiffs’ Senate plan in League of Women Voters of Florida v. Detzner, No. 2012 CA 2842 (2nd Cir. Leon County Dec. 30, 2015), discussed below.

League of Women Voters of Florida v. Detzner, No. 2012 CA 2842 (2nd Cir. Leon County Dec. 30, 2015) In light of the July 9, 2015, Florida Supreme Court opinion upholding the finding that the 2012 congressional plan was drawn with the intent to favor a party or incumbent, the Florida Senate stipulated that the 2012 Senate plan similarly violated the law and would not be enforced or used for the 2016 elections. Notice of Filing Stipulation and Consent Judgment (July 28, 2015). The Legislature convened in special session on Oct. 19, 2015, to adopt new Senate districts and adjourned on Nov. 5, 2015, without adopting a plan. The Senate president submitted proposed plans to the trial court, as did the plaintiffs, and the court adopted one of the plaintiffs’ plans that it found to be metrically superior. Final Judgment Adopting Remedial Senate Plan at 68. The legislative defendants did not appeal the trial court’s final judgment.

Georgia

GA flagGeorgia State Conf. of NAACP v. Georgia, No. 1:17-cv-1427  (N.D. Ga. Aug. 25, 2017), dismissed per stipulation (Jan. 16, 2019)

Plaintiff African-American voters and the NAACP alleged that Georgia’s 2015 redistricting of Georgia House of Representatives Districts 105 and 111 resulted from racial and partisan gerrymandering that violated the 14th and 15th Amendments to the U.S. Constitution and § 2 of the Voting Rights Act. Both the state of Georgia and the secretary of state were named as defendants.

A three-judge federal district court dismissed the claim against the state of Georgia brought under 42 U.S.C. § 1983 for violating the 14th Amendment by intending to discriminate against plaintiffs by diluting their votes, on the ground that § 1983 had not waived the state’s sovereign immunity. The court dismissed the claims against both the state and the secretary of state for violating § 2 of the Voting Rights Act by intending to discriminate against plaintiffs by diluting their votes, and for violating the Equal Protection Clause of the 14th Amendment by creating a partisan gerrymander, on the ground that the complaint failed to state a claim on which relief might be granted.

With regard to the violation of § 2, plaintiffs had failed to allege that all three preconditions required by Thornburg v. Gingles, 478 U.S. 30 (1986), for proving a violation of § 2 had been met. First, plaintiffs had not alleged that African Americans were a majority of the voting-age population in either District 105 or District 111. Rather, in the 2012 plan, they were only 32.4 percent of District 105 and only 33.2 percent of District 111. Their population was reduced under the 2015 plan. Even considering all non-white voters as the relevant minority, all non-white voters in District 111 were only 43.9 percent of the voting-age population. Second, in District 105, where all non-white voters were 51.6 percent of the voting-age population, plaintiffs had not alleged that they were politically cohesive.

The flaws in the § 2 complaint also required the dismissal of claims under the 14th Amendment.

With regard to the claim that the 2015 plan was a partisan gerrymander, the court approved of the standard set forth in Whitford v. Gill, that:

the First Amendment and the Equal Protection clause prohibit a redistricting scheme which (1) is intended to place a severe impediment on the effectiveness of the votes of individual citizens on the basis of their political affiliation, (2) has that effect, and (3) cannot be justified on other, legitimate legislative grounds.

No. 3:15-cv-421, Op. and Order at 56, 218 F. Supp. 3d 837, 884 (W.D. Wis. Nov. 21, 2016).

The court noted that the “Whitford standard” had been applied by another three-judge federal district court, in Common Cause v. Rucho, No. 1:16-cv-1026, Mem. Op. at 21 (M.D.N.C. Mar. 3, 2017), and agreed that the proposed standard was judicially manageable. The court concluded that plaintiffs had properly alleged discriminatory intent, but had failed to set forth “a judicially manageable standard for measuring the discriminatory effect of partisan gerrymandering.” The court agreed with the courts in Whitford and Common Cause v. Rucho that partisan symmetry was a proper test of whether a redistricting plan had a discriminatory effect, and that partisan symmetry could be measured by the “efficiency gap.” But the court noted that plaintiffs had not proposed to use partisan symmetry as their test nor the efficiency gap as their measure of partisan symmetry. Nor had they proposed any other test or measure. Therefore, the partisan gerrymandering claim had to be dismissed.

The dismissal was without prejudice, and the court advised plaintiffs how their complaint might be amended to withstand another motion to dismiss:

If the plaintiffs file an amended complaint, they may wish to elaborate on some of the statistical and judicial manageability issues the defendants raise in their motion to dismiss. For example, the defendants point out that the efficiency gap measure in Whitford was designed to analyze a statewide redistricting plan as a whole, as opposed to two individual redrawn districts. Plaintiffs could aid the court in responding to this observation.

Mem. Op. & Order at 35 n.12 (citation omitted).

The court left standing the claim that the 2015 redistricting law was a racial gerrymander that violated the 14th and 15th Amendments.

After the Nov. 2018 election and the close of discovery, the case was dismissed by stipulation of the parties. Order (Jan. 16, 2019).

Hawaii

HI flagNo major cases.

Idaho

ID flagTwin Falls County v. Idaho Comm’n on Redistricting, No. 39373, 2012, 271 P.3d 1202 (Idaho 2012).

This case involves a state constitutional challenge to the legislative apportionment plan adopted by the Idaho Commission on Redistricting. Plaintiffs argued the plan adopted by the commission violated art. III, § 5, of the Idaho Constitution, which states that “a county may be divided in creating districts only to the extent it is reasonably determined by statute that counties must be divided to create senatorial and representative districts which comply with the constitution of the United States.” Idaho Const. art. III, § 5. The Idaho Supreme Court had previously created a three-tiered hierarchy of controlling law for redistricting purposes, with each tier being mandatory and not permitting any lower tiers from superseding them: (1) the Equal Protection Clause of the 14th Amendment; (2) Idaho Const. art. III, § 5; and any state statutes.

The Idaho Supreme Court interpreted the requirements of art. III, § 5, as being mandatory, thus holding that the only permissible reason to deviate from art. III, § 5, was to comply with the Equal Protection Clause, and only then to the smallest extent necessary. Because the commission had considered plans that split fewer counties and also complied with the Equal Protection Clause, the plan the commission ultimately adopted did not split as few counties as was practicable. Thus, the commission’s plan violated the Idaho Constitution. The court directed the commission to reconvene and adopt new maps that complied with the mandates of both the federal and state constitutions. 

Illinois

IL flagNo major legislative cases.

Indiana

IN flagNo major cases.

Iowa

FlagNo major cases.

Kansas

KS flagNo major cases.

Kentucky

KY flagLegislative Research Commission v. Fischer, No. 2012-SC-000091 (Ky. Apr. 26, 2012)

This case was a state constitutional challenge to the state House and Senate maps adopted by the Kentucky Legislature in 2011. § 33 of the Kentucky Constitution requires that state legislative districts be drawn “as nearly equal in population as may be without dividing any county, except where a county may include more than one district.” The plaintiffs in Fischer v. Grimes, Civil Action No. 12-Cl-109, 2012 Ky. Cir. LEXIS 1 (Ky. 48th Judicial Circuity Court, Franklin Co., Feb. 7, 2012), below had requested a temporary injunction preventing the state from using the new plans until remedial plans could be drawn. The trial court granted plaintiffs’ motion and enjoined the state from enforcing the maps, noting that while there was a conflict between the dual commands of population equality and minimizing county splits, the Kentucky Supreme Court’s precedents on the issue made it a requirement to ensure as few splits as mathematically possible.

On appeal, the Kentucky Supreme Court noted that it had previously adopted a limit on population deviations of plus or minus 5 percent from the ideal, rather than the federal limit of 10 percent on the overall range of deviations. At least one district in each plan had a deviation of more than 5 percent, which was not saved by having other districts less than 5 percent. The court held that the Legislative Research Commission had not carried its burden of proving the excessive population deviation was a result of a consistently applied rational state policy. Since plaintiffs had demonstrated that fewer county splits and population deviations of no more than five percent could be achieved in both the House and Senate, the new maps adopted by the legislature in 2011 were unconstitutional.

With the primary election scheduled for May 22, 2012, the court ordered the 2012 election to be conducted using the districts enacted in 2002. New districts were enacted by the legislature in 2013. 2013 Ky. Acts SS 1.

Louisiana

LA flagNo major cases.

Maine

ME flagNo major legislative cases. 

Maryland

MD flagNo major legislative cases.

Massachusetts

MA flagNo major cases.

Michigan

MI flag

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. The stays were granted. No. 18A1170 (May 24, 2019); No. 18A1171 (May 24, 2019).

Minnesota

MN flagNo major cases.

Mississippi

MS flagMississippi only faced one challenge to its 2010 redistricting plan, under the theory that the state legislative plan was malapportioned in violation of the Fourteenth 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.

Mississippi NAACP v. Barbour, No. 3:11-cv-159 (S.D. Miss. May 16, 2011), aff’d No. 11-82  (U.S. Oct. 31, 2011) (mem.), motion to set aside 2011 elections denied (S.D. Miss. Nov. 19, 2012), aff’d No. 12-1019 (U.S. May 20, 2013) (mem.)

The Mississippi NAACP filed suit alleging that the legislative plans drawn for the 2010 cycle are unconstitutionally malapportioned and violate the Equal Protection Clause of the 14th Amendment. The plaintiffs asked a three-judge federal district court to enter a preliminary injunction and permanent injunction enjoining elections under the existing legislative redistricting plans. They also asked the court to draft and implement a plan, to be used instead of the legislature’s plan.

The federal district court ruled that the 2011 elections for the state House and Senate could go on absent a plan adopted by the Mississippi Legislature precleared before the June 1 qualifying deadline for the 2011 elections. The court ruled in favor of the legislature on the premise that it was not required to redistrict at this time. The U.S. Supreme Court has previously held that state legislatures are required to redistrict every ten years. Here, only nine years had passed. In addition, the three-judge panel found that the legislature did not violate the Mississippi Constitution pertaining to when the reapportionment process must begin.

On June 7, 2011, the NAACP appealed the three-judge panel’s decision to the U.S. Supreme Court. The court summarily affirmed the lower court’s ruling on Oct. 31, 2011. On Oct. 13, 2012, the NAACP asked the court to set aside the 2011 election results and schedule special legislative elections for all legislative districts in 2013. (Mississippi has four-year terms for both the House and Senate.) On Nov. 19, 2012, the motion was denied. Plaintiffs appealed to the Supreme Court once more, and again, on May 20, 2013, the U.S. Supreme Court affirmed the lower court’s order. 

Missouri

MO flagNo major cases.

Montana

MT flagNo major cases.

Nebraska

NE flagNo major cases.

Nevada

NV flagNo major cases.

New Hampshire

NH flagCity of Manchester v. Gardner, No. 2012-0338 (N.H. June 19, 2012)

Plaintiffs argued that by strictly adhering to a 10 percent overall deviation rule for the state House redistricting plan, the legislature violated the New Hampshire Constitution by adhering to it needlessly, and that they could have complied with it more fully by enacting a plan that afforded more towns and wards their own districts. The legislature failed to provide approximately 62 towns, wards, and places with their own representatives, which the plaintiffs argued was excessive. In addition, the plaintiffs objected to the new plan because it divided certain cities, towns and wards, and also devised districts that were multi-member districts comprised of towns, wards, and places that are not contiguous.

The New Hampshire Supreme Court ruled in favor of the legislature, stating that plaintiffs did not show that the legislature lacked a rational or legitimate basis for adhering to the 10 percent rule. The court went on to say that it had not found a case in which a court has required a legislature to adopt a redistricting plan with an overall deviation range of more than 10 percent in order to enhance its compliance with a state constitutional mandate. The state supreme court remanded the case to the state trial court, which subsequently dismissed the case. 

New Jersey

NJ flagNo major cases.

New Mexico

NM flagNo major cases.

New York

NY flagAlthough 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.  

North Carolina

NC flagThe 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.

Covington v. North Carolina, No. 1:15-cv-399 (M.D.N.C. Aug. 11, 2016) (districts must be redrawn), aff’d No. 16-649 (U.S. June 5, 2017) (mem.); (M.D.N.C. Nov. 29, 2016) (special election must be held in 2017), vacated & remanded No. 16-1023 (U.S. June 5, 2017) (per curiam); (M.D.N.C. Jan. 21, 2018) (special master’s plan adopted), aff’d in part & rev’d in part No. 17-1364, 585 U.S. ____ (June 28, 2018) (per curiam)

In 2011, plaintiffs claimed that the legislature employed a race-based proportionality policy similar to Virginia for state house and senate plans. See Bethune-Hill v. Va. State Bd. of Elections, No. 15-680, 580 U.S. ___ (Mar. 1, 2017). They argued that approximately 10 of the state’s 50 Senate districts and approximately 24 of the state’s 120 House districts should be black-majority districts. Instructions by one Senator and one Representative were given orally to an individual responsible for drawing the districts. Plaintiffs alleged that the instructions were to draw a 50-percent-plus-one district wherever in the state there was a sufficiently compact black population. Plaintiffs alleged a Fourteenth Amendment Equal Protection Clause violation because the plan relied too heavily on race and that the legislative plans unnecessarily placed too many African-American voters in these contested districts. The three-judge federal district court agreed with the plaintiffs. It concluded that the General Assembly used race as the predominant factor when drawing the challenged districts. The critical evidence that the court relied upon was the statements of the legislators in charge of the plans. The court stated that “although racial gerrymandering claims are properly brought district by district, evidence that applies statewide--especially direct evidence revealing legislative intent--will frequently be material.” The General Assembly also failed to show that their use of race was narrowly tailored to further a compelling interest. Nine Senate and 19 House districts were ordered redrawn. Mem. Op. (M.D.N.C. Aug. 11, 2016).

On November 29, 2016, the Court ordered that special elections be held in 2017, with the terms of members in modified districts shortened to one year and their successors to serve for a term of one year, pending the 2018 elections. The U.S. Supreme Court granted North Carolina’s emergency motion for a stay of the district court’s remedial order. No. 16A646 (U.S. Jan. 10, 2017) (mem.).

On June 5, 2017, the U.S. Supreme Court affirmed the federal district court’s decision invalidating the 28 districts, No. 16-649 (mem.), but vacated the remedial order requiring 2017 special elections, saying the district court had given insufficient attention to weighing the equities of requiring a special election, such as “the severity and nature of the particular constitutional violation, the extent of the likely disruption to the ordi­nary processes of governance if early elections are im­posed, and the need to act with proper judicial restraint when intruding on state sovereignty.” No. 16-1023 (per curiam) at 3.

On remand, the federal district court gave the General Assembly until September 1, 2017, to enact remedial districting plans to be used for the 2018 elections, but said that:

If the Senate Redistricting Committee and the House Redistricting Committee (1) publicly disclose the criteria to be used in drawing the remedial districts, (2) draw and publicly disclose proposed remedial districting plans applying those criteria and remedying the constitutional deficiencies with the Subject Districts, and (3) make public a method and process for receiving comments and evidence from the public and other legislators on or before August 21, 2017, the Court will, upon motion filed by the Legislative Defendants no later than that date, extend this deadline to September 15, 2017.

Order at 8 (M.D.N.C. July 31, 2017).

The General Assembly enacted remedial plans for Senate and House districts on August 31, 2017, and submitted them to the federal district court for its review. Notice of Filing (M.D.N.C. Sept. 7, 2017). The legislative defendants told the court:

Data regarding race was not used in the drawing of districts for the 2017 House and Senate redistricting plans. No information regarding legally sufficient racially polarized voting was provided to the redistricting committees to justify the use of race in drawing districts. To the extent that any district in the 2017 House and Senate redistricting plans exceeds 50% BVAP, such a result was naturally occurring and the General Assembly did not conclude that the Voting Rights Act obligated it to draw any such district.

Id. at 10.

On Sept. 15, 2017, plaintiffs filed objections to three Senate districts and nine House districts created by the proposed remedial plans. After a response from defendants and a hearing, the court expressed serious concerns that Senate Districts 21 and 28 and House Districts 21 and 57, as redrawn in 2017, failed to remedy the constitutional violations identified in the 2011 districts and that five 2011 House districts in Wake and Mecklenburg Counties had been redrawn by the General Assembly, even though they had not been found to violate the constitution or adjoin a district that did. Order, Doc. 206 at 1-2 (M.D.N.C. Nov. 1, 2017).

The court appointed a special master to draw remedial plans for the nine districts in accordance with the court’s instructions and report them to the court by Dec. 1, 2017, with the understanding that filings for the 2018 election would open Feb. 12, 2018. Id. at 5-14. The special master filed a draft plan on Nov. 13, Doc. 213 (as corrected Nov. 14), to which plaintiffs and the legislative defendants responded. Docs. 215-218 (Nov. 17-21). The special master filed his recommended plan on Dec. 1. Plan & Report, Doc. 220; Maps, Doc. 220-1.

After a hearing on Jan. 5, 2018, the court adopted the special master’s plan. Mem. Op. & Order (Amended) (Jan. 21, 2018).

The legislative defendants asked the U.S. Supreme Court to stay the decision of the district court pending resolution of a direct appeal. No. 17A790 (Jan. 24, 2018). Plaintiffs opposed the stay. (Feb. 2, 2018). The Supreme Court stayed the portion of the district court’s order that had rejected the General Assembly’s redrawing of five House districts in Wake and Mecklenburg Counties. This allowed the 2018 election to proceed using the remedial map drawn by the General Assembly in Aug. 2017, as modified by the special master’s plan for SD 21, SD 28, HD 21, and HD 57. The merits of the appeal on all nine districts remained to be decided at a later date. Order, No. 17A790, 583 U.S. ___ (Feb. 6, 2018) (mem.).

On June 28, 2018, the Supreme Court affirmed the portion of the district court’s order that had required that the special master’s plan for SDs 21 and 28 and HDs 21 and 57 to be used for the 2018 election and reversed the portion of the district court’s order that had rejected the General Assembly’s redrawing of five House districts in Wake and Mecklenburg Counties. Order, No. 17-1364, 585 U.S. ____ (2018) (per curiam). The Court held that the district court’s remedy should have been confined to violations of federal law, not the state law prohibition on mid-decade redistricting.

North Carolina Conference of NAACP Branches v. Lewis, No. 18CVS 002322 (N.C. Superior Ct, Wake County Nov. 2, 2018)

Following the February 6, 2018, refusal of the U.S. Supreme Court to enjoin use of the General Assembly’s August 31, 2017 remedial plan for four House districts in Wake County, plaintiffs challenged those districts as a mid-decade redistricting before a three-judge state panel in Wake County Superior Court. Complaint (Feb. 21, 2018). On April 13, 2018, the panel found that plaintiffs were reasonably likely to succeed on the merits, but that the election, in which absentee voting had begun four weeks earlier, was too far along to enjoin the use of the challenged districts for 2018. Order.

In a November 2, 2018 Order, the panel held that the alteration of the four districts was not necessary to remedy the racial gerrymander and thus violated the state constitution’s ban on mid-decade redistricting. It directed the General Assembly to enact a new Wake County House District map for use in the 2020 general election no later than the earlier of: 1) the adjournment of the 2019 regular session of the General Assembly, or 2) July 1, 2019. On June 25, 2019, the General Assembly enacted the Special Master’s plan for House districts in Wake County. SL 2019-46.

Common Cause v. Lewis, No. 18 CVS 014001, Judgment (N.C. Super. Ct. Wake County Sept. 3, 2019)

On November 13, 2018, plaintiffs challenged in state court many of the 2011 legislative districts as partisan gerrymanders that violated the North Carolina Constitution’s Free Elections, Equal Protection, Freedom of Speech, and Freedom of Assembly Clauses.

Of the 50 Senate and 120 House districts in the 2011 map, 9 Senate districts and 19 House districts had already been struck down as racial gerrymanders by a federal three-judge court in Covington v. North Carolina, No. 1:15-cv-399 (M.D.N.C. Aug. 11, 2016). Remedial maps for the Senate, N.C. Sess. Laws SL 2017-207, and House, SL 2017-208, had been enacted by the General Assembly in 2017, and modified by the Covington court. 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.

Plaintiffs’ four experts offered statistical evidence that both Senate and House plans had been drawn to intentionally and effectively perpetuate a Republican-controlled General Assembly.

Dr. Jowei Chen of the University of Michigan compared the enacted plans to simulated plans drawn by his computer. The simulated plans were programmed to comply with the criteria adopted by the Senate and House redistricting committees in 2017. Set 1 was 1,000 Senate and 1,000 House plans that were programmed to prioritize compactness and avoid splitting municipalities and precincts (VTDs). Set 2 was an additional 1,000 Senate and 1,000 House plans that also prioritized avoiding pairing incumbents. He found that the enacted plan was less compact and split more municipalities and precincts than any of the simulated plans. Dr. Chen measured the partisan lean of the districts in all the plans by using an index based upon ten statewide elections held since 2010, with results at the precinct level disaggregated to census blocks. He found that the enacted plans had fewer Democratic districts than any of the 4,000 simulated plans. He performed a uniform swing analysis to determine how each party’s share of seats changed as its share of the vote changed. He found that, as the Democratic share of the vote increased, so did the gap between the number of seats won by Democrats under the enacted plan and the number of seats they won under the simulated plans. He concluded that the enacted plans were extreme partisan outliers that subordinated to the partisan goals of the defendants the traditional criteria of compactness, avoiding splitting municipalities and precincts (VTDs), and avoiding pairing incumbents. Judgment at 38-67.

Dr. Jonathan Mattingly of Duke University used the Markov chain Monte Carlo computer algorithm to generate a number of maps that is greater than the number of atoms in the known universe. From all the generated maps, he selected a random, representative sample of hundreds of trillions of nonpartisan maps that were similar to the enacted maps with respect to compactness and splits of counties, municipalities, and precincts. Dr. Mattingly measured the partisan lean of the districts in the enacted plans and all the plans in his ensemble by using an index based upon 17 statewide elections held since 2008. He used the statewide share of the Democratic vote in each of the 17 elections to compare the number of Democrats likely to be elected under the enacted plan vs. the number likely to be elected under each of the plans in the ensemble. He found that, in two of the 17 elections, the enacted plans prevented Democrats from winning a majority of seats when their share of the vote would have let them win under the ensemble plans. He also did a uniform swing analysis that showed Democrats could not win a majority of seats in the House under the enacted plan unless they won around 55% of the statewide vote.

Dr. Mattingly ranked the districts in all of the plans from least Democratic to most Democratic and created box plots showing the share of the vote in each district under each of the 17 elections. The plots showed that, compared to the ensemble plans, the enacted plans had cracked Democrats out of the middle districts that would decide which party controlled the chamber and packed them into districts they could win easily.

Pl. Exhibit 485 at 11, Presidential Elec. 2012, Dem. Vote 48.91%

120 House Districts, Boxes are Ensemble Plans, Purple Dots are Enacted Plan

This confirmed the Republican bias of the enacted plans. Dr. Mattingly concluded that the enacted Senate and House plans were extreme partisan outliers when compared to his ensemble of plans and that the partisan bias was durable across a broad range of possible voting patterns and election results. Id. at 67-94.

Dr. Wesley Pegden of Carnegie Mellon University also used Markov chains to evaluate the enacted plans against simulated plans. Rather than tuning his algorithm to draw simulated plans from scratch based on the 2017 Adopted Criteria, he tuned it to begin with the enacted plan and make small, random changes to the district boundaries while constrained by the 2017 Adopted Criteria. A whole county or municipality could not be swapped between districts. A VTD or group of census blocks could not be swapped between districts if the swap would cause the population deviations of the simulated plan to exceed those of the enacted plan, would cause the average compactness score of the simulated plan to exceed the average of the enacted plan by more than 5%, or would split a county, municipality, or precinct that had been kept whole in the enacted plan. Once the algorithm made a swap satisfying his constraints, his algorithm evaluated the partisan characteristics of the map that resulted from the swap using six statewide elections since 2008. It repeated this process billions or trillions of times, comparing the enacted plan to all these other randomly generated plans. He found the enacted plan was more favorable to Republicans than 99.999% of the comparison maps generated by his algorithm. Id. at 94-105.

Dr. Chris Cooper of Western Carolina University analyzed the aggregate vote share of Democratic and Republican candidates in General Assembly elections since 2012, finding that Democrats received close to or over 50% of the vote in each election, but did not win a corresponding number of seats, because they won by large margins, whereas Republicans won by significantly narrower margins. Id. at 105-08.

Each of the four experts analyzed seven county groupings in the Senate and 16 county groupings in the House and concluded that partisan gerrymandering and bias in these groupings was responsible for the extreme partisan bias they found in their statewide analysis of the House and Senate. Id. at 109-223.

The Court found that the current district lines had harmed the North Carolina Democratic Party and would continue to do so by making it more difficult to recruit candidates and raise money at the same time it was necessary to spend and divert more financial resources than it would have under nonpartisan maps, both statewide and in individual districts. The districts harmed the party’s members by intentionally making it more difficult for some Democratic voters to elect candidates of their choice and making it extremely difficult for Democratic voters statewide to obtain Democratic majorities in the General Assembly. Id. at 225-27.

The Court found that the current district lines had harmed Common Cause and would continue to do so by impeding its missions to end partisan gerrymandering in North Carolina and hold legislators accountable. Id. at 230-31.

The Court found that defendants had offered no meaningful defense of the 2017 plans. Id. at 238-91.

The Court held that the enacted plans violated the Free Elections Clause of the North Carolina Constitution, Art. I, § 10, “All elections shall be free.” The Court found that the Legislative Defendants had used their control of the General Assembly to manipulate district boundaries to pack and crack Democratic voters with the predominant intent and effect of controlling and predetermining the outcome of legislative elections for the purpose of retaining Republican control of the General Assembly. It concluded that the mapmakers prevented Democratic voters from freely and honestly choosing their representatives, so that legislative elections did not fairly and truthfully ascertain the will of the voters. Judgment at 298-306.

The Court held that the enacted plans violated the Equal Protection Clause of the North Carolina Constitution, Art. I, § 19, “No person shall be denied the equal protection of the laws . . .” The Court found that the Legislative Defendants had intentionally discriminated against Democratic voters. It found that “the predominant goal of the 2017 Plans was to maximize Republicans’ political advantage by [cracking] Democratic voters into districts where their votes would be diluted, and [packing them into districts] where their votes would not matter.” Judgment at 311. The Court found that the plans had the intended effect. This cracking and packing:

prevents Democratic voters from obtaining a majority in the House or the Senate even in election environments where Democrats would obtain a majority under virtually any nonpartisan map. . . . There is nothing ‘equal’ about the ‘voting power’ of Democratic voters when they have a vastly less realistic chance of winning a majority in either chamber under the enacted plans.

Id. at 313.

The Court also found that the enacted plans had the effect of depriving Democrats of substantially equal legislative representation, since legislators would be less likely to represent the interests and policy preferences of voters who did not vote for them. Id. at 314. The Court found that the discriminatory effects were not justified by any legitimate governmental interest. It found that the interests proffered by the Legislative Defendants, such as that the districts were more compact and split fewer VTDs than previous plans, and minimized incumbent pairings and preserved core constituency-incumbent relations, had been subordinated to their goal of devaluing the votes of Democratic voters in order to entrench the Republican Party in power. Id. at 315-16.

The Court held that the enacted plans violated the Freedom of Speech and Freedom of Assembly Clauses of the North Carolina Constitution, Art. I, § 14, “Freedom of speech and of the press are two of the great bulwarks of liberty and therefore shall never be restrained . . . , and Art. I, § 12, “The people have a right to assemble together to consult for their common good, to instruct their representatives, and to apply to the General Assembly for redress of grievances . . . .” The Court found that the enacted plans burdened plaintiffs’ right to express support for a candidate and his views by voting for him, and burdened their right to associate with the political party of their choice. Judgment at 320-22. It found that the plan drafters had identified Democratic voters and “singled [them out] for disfavored treatment by packing and cracking them into districts with the aim of diluting their votes and, in the case of cracked districts, ensuring that these voters are significantly less likely, in comparison to Republican voters, to be able to elect a candidate who shares their views.” Judgment at 323. It found that “Democratic voters who live in cracked districts have little to no ability to instruct their representatives or obtain redress from their representatives on issues important to those voters,” and that they and the North Carolina Democratic Party “will be unlikely to obtain redress from ‘the General Assembly’ on important policy issues, because they will unlikely be able to obtain Democratic majorities in the General Assembly.” Judgment at 327. It found the enacted plans debilitated the party and weakened its ability to carry out its core functions and purposes, such as “fundraising, registering voters, attracting volunteers, generating support from independents, and recruiting candidates to run for office.” Id.  It found that the enacted plans burdened the party’s campaign donations and expenditures, because it “must spend more money than it would need to under nonpartisan plans, both statewide and in individual races, and the money that the NCDP spends is less effective than it would be under nondiscriminatory maps.” Id. at 328. The Court concluded that the plans did not survive strict scrutiny of their discrimination against plaintiffs’ protected expression and association because “Legislative Defendants have offered no credible justification for their partisan discrimination.” Id.

The Court ordered the General Assembly to enact remedial maps by September 18, 2019. Id. at 350.

The Court announced its intention to appoint Prof. Nathaniel Persily of Stanford University, who had served as the Special Master in Covington v. North Carolina, as “the Referee in this matter to (1) assist the Court in reviewing any Remedial Maps enacted by the General Assembly, and (2) to develop remedial maps for the Court should the General Assembly fail to enact lawful Remedial Maps within the time allowed.” Order (Sept. 13, 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.

North Dakota

ND flagNo major cases.

Ohio

OH flagNo major cases.

Oklahoma

OK flagNo major cases.

Oregon

OR flagNo major cases.

Pennsylvania

PA flagHolt v. 2011 Legislative Reapportionment Comm’n, No. J- 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 31 -2012, 38 A.3d 711 (Pa. Feb. 3, 2012)

This is a consolidation of multiple challenges to the Final Plan adopted by the Pennsylvania Legislative Reapportionment Commission [hereinafter LRC] following the 2010 census. While there were more than ten individual challenges, there were two challenges to the entire legislative scheme that the Pennsylvania Supreme Court used when it struck down the plan as unconstitutional. Most of the legal dispute in this case centered around what kinds of evidence challengers could bring to the attention of the Supreme Court to back up their arguments. The Supreme Court held that its precedents did not preclude it from seeing alternative plans from challengers, so long as those plans were being submitted as evidence of the unconstitutionality of the adopted maps, and not as proposed plans that should be enacted in place of the unconstitutional maps adopted by the LRC. The Supreme Court struck down the LRC’s Final Plan, saying it violated art. II, § 17(d) of the Pennsylvania Constitution, which requires the LRC to craft a plan with no more splits of townships, wards, and counties than is “absolutely necessary.” The court remanded the case to the LRC, directing them to adopt maps that had fewer splits as mandated by art. II, § 17(d).

Holt v. 2011 Legislative Reapportionment Comm’n, No. J-99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111-2012 (Pa. May 8, 2013)

On remand, the LRC adopted Senate and House plans with fewer political subdivision splits than in its 2011 Final Plan, but not as few as in plans submitted by challengers that also had lower population deviations and more compact districts. On appeal, the Pennsylvania Supreme Court held that “the LRC, in crafting the 2012 Final Plan, sufficiently heeded this court’s admonition that it ‘could have easily achieved a substantially greater fidelity to all of the mandates in Article II, § 16’ than it did in its unconstitutional 2011 Final Plan, and that “the appellants have not demonstrated that the 2012 Final Plan is contrary to law.” Slip op. at 59.

Rhode Island

RI flagNo major cases.

South Carolina

SC flagBackus 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.).

South Dakota

SD flagNo major cases.

Tennessee

TN flagMoore v State, 436 S.W. 3d 775 (Tenn. Ct. App. 2014)

Article II, § 6 of the Tennessee Constitution prohibits splitting counties to form senatorial districts.  In 2012, the General Assembly adopted a Senate redistricting plan splitting eight counties with an overall population range of 9.17 percent. Plaintiffs challenged the constitutionality of the plan based on county splitting and offered a plan that split five counties with an overall population range of 10.05 percent as a plan more compliant with the Tennessee Constitution. No plan splitting fewer counties with an overall population range under either 9.17 percent or 10 percent was offered as an alternative. Affirming summary judgment in favor of the state, the Tennessee Court of Appeals found that the state demonstrated that crossing county lines was necessary to best achieve population equality on balance with the state constitutional interests.

Texas

TX flagTexas 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. Opinion, 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.

Conclusion

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 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. 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 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.

Utah

UT flagNo major cases.

Vermont

VT flagNo major cases.

Virginia

VA flag Virginia has seen two major challenges to its state legislative maps: one under federal law and one under state law. Bethune-Hill is a racial gerrymandering case challenging 12 state House districts. Vesilind was a lawsuit alleging that several state senate and house districts are unconstitutionally non-compact.

Bethune-Hill v. Va. State Bd. of ElectionsNo. 3:14-cv-852 (E.D. Va. Oct. 22, 2015), aff’d in part, vacated in part, & remanded, No. 15-680, 580 U.S. ___ (Mar. 1, 2017), on rehearing, (E.D. Va. June 26, 2018) (plan ordered redrawn), appealed No. 18-281 (U.S. Sept. 14, 2018), new plan imposed (E.D. Va. Feb. 14, 2019), appealed No. 18-1134 (U.S. Feb. 27, 2019) (new plan alleged to be racial gerrymander)

Voters in Virginia filed suit in a three-judge federal district court alleging that the Virginia General Assembly violated the Equal Protection Clause when it drew state House districts in 2011. The general assembly drew new lines for 12 state House districts that ensured that each of these districts would have a black voting-age population (BVAP) of at least 55 percent. The general assembly claimed they did so in order to comply with the Voting Rights Act.

During discovery, plaintiffs sought from the House intervenors all documents related to the 2011 Virginia redistricting process, including communications with members, staff, lobbyists, consultants, political organizations, constituents, voters, and government officials. The House produced some documents but withheld others on the basis of legislative and other privileges. The court applied the five-factor test used in Comm. for a Fair & Balanced Map v. Ill. Bd. of Elections, No. 1:11-cv-5065, Op. & Order at 14 (N.D. Ill. Oct. 12, 2011); Favors v. Cuomo, No. 1:11-cv-5632, Mem. & Order at 54-62 (E.D. N.Y. Aug. 10, 2012); and Page v. Va. State Bd. of Elections, No. 3:13-cv-678, Mem. Op. at 17-23 (E.D. Va. May 8, 2014); and ordered the House to produce the following: (1) any documents or communications created after the redistricting legislation's date of enactment; (2) any documents or communications shared with, or received from, any individual or organization outside the employ of the legislature; and (3) any documents or communications within the House that were generated before the legislation’s date of enactment and reflected strictly factual information or were produced by committee, technical, or professional staff for the House (excluding the personal staff of legislators) that reflected opinions, recommendations, or advice (but not comments, requests, or opinions expressed by legislators or their aides in communication with that staff). Bethune-Hill v. Va. State Bd. of Elections, No. 3:14-cv-852, Mem. Op. at 35-38 (E.D. Va. May 26, 2015).

On the merits, the district court rejected the challenge to eleven of the twelve districts. Bethune-Hill, Mem. Op. (E.D. Va. Oct. 22, 2015). The plaintiffs appealed to the U.S. Supreme Court, which issued an opinion on March 1, 2017.

The Court held that the three-judge federal district court applied the wrong standard with regard to establishing racial predominance. The lower court held that an “actual conflict between the enacted plan and the traditional redistricting principles” had to be established by the plaintiffs to prove racial predominance. The court would then look to district lines that appeared to deviate from traditional criteria to ascertain whether these deviations were because of racial motivations. The Supreme Court held that this threshold standard of predominance was incorrect. The Court reasserted the controlling standard established in Miller v. Johnson, 515 U.S. 900, 916 (1995), that challengers may show predominance “either through circumstantial evidence of a district’s shape and demographics or more direct evidence going to legislative purpose.” What is crucial when evaluating predominance is the actual considerations of the legislature for drawing the district lines, not an after-the-fact evaluation of what appears to be district lines that deviate from traditional criteria. The court’s ruling allows the challenge of districts that appear to follow traditional redistricting principles at first glance, but can be shown to have race as the predominant factor. Intent of the legislature is crucial. If evidence is shown that the general assembly intended to draw districts based upon racial preferences, then the maps can be rejected. Relevant evidence is not just evidence showing that the districts deviate from traditional principles, but also includes circumstantial evidence that goes towards proving intent. Just because a district doesn’t look weird does not mean it’s not in violation of the Equal Protection Clause.

The Court remanded the case to the district court. A three-day bench trial was set to begin October 10, 2017. Bethune-Hill, Order (E.D. Va. Aug. 28, 2017).

On June 26, 2018, the district court ruled that plaintiffs had shown by direct and circumstantial evidence that race had predominated over traditional districting factors in drawing each of the 11 districts and that defendants and intervenors had not satisfied their burden to show that the legislature’s use of race was narrowly tailored to achieve the compelling state interest of complying with § 5 of the Voting Rights Act. Mem. Op. (E.D. Va.).

The court found that the legislature had employed a mandatory 55% BVAP floor in constructing all the challenged districts. It found that, in general, the challenged districts were underpopulated and adjacent territory whose population was available be added tended to have a higher percentage of white population. It found the legislature carefully selected VTDs and census blocks with a higher BVAP%, and ignored county and municipal boundaries, when necessary to reach the 55% BVAP floor. It found that the racial disparities in population movement and the splits of counties, municipalities, and VTDs along racial lines were strong evidence of racial predominance in drawing the challenged districts.

The court found that the legislature had not performed a functional assessment any of the 11 districts to determine whether a 55% BVAP was necessary in order to allow black voters in that district to elect a candidate of their choice and thus avoid retrogression under § 5 of the Voting Rights Act. It found that expert testimony at trial proved that a 55% BVAP was not required in any of them for black voters to be able to elect their preferred candidate, so it was not required to avoid retrogression under § 5.

The Virginia House of Delegates and the Speaker of the Virginia House, who had intervened as defendants in the district court, appealed its decision to the Supreme Court. Jurisdictional Statement, No. 18-281 (U.S. Sept. 4, 2018). Oral argument on the appeal was heard March 18, 2019.

The district court, having determined that the House of Delegates did not intend to redraw the invalidated districts, appointed Professor Bernard Grofman as a special master to do so. Order (E.D. Va. Oct. 18, 2018). On December 7, 2018, he submitted to the court a Report of the Special Master containing illustrative maps from which the court might select a plan for the new districts or give him further direction in doing so.

The application of the House of Delegates and the speaker for an emergency stay of the district court’s proceedings pending appeal, No. 18A629 (U.S. Dec. 13, 2018), was denied. Order (U.S. Jan. 8, 2019).

After briefing, a hearing, and corrections to the Special Master’s report, the district court adopted his Final Remedial Plan and ordered it to be used for the House of Delegates election in 2019. Mem. Op. (E.D. Va. Feb. 14, 2019).

The House of Delegates and the Speaker of the House challenged the districts in the remedial plan as racial gerrymanders. Jurisdictional Statement, No. 18-1134 (U.S. Feb. 27, 2019)

 

Vesilind v. Va. State Bd. of Elections, No. CL15-03886 (Cir. Ct. City of Richmond Mar. 31, 2017), aff’d No. 170697 (Va. May 31, 2018)

Challengers filed suit in state court alleging that six Senate and five House districts were not as compact as the Virginia Constitution requires. Legislative members, staff, and consultants were subpoenaed to testify about their role in the redistricting process. They claimed legislative privilege. The defendants first requested the court to quash the discovery requests and subpoenas relating to the redistricting process, but then consented to be found in contempt of the trial court’s order compelling discovery from some of the members, staff, and consultants in order to facilitate an appeal of the order to the Virginia Supreme Court.

On appeal of the contempt order, the Virginia Supreme Court found for the defendants because the actions of the members, staff, and consultants fell within the sphere of legitimate legislative activity because they acted as an “alter ego” of the legislator in performing a legislative activity. They were deemed to be functioning in a legislative capacity on behalf of and at the direction of a legislator. Therefore, legislative privilege applied to these communications. Edwards v. Vesilind, No. 160643, 292 Va. 510 (Sept. 15, 2016).

After a trial on the merits of the case, the Circuit Court held in favor of the defendants, ruling against the plaintiffs claim that the alleged districts violated the Virginia Constitution. On October 24, 2017, plaintiffs’ petition for appeal to the Virginia Supreme Court was granted. Vesilind v. Va. State Bd. of Elections, No. 170697. The Supreme Court affirmed. Opinion (Va. May 31, 2018).

 

Washington

WA flagNo major cases.

West Virginia

WV flagNo major legislative cases.

 Wisconsin

WI flag 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. 

Whitford v. Gill, No. 15-cv-421, (W.D. Wis. Nov. 21, 2016), vacated & remanded, No. 16-1161 (U.S. June 18, 2018)

Voters in Wisconsin challenged the Wisconsin Legislature’s State Assembly plan adopted in 2011. Plaintiffs alleged that the Wisconsin Assembly drew the districts with excessive partisan intent, intending to hurt the opposing party. The three-judge federal district court sided with the plaintiffs in a 2-1 ruling.

The court’s opinion considered, without depending on, a new standard: the “efficiency gap.” The efficiency gap is a mathematical metric that calculates how many votes each party wastes compared to the other party. A wasted vote for a party is the number of votes above 50 percent plus one in a district won, and the total votes received by the losing candidate. These totals are compiled for both parties and then compared to each other. If one party has significantly more wasted votes than the other party, then that plan is called into question.

The court came to this conclusion based on Justice Kennedy’s concurrence in Vieth v. Jubelirer, 541 U.S. 267 (2004), in which he opened the door for the possibility that one day, a standard might emerge with regard to judging claims of partisan intent. The federal district court indicated that redistricting plans that “invidiously” minimize the voting strength of political groups may be vulnerable to a constitutional challenge. The court stated, “the First Amendment and the Equal Protection Clause prohibit a redistricting scheme which is intended to 1) place a severe impediment on the effectiveness of the votes of individual citizens on the basis of their political affiliation, 2) has that effect, 3) cannot be justified on other, legitimate legislative grounds.” The efficiency gap is a measure that can help prove this effect.

The court later ordered the Wisconsin Assembly to draft a remedial plan by November 1, 2017. Op. & Order (W.D. Wis. Jan. 27, 2017). The U.S. Supreme Court stayed that order, Gill v. Whitford, No. 16A1149 (U.S. June 19, 2017), and postponed further consideration of its jurisdiction until the hearing on the merits, No. 16-1161 (U.S. June 19, 2017). Oral argument was held October 3, 2017. No. 16-1161.

On June 18, 2018, on a vote of 7-2, the Supreme Court sent the case back to the district court for further proceedings consistent with its opinion that a partisan gerrymandering case alleging vote dilution under the Equal Protection Clause of the Fourteenth Amendment must be considered district by district, rather than statewide. Opinion (U.S. June 18, 2018). Plaintiffs had alleged that Democratic votes had been diluted by packing them into some districts and cracking them among other districts, but plaintiffs had not identified which districts were packed or were cracked and that at least one plaintiff resided in each of the challenged districts. Further, plaintiffs had not sought to prove at trial that they lived in a packed or cracked district or identify the harm to them as individuals.

Concurring with the majority that plaintiffs had not proved standing for an Equal Protection claim, Justice Kagan drew a roadmap for plaintiffs to follow in the district court, both as to how to prove a district-by-district Equal Protection claim and how to prove a statewide First Amendment claim.

To prove a packing and cracking claim, she suggested plaintiffs offer an alternative map, comparably consistent with traditional districting principles, that made their districts less packed or less cracked. She also suggested that plaintiffs offer evidence of Republicans’ partisan intent to dilute Democrats’ votes statewide, which then might be attributed to the drawing of individual districts. If enough districts were challenged successfully, redrawing them might effectively require redrawing the entire state. (Kagan, J., concurring, slip op. at 3-7.)

To prove a First Amendment freedom of association claim, Justice Kagan suggested that plaintiffs might want to include a statewide organization, such as the Democratic Party, and allege that the partisan gerrymander had burdened their ability to affiliate in a political party and carry out the party’s activities and objects, causing it difficulties in fundraising, registering voters, attracting volunteers, generating support from independents, and recruiting candidates to run for office. Because the association and harm to it would be statewide, the standing requirement would be statewide as well. Id. at 8-12.

On return to the district court, the parties agreed to a trial date of April 23-26, 2019, designed to get the case back before the U.S. Supreme Court by October 2019. Preliminary Pretrial Conference Order, No. 15-cv-421 (W.D. Wis. Oct. 17, 2018). However, when the U.S. Supreme Court agreed to hear oral argument on both Rucho v. Common Cause (NC) and Lamone v. Benisek (MD) in March 2019, the district court granted a motion to postpone the trial until July 15, 2019. Op. & Order (Jan. 23, 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.

On July 2, 2019, the district court dismissed the case. Opinion & Order.

Wyoming

AK flagNo major cases.

DC PR MP GU AS VI AL AK AZ AR CA CO CT DE FL GA HI ID IL IN IA KS KY LA ME MD MA MI MN MS MO MT NE NV NH NJ NM NY NC ND OH OK OR PA RI SC SD TN TX UT VT VA WA WV WI WY

USA FlagRedistricting 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.

Alabama

AL flagNo major congressional cases.

Alaska

AK flagNo major congressional cases.

Arkansas

AR flagNo major congressional cases.

Arizona

CO flagUnlike 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. 

California

CA flagNo major congressional cases.

Colorado

CO flagNo major congressional cases.

Connecticut

CT flagNo major congressional cases.

Delaware

DE flagNo major congressional cases.

Florida

FL flagFlorida’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.

Georgia

GA flagNo major congressional cases..

Hawaii

HI flagNo major congressional cases.

Idaho

ID flagNo major congressional cases.

Illinois

IL flagCommittee 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.

Indiana

IN flagNo major congressional cases.

Iowa

FlagNo major congressional cases.

Kansas

KS flagNo major congressional cases.

Kentucky

KY flagNo major congressional cases.

Louisiana

LA flagNo major congressional cases.

Maine

ME flagDesena 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).

Maryland

MD flagOver 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. LamoneNo. 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:

  1. 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;
  2. 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
  3. 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.

Massachusetts

MA flagNo major congressional cases.

Michigan

MI flag

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.

Minnesota

MN flagNo major congressional cases.

Mississippi

MS flagMississippi 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.

Missouri

MO flagNo major cases.

Montana

MT flagNo major cases.

Nebraska

NE flagNo major cases.

Nevada

NV flagNo major cases.

New Hampshire

NH flagNo major congressional cases.

New Jersey

NJ flagNo major cases.

New Mexico

NM flagNo major cases.

New York

NY flagAlthough 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.  

North Carolina

NC flagThe 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. 18-422Oral 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.

South Carolina

SC flagBackus 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.).

North Dakota

ND flagNo major cases.

Ohio

OH flag

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. The stays were granted. No. 18A1165 (U.S. May 24, 2019); No. 18A1166 (U.S. May 24, 2019). 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. ___).

Oklahoma

OK flagNo major cases.

Oregon

OR flagNo major cases.

Pennsylvania

PA flagLeague 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.

Rhode Island

RI flagNo major cases.

South Dakota

SD flagNo major cases.

Tennessee

TN flagNo major congressional cases. 

Texas

TX flagTexas 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-788Doc. 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. PerryDoc. 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. Opinion, No. 17-586.

Legislative and Congressional

Evenwel v. AbbottNo. 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 PerezOrder, 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-788Doc. 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. PerryDoc. 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.

Conclusion

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 ShawId 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. PerezNo. 17-586. It's jurisdictional statement on the state House plan was filed October 27, 2017. Abbott v. PerezNo. 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. 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 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.

Utah

UT flagNo major cases.

Vermont

VT flagNo major cases.

Virginia

VA flagPersonhuballah 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).

 

Washington

WA flagNo major cases.

West Virginia

WV flagTennant 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).

 Wisconsin

WI flag 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. 

Wyoming

WY flagNo major cases.