The 2011 holiday season brought plenty of election-related tidings, of comfort and joy to some and consternation to others. Now, in the first days of 2012, it's useful to take stock of our democratic infrastructure -- and particularly, since we're in the thick of the redistricting cycle, to gauge our national progress in drawing the lines that will determine representation for the next ten years (or until Texas decides to re-redraw its lines, once again).
First, a recap of the numbers. 428 congressional districts, in 43 states, must be redrawn (seven states have one Representative apiece); 7,382 state legislative districts (and hundreds of thousands of local districts) must also be adjusted. Democrats unilaterally control the redistricting process for 44 congressional seats (6 states) and 885 state legislative seats (8 states); Republicans unilaterally control redistricting for 210 congressional seats (18 states) and 2,498 state legislative seats (21 states). The others were subject to some sort of divided control.
In all of this activity, there are more than a few developments of note. Here is my list of the 12 gifts of the holiday season for redistricting lawyers, likely to have an impact on 2012 and beyond:
- Looking to the courts. Every 10 years, redistricting litigation joins death and taxes as one of life's certainties. 113 casesimpacting federal or statewide redistricting have been filed so far this cycle, in 31 different states -- with 26 new cases in November and December alone. That's not yet a record: Based on the excellent resources compiled by NCSL, there were at least 149 cases (40 states) filed in the 2000s, and 150 cases (41 states) filed in the 1990s. But the litigation life cycle is far from over, for cases new and old. In Arizona, a complaint was filed on March 6, 2002 -- together with, ironically, a motion for expedited consideration. The case was closed more than seven years later.
- Looking to the courts II. Courts don't just weigh in on existing plans. In five states so far -- all with the legislature in charge of redistricting and all with split partisan control -- the legislative process failed to produce a map; in Connecticut, both the legislative process and a special backup commission couldn't get the job done. In order to have a map in place for elections to go forward, courts took over. Only two states with split legislative control -- New York and Kentucky -- still have to try to sort out maps, but court action may not be far on the horizon.
- Looking to the courts III. Eleven states have thus far sought preclearance for statewide redistricting plans under section 5 of the Voting Rights Act. The provision requires federal approval of new election laws in areas of historical disenfranchisement, to ensure that new laws don't dilute the political power of racial and ethnic minorities. Normally, submissions go to the Department of Justice, which has a special administrative process to handle claims in a hurry. In fact, of the 1,046 other redistricting preclearance submissions so far this cycle, overwhelmingly from smaller jurisdictions, 1,043 went only to the DOJ. But six states also sent their redistricting plans to a D.C. federal court, with a much more cumbersome trial process applying the same legal standard. Michigan and Texas went only to the federal court, and not to the DOJ at all. And the end-run isn't because DOJ has been particularly ferocious this cycle: of the 1,074 total plans or procedures submitted to the DOJ, only three have drawn an objection.
- Looking to The Court. Speaking of preclearance, the Supreme Court has just entered the field in a big way. Texas drew lines, but chose to forego DOJ review, instead favoring the slower
D.C. federal court. When time got tight, a San Antonio federal courtdrew interim lines, which the Supreme Court put on hold in December, making time tighter still. The Supreme Court will decide how much deference federal courts should give to the wishes of jurisdictions covered by section 5 while awaiting preclearance -- which is itself a process designed specifically to ensure that the wishes of covered jurisdictions aren't immediately fulfilled. The answer to that question will drive redistricting strategy in some of the largest -- and most heavily minority -- states in the country.
- Looking to The Court II. The question above isn't the only big legal issue likely to be on the Supreme Court menu. In fact, thanks to a special procedure, most statewide redistricting cases get an express train to the Supreme Court; normally, the Supreme Court can choose its docket, but it must take these redistricting cases, straight from trial court. In late 2011, more than a few issues were teed up for Supreme disposition:
- Partisan gerrymandering. The Supreme Court has said that redistricting with "too much" partisanship is unconstitutional, but the justices have not agreed on the units of measurement, much less the quantum that becomes improper. In 2004, Justice Kennedy rejected several possible standards, but held open the door for future litigants. In this cycle, every lower court to have decided the issue has found litigants' new proposals wanting. So far.
- Section 5. Even before2006, Section 5 prevented jurisdictions from "abridging" minorities' right to vote. Population growth in Texas this decade -- mostly from Hispanics -- gave it four additional congressional seats, but Texas allegedly drew no new seats where the Hispanic community reliably has the ability to elect candidates of choice. Texas says that the absolute number of Hispanic-controlled districts is the only important metric; others say it's the percentage that matters. Supreme Court precedent might or might not apply to this multi-seat expansion. As minority population continues to grow across the country, the issue becomes increasingly important.
- Section 5. There have also been several challenges to Congress's constitutional power to reauthorize section 5, focusing largely on the geographic scope of the provision. In 2009, the Supreme Court found that the issue raised "serious questions," but declined to decide the matter; this cycle, in
two separate cases, a D.C. trial court squarely found that Congress acted within its authority. That judgment is swiftly heading back in the Court's direction.
- Hurry up ... Wisconsin's legislature went out of session in June, and wasn't scheduled to resume business until September. But legislators came back for a special session starting on July 19, and passed legislation on July 20, in an attempt to lock in a map before summer recalls jeopardized their unilateral political control. Now, despite clear legislative language setting the start date for the new map at the 2012 general elections, there's
litigation attempting to move the maps sooner still, applying the incumbent-friendly plan to any early-2012 recall.
- ... and wait. Virginia legislators tacked in the opposite direction. With 11 congressional seats at stake, negotiation over a redistricting plan stalled in 2011, despite state constitutional law
setting a year-end deadline. Then, in the 2011 state Senate elections, Republicans won two seats, leaving the body tied. With the lieutenant governor casting tie-breaking votes, that now appears (pending litigation) to leave the congressional redistricting process entirely in Republican hands ... if the delay hasn't deprived the legislature of its authority to draw lines. A federal case is poised to decide the matter.
- The public's will. In 2000, Arizona became the fourth state to transfer redistricting power from the legislature to a body of citizens not beholden to particular elected officials. (California would follow in 2008 and 2010.) But this November, after a controversy over alleged open-meetings violations, the governor and state Senate impeached the chair of this independent commission. Then the state Senate president was recalled (for a host of reasons), and the state Supreme Court overturned the impeachment and reinstated the chair. But the impeachment was the first of its kind, and it's not clear whether the impeachment or the subsequent rebuke will be the enduring lesson.
- The public's will II. 24 states allow popular referenda, when particular statutes can be put on the ballot for public approval or disapproval. Redistricting statutes are generally no different, though such referenda are relatively rare. In Ohio,
litigation over an initial congressional plan secured the possibility of a referendum, but a December compromise over a new map mooted the option. And in California, an attempt to put the state Senate map up for popular approval awaits only verification of the signatures submitted to put the map on the ballot.
- Representation without representation. In most jurisdictions, district populations are equalized by counting
incarcerated populations where they are imprisoned. That is, districts will have large populations of people who likely don't live in the district, likely can't vote there, and likely aren't meaningfully represented by the district's officials, skewing local governance. In 2010, following the practices of many local governments, three states corrected the problem by counting incarcerated individuals at their former residence for redistricting purposes; California passed similar legislation in 2011 for the next cycle. Suits challenged the laws in Maryland and New York; in December, both state and federal courts found the legislation constitutional.
- State constitutions. The most meaningful federal limits on the redistricting process are equal population requirements and the Voting Rights Act; beyond that, most of the rules are set by state law, which generally gives more latitude than constraint. Still, every once in a while, state laws show some teeth. The
Colorado Supreme Court rejected a state legislative map for insufficient attention to county lines; an Alaska court has similarly found potential problems with a state legislative plan's fealty to state priorities on compactness and communities of common interest. And many observers will be looking in 2012 to the Florida courts' construction of a new citizen-sponsored ballot initiative providing brand-new constraints on both federal and statedistricts.
- Beyond the 11th hour. For states without valid districts, time is beginning to run short. Kentucky's filing deadline for candidates is
Jan. 31, and candidates can't file without knowing where they're running for office. And Texas' first few filing deadlines have already come and gone, with primaries postponed and further deadlines subject to court order ... and more important, subject to the Supreme Court's further direction on the substance of the lines. The longer the delay, the larger the burden on local administrators, who have to redraw precincts, reallocate pollsite resources, and print and mail ballots, including to overseas voters in line with federal law. And those election administration problems could well spark lawsuits of their own.