Redistricting Roundup

I posted about Arizona’s redistricting case before the U.S. Supreme Court yesterday. Here is what is going on elsewhere in the nation.

Alabama

Federal judges last week ordered black legislators challenging Alabama’s legislative maps to come up with their own boundary lines. Redistricting case: Plaintiffs must provide map proposals:

The_Gerry-Mander_EditThe judges ruled in 2013 that the Legislature’s map did not violate the Voting Rights Act. The U.S. Supreme Court remanded the case back to the panel last March, saying the judges needed to reconsider how race affected the maps.

The three-judge panel Friday told the Legislative Black Caucus and the Alabama Democratic Conference to develop redistricting maps that follow the guidelines established by the Legislature in 2012.

The proposal must be filed by Sept. 25. Plaintiffs have the option of filing together or creating different plans. The state will have 28 days to respond.

The new proposals will not be the final word on the state’s district lines. The judges will consider the maps as part of plaintiffs’ broader argument that the 2012 map had racial biases.

“It’s an exercise, as we understand it, to help show whether the state was trying to target black percentages in each district, and thus sorting white and black voters by race,” James Blacksher, an attorney for the plaintiffs, said Tuesday. “We believe our maps will show they could have accomplished all their objectives in a way that would not have split any precincts or sorted black voters from white voters.”

The plaintiffs will have to develop maps that preserve incumbents, minimize county and precinct splits and do not reduce the state’s 27 majority-minority House districts and eight Senate districts.

The proposed maps will also have to use the strict population standard used by legislators in 2012 to draw the maps. The original map framers tried to keep black population in the new districts within one percent of the ideal legislative population.

That standard is at the heart of the dispute. The plaintiffs argue the strict standard led to “packing and stacking” of black voters within the majority-minority districts, making it difficult to enter coalitions with like-minded white voters and muting the voice of black citizens in the Democratic process.

Florida

Alachua-based Republicans who call themselves the “Conservative Coalition for Free Speech and Association,” is suing Secretary of State Ken Detzner in an attempt to invalidate the Fair Districts amendments of the Florida Constitution as unconstitutional,  approved by voters in 2010 (just like the Arizona legislature). Coalition files suit to invalidate redistricting law in Florida:

Several members of the Alachua coalition fought the release of their private emails in pending redistricting lawsuits, claiming it violates their First Amendment rights. The court ordered the release of a limited number of those documents, which showed that many of them were political operatives engaged in what the court called a “shadow redistricting” process that aimed to influence the Legislature’s drawing of its maps in a way that favored Republicans.

Meanwhile, the Florida legislature adjourned its special session last month without a final map, and the trial court judge assigned to review the map asked the Supreme Court how to proceed. Florida Supreme Court allows for another redistricting session, but orders trial court to take charge:

The Florida Supreme Court on Friday ordered the trial court to return to the redistricting drawing board, allowing it to review the rival maps submitted by the House and Senate and choose between them.

The court rejected a request by the plaintiffs to take over the drawing of the congressional map after a two-week special session of the Legislature in August ended without an enacted map.

But the high court opened the door to the state Senate’s request to conduct another special session on redistricting, as long as the work is completed by the deadline the court set in July — Oct. 17.

The ruling orders Circuit Court Judge Terry Lewis to hold a hearing on the “proposed remedial plans” from both the House and the Senate, as well as any amendments offered to them.

“However, the Legislature is not precluded from enacting a remedial plan prior to the time the trial court sets for the hearing,” the court added.

The ruling was signed by Chief Justice Jorge Labarga and Justices Barbara Pariente, Peggy Quince and J.C. Perry. Justice Charles Canady, the most outspoken critic of the court’s previous redistricting rulings, concurred in most of the decision but dissented in the part that said the trial court may not accept new evidence. Justice Ricky Polston concurred.

The court repeated its position that the “the burden remains on the House and Senate to justify their chosen configurations” and said that the final plan will be a permanent map, not an interim one as the House suggested.

It ordered the trial court to recommend before Oct. 17 the map that “best fulfills the specific directions in the Court’s July 9, 2015, opinion and all constitutional requirements.”

[I]t will be up to the trial court to set the schedule and give lawmakers a new deadline for providing him with a joint map if they agree to a special session.

North Carolina

North Carolina’s highest court is considering for a second time whether the state’s legislative and congressional boundaries were lawfully drawn on the basis of race, the justices also must consider seemingly competing rulings from the U.S. Supreme Court. On 2nd look at N. Carolina redistricting, justices weigh 2 court decisions on race makeup:

The state Supreme Court heard arguments Monday from attorneys representing the state and those for Democratic voters and civil rights and election advocacy groups who are challenging more than two dozen districts drawn by Republicans.

The state’s justices found the maps lawful last December, but the U.S. Supreme Court told them to take another look in light of its March ruling in an Alabama redistricting case. A majority of U.S. justices found Alabama lawmakers had relied too much on “mechanical” numerical percentages while drawing legislative districts in which blacks comprised a majority of the population.

That decision contrasts with a 2009 U.S. Supreme Court ruling — involving North Carolina state House districts — that found mapmakers could defend themselves against discrimination claims under the federal Voting Rights Act by creating districts with minority voting age populations of more than 50 percent.

“How do you reconcile the two decisions and how does that impact that case?” North Carolina Chief Justice Mark Martin asked Eddie Speas, an attorney for the plaintiffs. Martin later posed a similar question to Tom Farr, a private attorney representing state in defending the maps.

The two U.S. Supreme Court rulings reflect the tension on how to draw boundaries in states with large minority populations, said Tim Storey, a redistricting expert for the National Conference of State Legislatures. A Virginia congressional district also was reviewed recently based on the Alabama case, with a panel of federal judges again striking down its boundaries because its majority-black population had been increased.

“The legislatures would like bright lines … and courts have been very reluctant to provide those bright-line parameters to draw those plans,” Storey said in an interview.

The North Carolina maps were used in the 2012 and 2014 elections, helping Republicans expand their political control of the state into veto-proof majorities at the legislature and holding 10 of the 13 seats in the state’s congressional delegation.

GOP mapmakers increased the number of majority-black districts. The lines have contributed to a record number of black legislators, but they’ve also led to irregularly-shaped districts stretched to bring in black voters, making the adjoining districts more white and Republican.

The plaintiffs want the maps redrawn for the 2016 elections.

Texas

Texas has requested an en banc hearing by the full U.S. Court of Appeals for the Fifth Circuit to rehear civil rights plaintiffs’ case against the state’s voter ID law, after a three-judge panel from the same court recently ruled the law is discriminatory in violation of the Voting Rights Act. Voter ID Battle: Texas Seeks Rehearing, DOJ Seeks Injunction:

Because the state’s request for a rehearing is pending, and since Texas may also seek a hearing at the U.S. Supreme Court, the Fifth Circuit in a Sept. 2 order rejected civil rights plaintiffs’ proposals to have the litigation remanded to the trial court, where a judge could have ordered Texas to immediately start changing how it identifies voters.

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But the U.S. Department of Justice, which has sided with the civil rights plaintiffs in the litigation, wants to avoid any wait for Texas to redo its voter ID procedures. To that end, the DOJ also filed on Sept. 2 a motion requesting that the Fifth Circuit enter an injunction directing Texas to accept as sufficient valid voter registration certificates from voters who lack the specific list of documentation required under the law SB-14, which the Fifth Circuit’s three-judge panel struck down. Passed in 2011, SB-14 requires voters to show specific government-issued photo identifications. Among the identifications the law allows voters to show: driver’s licenses, concealed handgun licenses, U.S. military identifications, U.S. passports or other U.S. citizenship certificates.

The DOJ’s Sept. 2 motion also asks the Fifth Circuit to order Texas to educate voters about any court-ordered modifications of voter identification procedures.

The three-judge panel that heard Veasey v. Abbott—Fifth Circuit Chief Judge Carl E. Stewart, Fifth Circuit Judge Catharina Haynes and, sitting by designation, U.S. District Judge Nannette Jolivette Brown of the Eastern District of Louisiana—unanimously ruled on Aug. 5 that SB-14 is discriminatory. But the panel did not recommend that Texas return to the voter identification practices that took place immediately prior to SB-14’s enactment. Instead, the appellate court panel asked all the litigation parties to find a new alternative.

One day after the Fifth Circuit issued the Aug. 5 ruling, U.S. Attorney General Loretta Lynch said she would not eliminate the possibility of returning to court and seeking preclearance review of Texas’ changes to its voting laws or district maps if Texas officials persist in their battle to preserve the existing voter ID law. Federal preclearance of Texas voting laws was previously allowed under Section 5 of the Voting Rights Act of 1965—which celebrated its 50th anniversary on Aug. 6. But in a 2013 ruling, Shelby County v. Holder, the U.S. Supreme Court lifted the burden of Section 5 on Texas and other states. With Shelby, the high court’s majority ruled that the Voting Rights Act formula for determining whether changes to a state’s voting procedure should be federally reviewed was outdated.

Voter identification laws may be discriminatory not just by “what you do” but by “how you do it,” Lynch said.

The U.S. Supreme Court has already agreed to rule at its next Term a redistricting case from Texas  that also tests the application of the one-person, one-vote principle.   The issue in Evenwel v. Abbott is whether the process of redistricting should use population measured by voters in each district, or total population in each, in judging whether the equality of representation rule has been violated.

Pro Tip: U.S. Constitution, Fourteenth Amendment, Section 2: “Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State…” This means population, not registered voters.  The fact that cert was granted in this case is a concern.

Virginia

In June, a federal court ruled that Virginia’s third congressional district had been illegally packed with black voters to make surrounding districts safer for Republican incumbents, ordering the lines be redrawn by September 1. The Virginia General Assembly failed to meet that deadline. Court to move on redistricting as deadline passes:

Last week, with the deadline approaching, Judge Albert Diaz of the 4th U.S. Circuit Court of Appeals sent a letter to both sides in the case, ordering a telephone conference call with counsel “to discuss the next steps … in the event that the Virginia General Assembly chooses not to exercise its primary jurisdiction to prepare a remedial redistricting plan.”

Henry L. Chambers, Jr., a professor of constitutional law at the University of Richmond School of Law, said that the court might draw new district lines — or bounce the ball back to the legislature, allowing lawmakers more time to do the job.

UR’s Chambers said that should the court move forward with drawing a new map, it will “try to draw with as light a hand as possible by moving as few people as possible while draw3ing a district consistent with their opinion.”

The court is set to issue a map that would bring the 3rd District into compliance for the next congressional elections in November 2016.

Rep. Robert C. “Bobby” Scott, a black Democrat from Newport News, has represented the 3rd District since 1993.

Three districts bordering the 3rd could be impacted by a redrawing of the map: the districts are represented by Rep. Scott Rigell, R-2nd, J. Randy Forbes, R-4th and Dave Brat, R-7th.

Wisconsin

In July, Democrats sued state over redistricting, calling the current state legislative redistricting “one of the worst gerrymanders in modern American history.”

In Wisconsin’s 2012 elections, Democrats won 53 percent of the statewide popular vote, yet Republicans got 61 percent of the state legislative seats. That prompted a group of Democrats to sue the state, arguing they were the targets of political discrimination at the hands of Republican lawmakers. The plaintiffs cite one study that reviewed nearly all the redistricting plans since the 1970s and found Wisconsin’s to be one of the most gerrymandered. Court Cases Leave States Stuck in Redistricting Limbo. A three-judge panel in Wisconsin will hear the redistricting case in the fall. If the panel rules against the plaintiffs, they are expected to appeal to the U.S. Supreme Court.

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