Democrats and Republicans have filed dozens of cases challenging the rules and outcomes of state redistricting processes in recent months, clogging state and federal dockets across the country with hearings and motions.
Those suits have been filed even before legislatures or independent commissions approve district lines, presaging what is likely to be years of litigation between the two sides.
Only one state, Illinois, has finished crafting the maps that will be in effect for the next decade. In what is likely a preview of virtually every other state, the minority party — in this case, Republicans — filed suit to challenge those boundaries.
“I do expect that nearly every map that gets passed this cycle is going to be challenged by somebody,” said Jason Torchinsky, an election law specialist and general counsel for the National Republican Redistricting Trust.
Many of the cases that are already pending seek to prepare courts for lawsuits to come as both sides lay legal groundwork. That task is becoming more pressing because the timeframe in which maps are redrawn has been compressed this cycle: The U.S. Census Bureau delivered redistricting data to states only in August, months behind initial schedule, because of delays caused by the coronavirus pandemic and the Trump administration.
“The timing has been affected by the Census Bureau’s release of data in August, which is approximately six months later than the traditional timeline,” said Kathay Feng, national redistricting director at Common Cause. “You have a few more courts that are willing to entertain a calendar for when briefs are due because they know they’re up against a tight timeline.”
Marc Elias, the Democratic election lawyer behind many of the suits, has asked courts in Wisconsin, Pennsylvania, Minnesota and Louisiana to prepare to draw maps in the event that state Democrats and Republicans cannot reach agreement on map lines.
Each side is effectively court-shopping, in hopes of finding a judge or panel of judges that might be the most sympathetic. In Wisconsin, Elias filed suit in federal court; Republicans filed their own suit in state court, hoping to wind up before a state Supreme Court stacked with conservative justices. In Pennsylvania, where Democratic-leaning justices hold a majority on the state Supreme Court, Elias went to state court.
“There is a strategic calculation where some states elect their state supreme courts on a partisan basis,” said Helen Brewer, a legal analyst at the nonpartisan Princeton Gerrymandering Project. “Whether that’s ideal or not, that’s what’s going into the decision making process.”
Other suits seek permission to deal with the more pressing concerns of a compressed calendar caused by the Census Bureau’s delay. Courts in Colorado, Hawaii, Michigan, Maine and Oregon have been asked to extend the deadlines by which their states must adopt new boundaries.
And several suits seek to clarify more arcane elements of the redistricting process. Virginia’s Supreme Court ruled on Wednesday that the state’s new independent redistricting commission must count prison inmates at their last known addresses, rather than at the correctional facility in which they are incarcerated.
The decennial redistricting process is always a magnet for legal challenges, though this decade is likely to represent a different sort of test. The U.S. Supreme Court in recent years has struck down many of the guardrails that once hemmed in legislatures, including sections of the Voting Rights Act. A more recent case effectively barred federal courts from weighing in on questions of partisan gerrymandering, forcing those suits into state courts.
“Legislatures feel unbridled in what they’re allowed to do,” Feng said. “There were more legal constraints in past redistricting processes that have been eroded by court decisions and that sense that states can now engage in redistricting with far fewer legal constraints has allowed some to engage in very brazen gerrymandering.”
Torchinsky, the Republican attorney, said lawsuits over district lines and the process itself can represent a no-lose situation for a minority party in any state. If a majority party forces through a map that puts the minority at a disadvantage, the worst that can happen to a minority party in a lawsuit is maintaining the status quo — and the best that can happen is a much more favorable map.
“The Democrats have no incentive not to challenge any Republican-passed map, and the Republicans have no incentive not to challenge the Democrat-passed map, and whoever’s ox feels gored by a commission has no incentive not to challenge it,” he said. “The incentive is, whoever feels like they’re on the losing side should sue.”