December 2, 2021

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Lawsuit against Texas GOP’s anti-Latino gerrymanders faces long odds in court

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Ordinarily, the plaintiffs would have an excellent shot at success, but given the ways in which the conservative majority on the Supreme Court has successively dismantled the Voting Rights Act and separate constitutional protections against gerrymanders that intentionally discriminate, they’re likely to face a hostile reception in federal court.

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Furthermore, Republicans in states such as Texas and elsewhere may be operating under the assumption that passing even blatantly discriminatory maps could provide a test case that would allow the court’s new far-right majority to eviscerate existing requirements to draw districts that allow voters of color to elect their chosen candidates. Yet even if the GOP’s districts are struck down, Texas Republicans in particular know from recent experience that they can benefit, perhaps for many years, from illegal maps before any disputes can be adjudicated.

Redistricting

Iowa: Iowa’s nonpartisan Legislative Services Agency has released a second set of congressional and legislative maps after Republican lawmakers rejected the agency’s first batch of proposals earlier this month. However, as redistricting expert Michael McDonald notes, the plans may run afoul of Iowa statutes that call for “reasonably compact districts” that are “square, rectangular, or hexagonal in shape.” Under state law, compactness is measured by comparing a district’s length to its width (with smaller differences being more desirable) and by calculating the length of a district’s perimeter (the shorter the better).

Legal infirmities aside, if Republicans spurn these latest maps, the LSA would produce a third set. However, the legislature would be able to amend those maps freely, allowing the GOP to gerrymander to whatever extent they desire. While compactness and shape requirements might hinder them, Republicans could simply repeal those laws as well.

Illinois: A three-judge federal court ruled on Tuesday that new legislative maps passed by Illinois’ Democratic-run state legislature and signed into law in June prior to the release of 2020 census data are unconstitutional and said it would take over the redistricting process.

The case is a complicated affair that consolidates two separate lawsuits, one brought by Republicans and another by the Latino voting rights group MALDEF. Democrats approved new maps, which were signed by Gov. J.B. Pritzker on June 4, in order to beat a June 30 deadline in the state constitution that, in the absence of new districts, would have transferred authority over redistricting to a bipartisan commission. Crucially, the commission’s tiebreaking member is randomly chosen, with an even chance that the tiebreaker will belong to either party (and thus a 50-50 chance of a Republican gerrymander).

Normally, lawmakers would have had firm census figures with which to draw new maps by April. But thanks to delays caused by the pandemic, the Census Bureau announced earlier this year that new data would not be available until August. Rather than risk handing control to Republicans by blowing the end-of-June deadline, Democrats instead relied on population estimates to draw new maps, allowing them to maintain control over redistricting.

When the bureau at last released 2020 data, those earlier estimates turned out to be far off-base in a number of cases, leading to a deviation of as much as 30% between the smallest and largest districts. Democrats anticipated this, however, and passed a new set of maps correcting these variances, which Pritzker signed in September.

The court ruled, though, that the enactment of the September maps did not render the case moot because lawmakers never actually repealed the June maps (because they feared that doing so would mean they had retroactively failed to meet the June 30 deadline to avoid the commission taking over). The judges held, therefore, that the June maps violated the constitutional principle of “one person, one vote” and could not be used. But the matter did not end there.

Rather than saying the September maps could simply replace the June maps, as lawmakers intended, the court sided with MALDEF and decreed that it would assume control of the redistricting process. (Republicans had wanted the bipartisan commission to draw a new plan, but the judges rejected that request.) The court said it would consider the September maps “as a starting point” but warned that they may “not pass muster” and specifically chastised the legislature for passing them with little public notice or participation.

Plaintiffs will now have the chance to demonstrate that the September maps also violate the constitution or state law, though they face a much higher hurdle than they did with the June maps because, compared to the ease of identifying malapportionment problems, courts are much less likely to acknowledge other sorts of flaws. It’s possible, therefore, that for all of this, the final result will see the September maps, or plans very similar to them, take effect.

Briefing on the matter will conclude by Nov. 18, with the court, which said it’s mindful of the tight timeframe ahead of next year’s elections, likely to rule soon thereafter.

Massachusetts: Massachusetts’ Democratic-run state House has passed a new map for its own chamber with 158 members voting in favor and just one against—a lopsided margin that is one indication that the new lines are an incumbent protection gerrymander designed to insulate members of both parties from challenges, whether in a primary or general election. The plan now goes to the Senate, which recently introduced its own map but has yet to take action on it.

Montana: Montana’s bipartisan redistricting commission whittled down the number of congressional maps it’s considering from nine to two on Thursday, with one proposed by Democrats and the other by Republicans. If no agreement can be reached on how to draw the state’s two districts, the impasse would be resolved by the commission’s tiebreaking member, attorney Maylinn Smith.

Smith said she’d prefer the two sides reach a compromise, and she also criticized both maps for different reasons. However, she also expressed a strong preference that one of the two districts favor neither party, which ultimately ought to incline her toward the Democrats’ plan, since it would establish a western district that’s more competitive than the one put forth by the GOP.

Virginia: Virginia’s bipartisan redistricting commission has all but abandoned work on a new congressional map, likely punting the process to the state Supreme Court—just as it did with the state’s legislative maps earlier this month. While the panel still has until Nov. 8 to finalize a map, the prospect looks remote after commissioners unanimously voted to adjourn indefinitely at a Wednesday meeting.

With the commission’s abdication, responsibility for drawing new maps now falls to the state’s highest court, pursuant to the same constitutional amendment that voters approved last year creating the commission in the first place. While the court will still be bound by the same criteria commissioners were obligated to follow, including a ban on maps that intentionally and unfairly favor a particular party or candidate, conservatives have a majority on the bench. That fact is one among many that some Virginia Democrats cited in opposing the amendment last year.

Though the justices are unlikely to draw any obvious gerrymanders, there are countless subtle ways they could craft maps that tilt toward the GOP—and most of the court’s members in fact owe their jobs to such maps. Virginia is one of just two states (along with South Carolina) where supreme court justices are chosen by a majority vote of both houses of the legislature, and all of the conservatives on the court ascended to the bench thanks to Republican majorities secured through gerrymandered maps.

West Virginia: Republican Gov. Jim Justice has signed off on new maps passed by the GOP-run legislature for Congress and the state legislature itself. While Republicans dominance remains unquestioned in this extremely red state, the state House map underwent significant changes due to a 2018 law mandating that its 20 multi-member districts—which were home to 53 of the chamber’s 100 delegates—be replaced with constituencies that will elect just one member each.

Wisconsin: Republican leaders in Wisconsin’s legislature released new congressional and legislative maps late on Wednesday, all of which are extreme gerrymanders that, according to the nonpartisan site PlanScore, would give the GOP three-quarters of the seats in the House and two-thirds of those in the legislature—despite the fact that Joe Biden carried the state last year. Democratic Gov. Tony Evers immediately threatened to veto the proposals unless Republicans “do better,” but since there’s virtually no way they will, redistricting will head to the courts.

Both parties have long anticipated this development and filed separate lawsuits earlier this year. Republicans are hoping to have the impasse resolved by the state Supreme Court, where a partisan conservative majority usually holds sway. Democrats, meanwhile, believe they can get a more favorable hearing in the federal courts and have brought suit there.

Voting Access Expansions

Congress: As expected, Republicans voted in lockstep to block Senate Democrats from advancing the Freedom to Vote Act by successfully filibustering the start of debate on the bill. Moderate Democrats, particularly Sens. Joe Manchin and Kyrsten Sinema, have so far refused to support curtailing the filibuster rule to overcome GOP opposition, but the vote confirmed that Manchin’s plan to win over 10 Republican senators was always futile. It remains to be seen, however, whether the failure to reach a compromise will finally convince Manchin and other holdouts of the need to defang the filibuster to pass the bill.

As we’ve previously detailed, the Freedom to Vote Act is a sweeping voting rights and election reform bill spearheaded in part by Manchin as a compromise to replace Democrats’ previous proposal, the For the People Act, a separate bill that passed the House earlier this year before also running up against a GOP filibuster in the Senate. The latest legislation prioritizes protecting and expanding voting access; sharply limiting partisan gerrymandering at the congressional level; preventing Republicans from overturning election losses as Donald Trump and his backers attempted to do in 2020; and bolstering campaign finance disclosure laws.

Voter Suppression

Florida: A panel of three judges on the 11th Circuit Court of Appeals has unanimously ruled that voting rights advocates failed to show that Florida Republicans’ 2019 felony disenfranchisement law intentionally discriminated against low-income women of color in violation of the 19th Amendment, which guarantees voting rights for women. That GOP-backed law enacted a de facto poll tax on people who have served their felony convictions by preventing them from voting if they still owe court fines and fees after Florida voters overwhelmingly passed a 2018 ballot initiative to end lifetime felony disenfranchisement for most crimes.

As we have previously detailed, an expert witness for the plaintiffs estimated in 2020 that 775,000 citizens would be unable to pay the poll tax, in large part because Florida levies onerous fines to fund its court system and the state effectively makes it impossible for many voters to even find out the exact amount owed because Florida lacks adequate records. The court noted, for instance, that one county charges a minimum of $668 for a public defender—and $548 even for defendants who forgo one. Furthermore, 43% of the disenfranchised are Black, roughly three times the Black share of the state’s overall adult population.

The 2019 law had incurred multiple legal challenges that resulted in a district court striking down most of the law as unconstitutional, but that decision rejected the plaintiffs’ claim that the law intentionally discriminated against women. Although the full 11th Circuit had overturned that ruling last year and reinstated the poll tax after Republicans appealed, the plaintiffs pursuing the gender discrimination claim had separately appealed the lower court’s rejection of their argument but were ultimately unsuccessful in the latest ruling. Given the conservative tilt of the federal courts, they likely face steep odds of blocking the poll tax if they further appeal.



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