The Work

August 24, 2011 5:39 PM

Battle Lines: Redistricting Litigation Heats Up Across the Country

Posted by Victor Li

When the Illinois League of Women Voters filed a complaint in Chicago federal district court last week challenging the state's controversial congressional redistricting map, it was hardly unusual. After all, few political issues spawn as much litigation as the redrawing of electoral lines.

The suits are piling up again this year, as Republicans and Democrats alike aim to use the results of the 2010 census to gain a political advantage. According to, redistricting-related litigation is already underway in Alabama, Alaska, Colorado, Florida, Illinois, Maine, Minnesota, Michigan, Mississippi, Nevada, New Jersey, New York, Oklahoma, Oregon, Texas, Washington, and Wisconsin. The group, which tracks redistricting efforts across the country, expects to eventually add California, Ohio, Pennsylvania, and Virginia to that list.

While some of the cases represent traditional challenges by one major party against the other, several new issues are helping to feed this year's surge of redistricting litigation.

Consider the rationale behind the Illinois suit. The Illinois League of Women Voters argues that state law prohibits partisan considerations from affecting the drawing of districts and that doing that drawing based on their residents' political views violates the Constitution's First Amendment. The league wants the federal district court to block Illinois's newly drawn electoral map from going into effect.

"[T]he General Assembly conducted redistricting without the limited and often ineffective safeguards of the Illinois Constitution to ensure that there is a bipartisan agreement on a map that does not favor one political group over another," the league said in its complaint.

Thomas Geoghegan of Chicago-based Despres, Schwartz & Geoghegan, who represents the group, told The Am Law Daily that the government is essentially determining which views it will allow within districts and that lines should instead be drawn in a way that guarantees the greatest amount of fairness. "We would have a more competitive system if the state was not always trying to game it," Geoghegan said.

Political parties, of course, see things differently—and often don't wait until a resdistricting plan is filed before heading to court. According to Baker & Hostetler counsel Mark Braden, who is advising state Republican parties in Minnesota, Nevada, and Ohio on pending redistricting litigation, such so-called impasse suits are common when one party controls the governor's mansion while another controls both houses of the state legislature.  

In Minnesota, for example, Democrats and Republicans both filed suit against state officials, including Secretary of State Mark Ritchie, a Democrat, before new lines were drawn. In a complaint filed in federal district court in January, Democrats alleged that the election districts created in 2000 were unequally apportioned as a result of the new census findings and that citizens in highly populated districts were being discriminated against as a result.

Republicans filed a similar complaint in Wright County state court that same month. The Minnesota Supreme Court decided on June 1 that a five-judge panel will draw the lines if the governor and the state legislature cannot agree to a plan by February 2012.  

In Nevada, meanwhile, partisan gridlock has resulted in Governor Brian Sandoval, a Republican, vetoing two proposed redistricting plans passed by the state legislature, which is controlled by Democrats. Democrats, meanwhile, have sued Nevada secretary of State Ross Miller in Carson City state court based on the theory that, as in Minnesota, the state's old districts are now unconstitutional. 

Marc Elias of Perkins Coie, who represents Democrats in Minnesota and Nevada, says he expects Carson City district Judge James Todd Russell to appoint special masters to help with the mechanics of drawing the electoral map. Russell has asked the parties to submit their own candidates for the job.

"The idea is that you have a panel that serves as special master that helps with findings of fact as to how map should look like," says Elias, who has handled several high-profile recounts for Democrats, including U.S. Senator Al Franken's successful effort against then-U.S. senator Norm Coleman in Minnesota in 2008. "The judge would instruct them on the law, and they would draw maps that accorded with the law and facts based on what the parties bring."

The Nevada suit underscores the state's status as ground zero for what is emerging as the most contentious issue in the current redistricting cycle: how to ensure that Hispanic voters are properly represented.

According to the 2010 census, Hispanics are among the fastest growing ethnic minorities in the country, accounting for over half the nation's overall population increase since 2000. And Nevada is one of several states—others include Arizona, Florida, and Texas—poised to gain congressional seats thanks to the Hispanic boom.

In another Nevada suit, this one filed in Reno federal district court, a group of predominantly Hispanic voters alleges that the electoral districts dating to 2000 discriminate against Hispanics by limiting their political options."[S]ignificant Hispanic communities currently are divided between representational districts in a manner that dilutes their voting rights," the group states in its complaint. "The present voting districts diminish their ability to elect candidates of their choice."

Another potential legal basis for redistricting litigation related to Hispanic voters: the effect that the immigration reform debate may have had on census results and, ultimately, on the apportioning of congressional seats in some states.

In Arizona, for instance, only 69 percent of Arizonans responded to the 2010 Census questionnaire—well below the national average of 74 percent, according to There is anecdotal evidence, Salon reports, that Hispanics left the state or refused to cooperate with census canvassers. Further clouding the issue is the question of whether including illegal aliens in the census count could affect how lines are drawn.

 "If you are drawing a district that you want to be controlled by Hispanics, you have to draw it differently if half of them aren't citizens," says Jason Torchinsky, a partner at Washington, D.C.-based Holtzman Vogel who was hired by Republican lawmakers in Louisiana to handle their redistricting plan. The issue is at the heart of a federal lawsuit pending in Sherman, Texas, that alleges that the inclusion of high concentrations of illegal aliens in certain districts has diluted the strength of voters in other districts.

How to treat minorities in the redistricting process is also being complicated by Section 5 of the Voting Rights Act of 1965. The legislation, which requires that certain districts (mostly in the South) must obtain Justice Department approval before making any changes to their voting procedures, has been a matter of settled law for decades.

However, according to Columbia Law School professor Nathan Persily, an electoral law specialist, when Congress reauthorized Section 5 in 2006, it amended the original act by limiting the scope of two Supreme Court decisions that had effectively narrowed the Voting Rights Act.

The Court struck back in 2009, giving districts greater latitude to seek Section 5 exemptions while at the same time expressing doubts about the provision's consitutionality—without actually ruling on it. Since then, several local governments have filed lawsuits hoping to force the Court to explicitly address Section 5's constitutionality One such suit, filed by Kinston, North Carolina, officials, is currently before the U.S. Court of Appeals for Washington, D.C.

Until that happens, most lawyers are flying blind when it comes to Section 5. While Elias maintains that  it is clear that covered jurisdictions still must seek preapproval before changing district lines and that the government's duty to review the plan remains intact, others disagree. "People are trying to figure out what the newly enacted Section 5 entails," says Torchinsky. "It hasn't really been applied anywhere yet."

Columbia professor Persily notes that the U.S. Department of Justice has not challenged any redistricting plans during the current cycle, possibly because it is uncertain about how to proceed. "The DOJ knows they are being watched by the Supreme Court and so they have to pick their battles wisely," he says. "The Court has signaled its discomfort with Section 5 of the Voting Right Act. Any preclearance denials that are not rock-solid may be ones they are reluctant to make." (Justice has already precleared plans in Virginia and Louisiana.)

Ultimately, redistricting is a political process, and as a result of its success at the polls in 2010, Republicans have an edge in that process. Persily and Torchinsky note that the GOP has complete control over the redrawing of lines in 18 states—more than one-third of the country.

"That's a stunningly large number," says Torchinsky. "Ten years ago, it was more evenly divided." Elias maintains that Democrats have options at their disposal, including litigation. Still, he is realistic about the obstacles his party is facing.

"Elections have consequences," he says. "And one of them is that they determine the bodies that get to draw the lines."

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