By Ben Williams
Phoenix—The 2010s have been an active decade for redistricting litigation.
Almost nine years since the 2010 census data was delivered to the states, litigation against district plans continues in multiple states.
At the NCSL Capitol Forum, two attorneys discussed recent changes in the law and trends to watch in the future: Representative Douglas House (R-Ark.) and Sam Hirsh of Jenner & Block LLP. Rather than analyzing individual cases, the conversation centered on legal themes legislators will face, shining light on what is to come. Four of these themes are listed below:
Use of race in redistricting. Hirsch noted that recent court opinions have enhanced the tension between racial rules grounded in the Equal Protection Clause and the mandates of the Voting Rights Act. He said the recent U.S. Supreme Court opinion holding that federal courts could not decide partisan gerrymandering cases might well lead to an increase in racial gerrymandering cases, particularly since the two issues can be related.
How recent U.S. Supreme Court trends could impact the Voting Rights Act. In 2013, the Supreme Court declared that Section 5 of the Voting Rights Act, which required that certain jurisdictions must receive federal approval for changes to their voting and redistricting laws, could no longer be applied to any states or localities. The 2020 redistricting cycle will be the first since the 1960s without Section 5. House noted that if the Supreme Court also struck down Section 2 of the Voting Rights Act—the only remaining way for plaintiffs to sue under the act in federal courts—that the 15th Amendment could be used to litigate cases alleging that districting plans dilute the votes of minority groups. However, that standard—unlike Section 2—requires that plaintiffs prove both discriminatory intent and effect, rather than merely effect.
Potential federal intervention in redistricting. Hirsch noted that Congress could pass new laws regulating redistricting, particularly if Democrats gain unified control of the federal government. This could include mandating that congressional districting be carried out by so-called “independent” commissions, or a reauthorization of the Voting Rights Act to reinstate the applicability of Section 5.
Increased litigation in the next decade. House said he expected the following decade to see increased litigation regarding the scope of legislative privilege. Relatedly, he predicted that there will be more lawsuits around sunshine and openness laws—particularly in states that have rules relating to public redistricting hearings. He also said he expects an increase in the total volume of litigation next decade because of the wide availability of free, online redistricting software.
To help prepare legislators and legislative staff for this once-a-decade task, NCSL is hosting a series of seminars on all facets of the redistricting process. The seminars will cover a wide variety of topics, including law, data and software. Questions about these seminars can be directed to Ben Williams.
Ben Williams is a policy specialist in NCSL's Elections and Redistricting Program.