States are in the thick of redistricting—and the U.S. Department of Justice is watching.
“Our review of (redistricting) maps will be thorough, fair and fact-based,” U.S. Assistant Attorney General Kristen Clarke told a session at the 2021 NCSL Legislative Summit.
“As state legislators, you are standing on the front lines of crafting the rules for how our democracy operates,” she said. “Those rules involve everything from voter registration systems to how voters cast their ballots—whether that means early voting, vote by mail and traditional Election Day voting at a polling site—to the way in which post-election litigation is conducted.”
Having a redistricting process that is open to the public … promotes the kind of public involvement we want to see in this very important aspect of the democratic process. —U.S. Assistant Attorney General Kristen Clarke
There are some important constraints in federal law, Clarke said. The U.S. Constitution requires state legislative districts to be drawn with nearly equal populations: “One person, one vote.” Section 2 of the Voting Rights Act prohibits discrimination in voting because of race, color or language spoken. It prohibits drawing districts in a way that results in voters not having an equal opportunity to elect representatives of their choice because of race, color or language minority status. It also prohibits any law or procedure that intends to disadvantage voters based on those factors.
“Our efforts to evaluate compliance with Section 2 and to identify potential violations have a very broad scope,” Clarke said. “(But) our analysis is intensely localized insofar as it looks at the particular facts in each jurisdiction.”
States need to take the Voting Rights Act requirements into account when drawing redistricting maps, Clarke said, and remember that the 14th Amendment prohibits substantial disparities in total population between electoral districts as well as certain forms of racial gerrymandering in drawing districts.
Clarke praised efforts to bring the public into the process. “Having a redistricting process that is open to the public, for example through an internet portal and public hearings where the public can see and evaluate the redistricting plans being considered, as well as assuring they have an opportunity to comment, promotes the kind of public involvement we want to see in this very important aspect of the democratic process,” she said.
“We hope that you will produce plans that give citizens a full, fair and equal opportunity to participate in the political process and elect representatives of their choice,” Clarke said.
Voting Rights Act Enforcement
She said the Justice Department supports the John Lewis Voting Rights Advancement Act currently before the Senate, which would restore the department’s ability to conduct federal review—also known as preclearance—of redistricting maps and changes to voting processes in some districts before they go into effect. From 1982 to 2006, when preclearance was in place, the department blocked more than 3,000 discriminatory voting changes, Clarke said. The Supreme Court struck down the coverage formula for preclearance in 2013; the John Lewis Act would create a new formula.
A panel of redistricting experts and legislators weighed in on Clarke’s description of the Justice Department’s oversight plans.
“The question going forward is, are we going to continue with a traditional enforcement of Section 2, or are we now looking at a more partisan enforcement?” said Dale Oldham, former redistricting counsel for the Republican National Committee. “Are we going to enforce it in a way that is going to be designed to create representation for minorities, allow minorities to elect minority candidates? Or are we going to be looking at a partisan enforcement scheme? That’s a story yet to be told.”
Jeffrey Wice, special counsel to the New York State Legislature, said it’s difficult to extract partisanship from the redistricting process.
“Redistricting is often called the blood sport of American politics, and we’re not ever going to really take the politics out of the process unless you go the route of California and Arizona to create completely independent redistricting committees outside of the legislature,” he said.
Even that path doesn’t always work, Wice said, noting that bipartisan commissions in Ohio and Virginia failed to agree on plans this year and subsequently left map drawing to other entities.
Getting the Public Involved
“My message is, conduct an open, transparent redistricting process with public participation,” Wice said. “Don’t try to cut any corners to speed things up. If you have a hearing, schedule it at a convenient time and let it go until people (have spoken).
“It’s my hope that we don’t see the kind of overreaching in states that we saw to a degree from both parties in the last decade but have a much more fair, equitable process where districts are drawn and follow where people live,” he said
Minnesota Senator Mary Kiffmeyer (R) said she was heartened by Clarke’s assurance that the Justice Department would be measured in its approach.
“It’s going to be a pretty wild ride, especially because of the census data not being released until August,” said Kiffmeyer, who is a former Minnesota secretary of state. “That has made it incredibly difficult if not impossible for some legislatures to even do their redistricting, such as Minnesota, because our session was concluded at the end of June.”
The thing that hurts people the most is uncertainty, Kiffmeyer said. “I’ve had such sympathy for the regular folks out there, who have no clue, and all of a sudden, their districts, who represents them, and boundaries are all turned upside down.”
Vermont Representative Sarah Copeland Hanzas (D) agreed the redistricting timeline is intense, leading to stress and uncertainty. That’s all the more reason to ensure the process is open and fair, she said.
“One of the most foundational principles of our democracy is that the voters get to choose their leaders—not the other way around,” Hanzas said. “We need to build fair maps, call balls and strikes like an umpire would and not put our fingers on the scale.”
Lisa Ryckman is an associate director in NCSL’s Communications Division.