Democratic Race-Focused Redistricting Started the Voting Map Race

A common misconception is that our current redistricting war began when Texas chose to redistrict. But this fight has been brewing for a long time.

And it has culminated because Republicans are trying to defend their House majority rather than allow Democrats to pursue a national litigation strategy to win the majority in the next Congress.

In the coming years, it will be Democrats’ own drive for race-based gerrymandering and litigation that will bring legal troubles to their door.

The courts have long contended with issues of race in redistricting and how to clearly articulate how states can navigate the twin pillars of liability: the Constitution and the Voting Rights Act.

On one side, the Constitution prohibits race-predominance in redistricting. On the other side, the Voting Rights Act requires legislatures to create race-based districts when a series of criteria are met. That tug-of-war has created a relentless churn of litigation.

At least six states have, or soon will have, redistricting cases before the US Supreme Court. North Dakota, Mississippi, and Alabama already have asked the justices to weigh in on whether private plaintiffs have a right of action to bring litigation under Section 2 of the Voting Rights Act, which prohibits any voting law or practice that discriminates based on race, color, or membership in a language minority group.

Each case arose from litigation filed by Democrat-aligned groups to create new race-based congressional districts.

A pair of under-the-radar cases out of Washington state also will reach the high court soon where, in full disclosure, I am counsel. We want the justices to consider whether a finding of vote dilution under the Voting Rights Act can be remedied by reducing that minority group’s share of the district population and if such a finding and remedy moots a constitutional racial gerrymandering claim.

Louisiana continues to wait for the Supreme Court to settle Louisiana v. Callais, a potentially landmark case on whether the state’s creation of a second majority-minority district violated the 14th or 15th Amendments. Many court observers believe the Supreme Court will use Callais to overhaul the legal landscape around cases involving Section 2 cases.

Like its sister states, Louisiana’s legal predicament is the latest in a series of lawsuits originating in 2022 when multiple groups of Democrat-aligned plaintiffs brought lawsuits against its congressional and legislative maps following the 2020 census. Litigation over Louisiana’s legislative maps is being held by the en banc US Court of Appeals for the Fifth Circuit pending the outcome of Callais.

A new escalation in this fight came a few weeks ago in New York. A group of plaintiffs filed a lawsuit in state court attempting to invalidate its congressional districts by finding that the districts were unconstitutionally racially gerrymandered under the state constitution.

New York’s constitution, in the plaintiffs’ view, requires the creation of “coalition districts” which are composed of a group of various minority groups to constitute a majority of a district in aggregate. This would amount to unconstitutional racial gerrymandering under the Constitution.

Democrats, by attempting to create a new blue seat in New York, inadvertently may have put all state Voting Rights Acts and other racial redistricting mandates in state constitutions squarely on a path to the Supreme Court.

The court’s recent opinion in Abbott v. League of United Latin American Citizens, which also originated from several organizations bringing forth race-based claims, applied its own precedents to overturn an opinion from the US District Court for the Western District of Texas. Those precedents included Alexander v. South Carolina State Conference of the NAACP, which clarified the need for courts to disentangle race and politics when considering racial gerrymandering claims.

Alexander reiterated that state legislatures are entitled to a presumption that they acted in good faith when redistricting and that plaintiffs are required to produce an alternative map that meets a state’s political objectives without achieving any alleged racial objectives. The trial court in Abbott, like the trial court in Alexander, had failed on both counts. If there was any remaining doubt that the Supreme Court meant what it said in Alexander, then Abbott dispelled it.

Democrats also have a California problem. This past summer, Gov. Gavin Newsom (D) and California Democrats passed a new congressional map and related election changes in response to Texas’ redistricting move. Newsom then asked voters to approve a constitutional amendment to make what they had done legal.

Voters approved the measure by comfortable margins. These actions would appear to suggest that politics predominated in enacting California’s new congressional map. But did it?

A complaint filed in federal district court alleges that the man behind California’s map, Paul Mitchell, appeared on a webinar shortly before election day. He said that the first thing he did was create a new majority-Latino district in Los Angeles.

Republicans quickly sued to challenge the map, asking: Does voter approval insulate a map from charges of racial gerrymandering, even if the voters didn’t know ahead of time it was a race-based draw? Is it enough to simply mingle in partisan rationale for a redistricting effort with demographic rationale to guard a map from racial gerrymandering claims, even if the map drawer admitted to prioritizing race?

Those kinds of questions likely will go before the Supreme Court soon.

If Democrats and their allies continue to draw maps predominantly using race and ethnicity data and continue to litigate for more race-based redistricting via state constitutional claims, then federal courts will have to step in to end considerations of race in redistricting. Americans should no longer be divided along racial lines.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law, Bloomberg Tax, and Bloomberg Government, or its owners.

Author Information

Jason Torchinsky is a partner at Holtzman Vogel, specializing in campaign finance, government ethics laws, election law, lobbying disclosure, and issue advocacy groups.

Write for Us: Author Guidelines