Before redistricting even begins, prepare for the lawsuits after it ends.
That message came from a panel of attorneys specializing in election law to the 450 legislators, staff, redistricting commissioners and other stakeholders at NCSL’s redistricting seminar on Thursday, along with another warning:
Buckle up—it’s going to get bumpy.
“What you see going on outside of the courtroom as far as political tenor, partisan heat, the temperature of what’s going on in the country—that’s what’s being brought into the courtroom,” said Kate McKnight, a partner at the BakerHostetler law firm in Washington, D.C. “These cases have moved very quickly. There’s a real sense of time pressure and almost an understanding of what the ending should be like, and there’s a rush to that ending. It’s going to come fast and furious.”
So watch your mouth. And your email.
“I will always talk about email hygiene. Please,” McKnight said. “If you can meet with someone in person, do that. If you can’t do that, call them. If you absolutely must, send them an email (that says): ‘Call me.’”
Emails, she said, “will be dissected, misunderstood, twisted and played against you in court, and you’ll be brought in. Not only will you be deposed, but you’ll be on the stand at some point. Keep that in mind.”
The panelists for NCSL’s latest redistricting seminar were, from left, Kate McKnight, with the BakerHostetler law firm; John Yang, with Asian Americans Advancing Justice; and Frank Strigari, chief legal counsel for the Ohio Senate.
Keep It Confidential
In Ohio, a state with a history of redistricting litigation going back at least 80 years, confidentiality is front and center, said Frank Strigari, chief legal counsel for the Ohio Senate. “Just be very cognizant of the idea that whatever it is you are putting in writing or talking about amongst (yourselves), that you either want it to be something everyone knows about, or you have to assume it’s something that everyone is going to find out about. Just be careful.”
Just as important as the records you don’t keep are the ones that you do, the attorneys said.
“Part of it is also about making sure the public is served by the record that’s out there,” said John Yang, president and executive director of Asian Americans Advancing Justice. “Making sure that we’re all able to see what you considered in creating the maps that you did, and whether you were looking out for different communities, and being sure that is in your mind as you’re creating those maps.”
“The record you develop matters,” McKnight agreed. “It matters for every single district, and you’re going to want to have that at the end of the redistricting process to make sure you can support why you drew districts the way you did.”
She recalled a client who talked to every state legislator to understand what was going on in their districts. But even someone acting in good faith can be tripped up by one ill-advised email or text, she said.
McKnight urged legislators to build records based on solid analyses such as an examination of “polarized voting”—which happens when a racial majority votes with sufficient cohesion to defeat a racial minority’s candidate of choice—before they create their maps.
“It’s a form of analysis that experts do in Voting Rights Act cases and in equal protection cases. And it’s a very important piece of analysis,” she said. “You need to have an understanding of minority voting patterns before you can figure out what district needs to be drawn.”
These numbers matter in court, McKnight said. “The courts care about what percentages were you using, what does the analysis show? You can see how once you get into court and you have iffy data, and you’re not sure what’s going to happen, I can assure you there will be lawsuits, there will be data fights.”
So how should the process go?
“I would think you would want map drawing to happen under a certain amount of control,” McKnight said. “You’d want there to be a few people, you’d want there to be public hearings, want there to be meetings with legislators, and you’d want to have some basis for why you are drawing a district a certain way.”
She said she had a case where a district was challenged and a claim made that a line was drawn in a way that was racially motivated.
“We had evidence in the record that, no, that’s where the legislator’s mom lives, and he wanted to make sure she was in his district,” McKnight said. “That happens all the time. There are decisions made in map drawing that are related to something unique or specific to that district. So, when I talk about ‘record,’ I don’t necessarily mean a written piece of paper that says everything was drawn in this way. But I would consider having some form of written record of the attributes of the district.”
Lay out goals for each district, McKnight suggested. Examples might be retaining the core of a district—giving the voters who elected the officials a chance to vote them out—or adding voters to a district that has been shedding residents. Another might be retaining suburban voters in a district where they have more in common with each other, rather than dipping into urban areas to expand it.
“If you get in the process, you’ll see you have driving factors with every district,” McKnight said. “A lot of redistricters, it would behoove them to have some record like that, where you talk about, ‘These were the challenges we faced. This is how we addressed them.’”
Lisa Ryckman is NCSL’s associate director of communications.