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More Than Ever, Redistricting Is Under a Microscope

By Mark Wolf | Feb. 10, 2021 | State Legislatures Magazine

Redistricting is no longer the wonky wallflower nobody wants to take to the public policy prom.

“What used to be done in the proverbial smoke-filled room is now out in the sunshine,” Jeff Wice, special counsel to the New York State Assembly, said in a session on redistricting during NCSL’s State Policy 101 series.

“What we’re seeing now is redistricting under a microscope. I’ve never seen as much press attention, civic groups interested, public involvement,” said Wice, who is embarking on his fifth decade of redistricting.

For the first time, more than half the states have a commission as part of their redistricting process, NCSL Policy Specialist Ben Williams told the session. Their duties run the gamut, he said, from drawing lines to being advisors.

All told, more people than ever are looking over legislators’ shoulders as they take a scalpel to their states.

Public input in the age of COVID can mean a move from cramped legislative conference rooms to virtual spaces, Williams said.

Several states have created online portals where the public can log on, create an account and submit a map. Free online redistricting tools, such as Dave’s Redistricting, allow users to draw lines for an entire state and submit the plan via email to the legislature.

“Oklahoma created a legislative email address strictly for submitting maps,” Williams said.

What’s Different This Time

Williams and Wendy Underhill, NCSL’s director of elections and redistricting, sorted through some of the high notes of redistricting policy, including:

“The census matters a huge amount,” Underhill said. “It tended to be a sleepy topic in previous decades but this time it’s hot.”

And the data is delayed, largely because the COVID-19 pandemic kept the U.S. Census Bureau from getting workers into the field. Apportionment data, usually ready by Jan. 1, now has a target delivery date of April 30. The granular data actually used in redistricting software, normally delivered by April 1, has been delayed until at least July 30.

Underhill advised seeking out your state demographer for input on where the population is shifting even before the data arrives to get an idea which districts will need to be smaller or larger.

Prisoner reallocation will be an issue for some states. “The Census Bureau counts people where they sleep and for some that’s prison,” Underhill said. “Some states decided that’s not where they want that person to be counted, so they take the data and put it back to their previous home address.”

The one-person, one-vote rule remains the foundation of redistricting, especially at the federal level.

“One person, one vote means exact numerical equality on congressional districts so you need to get it down to a person,” Williams said. “Any deviation requires a legitimate state interest that a state can articulate in court if they are sued.”

Communities of interest are important. Underhill said they could be neighborhoods, a community, or an area where economic or social interests are important, such as Native American communities.

A new trend may be appearing in partisan redistricting lawsuits.

The U.S. Supreme Court ruled 5-4 in Rucho v. Common Cause in 2019 that partisan redistricting cases were beyond its jurisdiction but that state courts were an effective way to redress partisanship. A Pennsylvania Supreme Court decision threw out the state’s congressional districting maps because excessive partisanship violated the state’s constitutional requirement for free and equal elections.

What’s interesting about that, said Williams, is that the Supreme Court’s doctrine, when a state supreme court is interpreting a state’s own constitution, without involving federal rules or guidelines, says the loser can’t appeal to the U.S. Supreme Court. Twenty-nine states have similar “free and fair” elections clauses in their constitutions.

Lawsuits Looming

And how likely are states to be sued over redistricting?

“Very likely,” said Frank Strigari, chief legal counsel for the Ohio Senate. “In Ohio there has been a lawsuit for the past six decades.”

When states defend their redistricting, it’s important to know courts have been willing to limit legislative privilege, said Michelle Davis, senior policy analyst for the Maryland Department of Legislative Services.

“The trend is that judges have limited its scope. A lot of things you might have thought might be covered, like email, you have to consider they won’t be covered,” she said.

Strigari concurred. “The privilege issue is very significant,” he said. “You should be putting thoughts in writing that are official and will always be looked at for 10-20 years. Don’t crack jokes or use terminology you wouldn’t want someone to see in the future, even if it’s taken out of context. Be careful what you put in writing, what you say in public, what you say in committees. Stick to the rules that govern an open and fair process.”

And some closing advice from redistricting veteran Wice:

“Expect the unexpected.”

Mark Wolf edits the NCSL Blog.

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