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Redistricting: It’s All Over but the Suing

By Ben Williams  |  September 15, 2022

Lines have been drawn, but that doesn’t mean redistricting is over. One very large step remains: lawsuits.

Redistricting is at least a three-step process. First, states prepare for action by supporting U.S. Census Bureau efforts to ensure a complete count, gathering and scrubbing all relevant and legal data, soliciting public input and learning how to use their line-drawing software. Next, states do the line-drawing itself for the U.S. House and state legislative districts that will be in place for the next 10 years. Finally, the maps are challenged and lawsuits kick in. And that’s where states are now.

No matter how those suits go, however, the likeliest outcome is minimal if any political change on the state level. At the federal level, it might be another story.

Paving the Road: State Redistricting Systems

Any analysis of redistricting must address two questions: Who draws the lines? And what rules, or criteria, govern how those lines are drawn? The U.S. Supreme Court’s one-person, one-vote principle requires states to redraw their legislative and congressional districts after each decennial census. Typically, state lawmakers draw the lines, but some states—15 for legislative districts, 10 for congressional districts—give that power to a commission or board outside the legislature.

The criteria governing redistricting fall into two broad categories: traditional and emerging. Traditional criteria, such as how compact a district’s shape must be or that all parts of a district must be connected to other parts, have been on the books for decades. Emerging criteria are aimed at regulating partisanship in redistricting. Typical examples include requiring districts to be competitive or prohibiting districts from favoring or disfavoring political parties or candidates.

Taken together, who draws the lines and how they’re drawn constitute a state’s redistricting system. No two systems are exactly alike. And with changes enacted between 2010 and 2020, the systems are more varied than ever.

Changes to State Laws Since 2010

State legislatures are the tried-and-true redistricting entity. Given the power to redistrict by the U.S. Constitution, legislatures have held this responsibility since the nation’s founding. Redistricting commissions didn’t even exist until 1956, when Arkansas created its Reapportionment Board. Since then, about two states per decade have shifted redistricting power from the legislature to a commission.

The 2010s were no exception. Colorado and Virginia voters ratified constitutional amendments referred to them by legislators creating redistricting commissions in their respective states; Michigan voters approved a citizen initiative to do the same. New Mexico’s Legislature created a nonbinding commission of citizens to advise in redistricting, though lawmakers retained the final say. Utah voters created a similar advisory commission. The Ohio General Assembly created (and voters approved) new redistricting systems preserving lawmakers’ role while prohibiting partisan gerrymandering and incentivizing bipartisan redistricting.

Each of these states also adopted new criteria, including regulations on partisan gerrymandering and, in some cases, requirements that districts pay closer heed to so-called communities of interest, a term that eludes firm definition but refers to anything that could bind people together. Some examples of communities of interest include residents of factory towns or fishing villages who share economic interests, or rural residents concerned with health care or broadband access.

Changes to Federal Law Since 2010

Two major changes since the last redistricting cycle have shaken up federal redistricting law: U.S. Supreme Court decisions that effectively ended enforcement of Section 5 of the Voting Rights Act and federal oversight in partisan gerrymandering cases.

No change has been larger than the striking down of Section 5 in 2013. In that case, Shelby County v. Holder, the court held that the sections of the Voting Rights Act requiring certain counties and states to receive preclearance for redistricting and election policy changes could no longer be enforced because they violated principles of federalism. In 2020, for the first time in over 50 years, the mostly, but not entirely, Southern states and jurisdictions previously under preclearance could put new maps into action without receiving preapproval from the U.S. attorney general or the U.S. District Court for the District of Columbia. This cycle, all jurisdictions are treated equally under federal law.

Partisan gerrymandering cases dominated in federal courts in the 2010s. With funding from outside groups, a flood of lawsuits were filed in states including Wisconsin, Michigan, Maryland and North Carolina arguing that districts were so skewed toward one party they violated either the equal protection clause or the First Amendment, or both. In 2019 in Rucho v. Common Cause, the Supreme Court held that partisan gerrymandering claims couldn’t be decided in federal courts, shutting down one avenue plaintiffs used to challenge states’ redistricting plans.

You Are Here: Litigation

Litigation in redistricting is so pervasive that most legislators and staffers expect it. In fact, it’s a point of pride in the handful of states that don’t get sued. According to RedistrictingOnline, a nonpartisan website covering redistricting law and policy, over 100 redistricting lawsuits in have been filed so far this cycle, with a handful of states bearing the brunt of the legal onslaught. Some states have fared well. Tennessee’s General Assembly successfully appealed an adverse ruling to the state Supreme Court, ensuring its legislative maps will be in effect for the 2022 elections. Other states, including Ohio, North Carolina and New York, haven’t been as lucky, with maps drawn by legislatures struck down and replaced with judicially selected maps.

More litigation awaits, with appeals of lower court rulings ongoing in Kansas and New Hampshire. And that’s just existing litigation. As the 2010 cycle showed, litigation can continue throughout the decade.

Ben Williams is a program principal in NCSL’s Elections and Redistricting Program.

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