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Election-Map Challenges to Test Fine Line Between Race, Politics

Aug. 18, 2021, 8:44 AM

State legislators’ redrawing of electoral maps after each Census to secure as many seats as possible for the party in power is almost as old as the U.S. itself.

But the effort that began last week after the release of the latest population data will be different, as the first since Supreme Court decisions that the U.S. Department of Justice no longer has the right to vet the new maps, and that partisan gerrymandering claims aren’t subject to federal court review.

With the Census data showing that population growth since 2010 has been largely driven by minorities, particularly Hispanics, election lawyers and watchdogs say they’re watching for so-called racial packing. That’s when large numbers of minority voters are drawn into sometimes bizarrely-shaped districts to make the population of others predominantly white.

But the line between gerrymandering based on creating partisan advantage, which is legal, and based on race, which is not, isn’t easy to draw.

“The Supreme Court has created a problem by having this line where if it’s racial discrimination, it’s off-limits, but if it’s partisan discrimination, it’s okay,” said Michael Li, the senior counsel for the Brennan Center’s Democracy Program.

“The problem in places like the South is that there’s a strong alignment between party and race. Now, Republican lawmakers can simply claim that they’re discriminating against Democrats rather than Black and Latino voters. And the fact that those Democrats that they’re discriminating against happen to mostly be Black and Latino, in the view of Republicans, they can argue that it’s just a happenstance.”

Republicans currently have the final authority to redraw 187 districts compared with 75 for Democrats, who currently control the House. Commissions and states with partisan splits draw the rest.

“In the last go-round, we saw a number of instances where [Republicans] were giving up voters into districts based on race as the predominant factor,” said Marc Elias, a top Democratic voting-rights lawyer with Perkins Coie.

“So, the clear message to Republican legislatures is that if you engage in unconstitutional map drawing, you will be sued and you will lose.”

Wisconsin Lawsuit

Mapmakers must legally stay within the guidelines of the Voting Rights Act and the equal protection clause under the Fourteenth Amendment. By law, each electoral district must also have similar populations, also known as population deviation.

“We look at whether the population deviations are permissible or not and [whether] congressional plans have a difference in the size of districts,” said Jeffrey M. Wice, a professor at New York Law School who focuses on redistricting, voting rights, and census law.

“Congressional plans can be challenged if the district doesn’t equal each other across the state in population.”

That has already prompted a lawsuit by Wisconsin Democrats. They filed their suit one day after the Census data was issued, asking a federal court to not only rule that the state’s current maps are unconstitutional but to be prepared to draw a new map itself because the state’s Democratic governor and Republican legislature aren’t likely to agree on one.

The request centers around the fact that the new Census data showed that the state’s population has significantly shifted since 2010—rendering the current plans inequitable, or malapportioned, Elias said.

VIDEO: We talk to former U.S. Attorney General Eric Holder and Loyola Law School Professor Justin Levitt about the long history of the fight over who draws the maps.

Pushing the Limit

The Wisconsin case isn’t based specifically on race, however. Showing discrimination within redistricting became more difficult after a 2019 Supreme Court ruling that said partisan gerrymandering claims aren’t subject to federal court review,

That followed the 2013 Supreme Court decision in Shelby County v. Holderending the U.S. Department of Justice’s vetting process for new maps, known as pre-clearance.

Claims can still be made under Section 2 under the Voting Rights Act, which prohibits states from diluting the voting power of politically cohesive, geographically compact minority groups in areas where white majorities have a history of voting as a bloc to defeat minority-supported candidates.

But those cases “may not move fast enough” to prevent 2022 elections “under maps that are packing minority voters,” said Adam Podowitz-Thomas, senior legal strategist for the Princeton Gerrymandering Project and the Princeton Electoral Innovation Lab.

Racial Gerrymandering History

Litigation around racial gerrymandering is not a new concept, going back decades.

But the most recent notable type of cases came out of Virginia and North Carolina.

In 2019, the Supreme Court found 11 state House districts in Virginia weakened the influence of Black voters and violated the equal protection clause of the 14th Amendment.

In 2018, the Supreme Court found in North Carolina that the state’s 1st and 12th districts were unconstitutional because race was a “predominant factor” in redrawing their boundaries—affirming a lower court decision from 2016.

Those cases clarified the standard for bringing racial gerrymandering cases and showed the Supreme Court was receptive to them, Elias said.

But the most difficult part about proving racial gerrymandering in court is that there is no clear standard for what partisan gerrymandering is, redistricting lawyers have said. Therefore, there’s no clear way to separate partisan gerrymandering from line-drawing based on race, the Harvard Law Review said in a 2017 article.

The Justice Department’s assistant attorney general for the Civil Rights Division, Kristen Clarke, has said she intends to reinvigorate federal voting rights litigation.

“The Biden administration, so far, has signaled a real interest in bringing these types of lawsuits. They’ve got folks at the head of the agency that really know voting rights, [such as] Vanita Gupta and Kristen Clarke, so it’s pretty clear that they’re going to be bringing a lot of litigation kind of immediately once maps start getting dropped,” Podowitz-Thomas said.

To contact the reporter on this story: Ayanna Alexander in Washington at aalexander@bloomberglaw.com

To contact the editors responsible for this story: Bernie Kohn at bkohn@bloomberglaw.com; Andrew Childers at achilders@bloomberglaw.com