By John Haughey
It’s a fine litigative line: Gerrymandering by a majority party for political purposes is legal because elections have consequences. But if the consequences of gerrymandering predetermine election results by diluting the voting efficacy of racial minorities, then it is illegal.
Defining when “racial gerrymandering” is constitutional and when it is not is a nub of contention in dozens of proceeding and pending redistricting lawsuits nationwide. These range from how a Texas county crafted its county commission precincts to a South Carolina case challenging the state Legislature’s congressional district map to be heard before the United States Supreme Court in October.
Plaintiffs in most suits defend “racial gerrymandering” as mandated under the 1965 federal Voting Rights Act’s (VRA) Section 2 to ensure that minority voters have a “reasonable chance to elect candidates of their choice” as well as for violations of voters’ 14th Amendment Equal Protection clause rights.
In several cases, however, plaintiffs—often appeals by mostly Republican-led states—claim that such allegedly expansive interpretations of the VRA’s Section 2 do not affirm voters’ rights but violate them under the 14th Amendment’s Equal Protection clause.
They argue that “over emphasis” on race as the primary redistricting factor is unconstitutional because political ideologies cannot be inherently ascribed by race, nor should political party allegiance be systemically assumed by race.
Anticipated rulings in a bevy of unresolved state and federal litigation in the wake of post-2020 U.S. Census reapportionment and subsequent 2021 redistricting are expected between now and June, when the Supreme Court traditionally issues its decisions.
Those determinations may mean that come Nov. 5, 2024, voters in some states will be casting ballots in different state legislative and congressional districts than they did in 2022.
How and where those court decisions shake out could also have significant repercussions in Congress, potentially making it structurally more difficult for Republicans to expand or sustain their current 222-212 U.S. House majority in 2024 elections.
Lawsuits in at least six states demand that GOP-led legislatures create additional competitive congressional districts for Democrats, while only two redistricting challenges could foster decisions creating more competitive districts for Republican congressional candidates.
Supreme Court’s Allen Ruling
Much of the agitation and speculation stems from the U.S. Supreme Court’s 5-4 June 8 ruling in Allen v. Milligan. It upheld a January 2022 determination by a three-judge U.S. Northern District of Alabama panel, which determined that the Republican-supermajority state Legislature’s reapportioned post-2020 Census maps denied black voters a “reasonable opportunity to elect a candidate of their choice.”
The lower federal court rejected the Legislature’s reapportioned map of Alabama’s seven congressional districts and ordered a new map be redrawn to incorporate more black voters into a second majority-minority district or something “close to it.” The state Legislature appealed to the Supreme Court.
The Supreme Court, in a ruling that surprised many, denied the state’s appeal and remanded the case back to the three-judge panel with a mandate to issue a version of a reconfigured map by Oct. 1. The panel on Sept. 5 reiterated its rejection of Alabama’s congressional map and ordered that a special master—and not state lawmakers—redraw one that includes two districts where black voters “have an opportunity to elect candidates of their choice.”
In issuing its determination, the Supreme Court upheld the lower court’s application of the 1986 Thornburg v. Gingles decision, which created a three-part test to evaluate claims brought under the VRA’s Section 2.
Justice Brent Kavanaugh joined Chief Justice John Roberts and the court’s three liberal-leaning justices in casting the deciding votes in upholding Allen, but also penned a concurrence with Justice Clarence Thomas’s 48-page dissent. The conservative-leaning justice argued that even if Congress once had the power to authorize race-based redistricting, “the authority to conduct race-based redistricting cannot extend indefinitely into the future.”
In his concurrence, Judge Kavanaugh said because Alabama was not challenging “racial gerrymandering” directly in its appeal, he would “not consider it at this time” in Allen, but left it open for consideration in a better-defined subsequent case.
The ‘Kavanaugh Concurrence’
The “Kavanaugh Concurrence” could come into play when the Supreme Court on Oct. 11 hears Alexander v. South Carolina State Conference of the NAACP, one of six 2023 term cases set for oral arguments between Oct. 2–11.
The South Carolina NAACP had spearheaded a lawsuit challenging the state’s Republican-led Legislature’s post-2020 Census reapportionments in three of the state’s seven congressional districts under the VRA’s Section 2.
In January 2023, a three-judge federal panel ruled that one of the districts was “an unconstitutional racial gerrymander” under the VRA’s Section 2, agreeing with the NAACP that state lawmakers deliberately moved tens of thousands of black voters into different districts, making Congressional District 1 (CD 1), currently represented by Rep. Nancy Mace (R-N.C.) a safe Republican seat.
The South Carolina Legislature, with Senate President Sen. Thomas Alexander (R-Pickens) as the lead plaintiff, appealed to the Supreme Court, which formally placed the case on its 2023 session docket in July after issuing its Allen decision in June.
State lawmakers argue the three-judge panel unjustly assumed they acted in bad faith and racial enmity in drawing congressional districts but that that their actions are legally justifiable political attempts to ensure “a stronger Republican tilt” in CD 1.
The Legislature’s GOP leadership claims the lower court ruling violates the U.S. Constitution 14th Amendment’s Equal Protection Clause and 15th Amendment, which holds the Constitution doesn’t permit race to be used as a predominant factor in drafting legislative district maps.
South Carolina lawmakers contend if the January 2023 decision is upheld, as it was in Allen, it would put state legislatures nationwide in “an impossible bind” between “pursuing political goals and traditional criteria” in crafting legislative districts and requiring “racial predominance” be the dominant factor in redistricting.
Suits Could Reshape 2024 Congressional Races
According to the Brennan Center, as of July 2023, at least 74 lawsuits in 27 states were filed against post-2020 Census legislative maps as racially discriminatory gerrymanders with more than 45 pending or in appellate holds.
The American Redistricting Project maintains that the Alabama and South Carolina cases are two of at least eight active legal challenges to post-2020 Census congressional districts. The others are in Georgia, Florida, Texas, Mississippi, Arkansas, and Washington.
There are also pending or stalled lawsuits against congressional district maps in Michigan, North Dakota, and Ohio, while state lawmakers in North Carolina, New York, Alaska, Maryland, and Louisiana are under court orders to refashion congressional and/or state legislative districts by early 2024.
The American Redistricting Project notes other lawsuits in at least nine states that challenge state legislature boundaries could also result in rulings that affect congressional district maps or how they are crafted.
Below is a roundup of six significant redistricting legal challenges.
Georgia: Pendergrass v. Raffensperger
Proceedings began on Sept. 5 in Atlanta and are expected to last through Sept. 15 in Pendergrass v. Raffensperger, one of three federal challenges to the post-2020 Census congressional map adopted by Georgia’s Republican-controlled Legislature in December 2021.
Pendergrass addresses congressional districts. The other two lawsuits, being heard simultaneously before U.S. District Judge Steve Jones, address alleged issues with state legislative districts under the same VRA Section 2 claim.
In Pendergrass, the plaintiffs, all individual voters, say Georgia lawmakers committed a classic case of “packing” and “cracking” when they allegedly “packed” Atlanta metro-area CD 13 with Democrat voters, while “cracking” surrounding black communities up between four neighboring congressional districts.
They say this violates the VRA Section 2’s prohibition against the “denial or abridgement of the right of any citizen of the United States to vote on account of race or color.”
Plaintiffs sought to have the new maps blocked for the midterms but in March 2022, Judge Jones denied that motion despite maintaining the state had likely violated the VRA.
Thus, the state’s 14 congressional district maps were retained for the midterm elections with Republicans winning nine of those elections.
In July 2023, Judge Jones denied the last of the state’s motions to dismiss, sending the case to the now underway trial.
Plaintiffs maintain the 2020 Census confirms that at least 500,000 black Americans moved to Georgia between 2010-20—nearly half the state’s 1 million growth in population.
Using the Census and demographics, plaintiffs say there should be at least one more black-majority congressional district on the west side of Atlanta and, across the state, at least three more majority-black state Senate districts and five additional majority-black state house districts.
The state argues plaintiffs haven’t proved voters act the way they do because of race, arguing partisanship is a stronger motivator, and say the lawsuits do not satisfy the conditions necessary for a Section 2 claim as laid out in Gingles.
Florida: Black Voters Matter v. Byrd
In a ruling issued early Sept. 2, Florida Circuit Court Judge J. Lee Marsh struck down the state’s post 2020-Census reapportionment, ruling that congressional maps Florida Gov. Ron DeSantis had lobbied the Republican-supermajority Legislature to adopt improperly diluted black voting power guaranteed in the state’s Constitution.
A separate federal challenge to Florida’s 2022 congressional map is still pending but all eyes—for now—are on the state’s expected appeal of Judge Marsh’s ruling in Black Voters Matter v. Byrd.
The lawsuit—filed by Black Voters Matter, Equal Ground Education Fund, League of Women Voters of Florida (LWVF), Florida Rising Together, and individual voters—alleges that Florida’s 28-district congressional map violates the state Constitution’s Fair Districts Amendment, adopted by voters in a 201-0 statewide ballot referendum.
Under the Fair Districts Amendment’s “non-diminishment standard,” districts cannot be drawn in a manner that “diminishes” the ability of minority voters to elect their preferred candidate.
Judge Marsh concluded that when the Legislature revamped maps during post-2020 Census redistricting, it essentially dissolved a congressional district long represented by black Democrats in violation of the Fair Districts Amendment, which also requires lawmakers preserve a “historically performing minority district” in North Florida.
In its 2020 Census, Florida gained more than 2.7 million residents since 2010, boosting its population to 21.54 million and expanding its congressional delegation from 27 to 28 beginning with 2022’s midterms.
In redrawing the existing 27 districts into a 28-district map in the 2022 legislative session, Mr. DeSantis rejected lawmaker’s first map as an “unconstitutional racial gerrymander” and called the Legislature into a special session where it adopted his map.
The revised map took the state’s CD 5—a 200-mile swath of eight counties from Jacksonville west to Tallahassee held by a black Democrat since 1993, including Rep. Al Lawson (D-Fla.) since 2017—and made it into a Duval County-only district.
Under the new map, a significant number of Democrat-registered voters in the former CD 5 were fragmented across several North Florida congressional districts dominated by Republicans.
The revamped map placed three-term Mr. Lawson into a 2022 midterm reelection in CD 2 against incumbent Rep. Neal Dunn (R-Fla.) in a district that voted for former President Donald Trump over President Joe Biden by more than 11 percentage points in 2020.
Not surprisingly, Mr. Dunn defeated Mr. Lawson by more than 20 percentage points and, under the new map, Republicans boosted their grip on the state’s congressional delegation from 16-11 in 2020 to 20-8 in 2022.
Several voting and civil rights groups challenged the redrawn map under state law, claiming that the Fair Districts Amendment prohibits districts from being drawn to favor or disfavor a political party or candidate, and also prohibits the “diminishment of minority communities’ ability to elect a representative of their choice.”
But the state maintains that the Florida Fair District Amendment is an “unconstitutional racial gerrymander” that violates the 14th Amendment’s Equal Protection Clause by prioritizing race over “compactness” in drawing CD 5.
Judge Marsh in his Sept. 2 ruling, however, held that “[p]laintiffs have shown that the enacted [map] results in the diminishment of black voters’ ability to elect their candidate of choice in violation of the Florida Constitution.”
He noted during “the hearing on the parties’ outstanding legal issues, Defendants, Florida House and Florida Senate, conceded as much.”
Under the judge’s order, the state is blocked from using the 2022 maps in congressional elections, meaning that lawmakers must again redraw the state’s 28 congressional districts.
The state is expected to appeal and the case is likely to end up before the Florida Supreme Court, where Mr. DeSantis has appointed five of the seven-justice bench. All parties have consented to expedited proceedings.
Texas: Petteway v. Galveston County
While a federal lawsuit objecting to the Texas Legislature’s post-2020 Census congressional district map remains delayed in pretrial discovery entanglements, a U.S. District Court judge officiated an Aug. 7–19 trial on lawsuits challenging how the Galveston County Commission divvied up its four county commission precincts.
U.S. Southern District of Texas Judge Jeffrey V. Brown is expected to issue his decision by October on Petteway v. Galveston County, a compilation of lawsuits that legal observers say could potentially produce the most significant redistricting ruling since the Supreme Court’s June 2023 Allen ruling.
Among plaintiffs challenging the Galveston County commission map are the NAACP, League of United Latin American Citizens, the Southern Coalition for Social Justice, the Texas Civil Rights Project, and the U.S. Department of Justice (DOJ), which rarely engages in redistricting lawsuits at the county or municipal level.
In reconfiguring the county’s four county commission precincts during post-2020 Census reapportionment, the commission agreed to defy long-established U.S. Fifth Circuit Court legal affirmations of “coalition” districts to essentially induce lawsuits that, the county and state believe, will uphold the map as constitutional.
Defendants want to get the case before the current Fifth Circuit, which they believe is now poised to reverse decades of court-upheld race-centric reapportionment in Texas. Many believe the case will eventually be appealed and heard before the U.S. Supreme Court, regardless of Judge Brown’s ruling.
“This is a very important case,” Judge Brown said when the two-week trial concluded on Aug. 19. The last post-trial filings are due on Sept. 15 with a ruling to follow.
During the trial, the DOJ argued that the county maps clearly violate the VRA’s Section 2 by purposely diluting the electoral efficacy of a long-established minority-majority commission district.
Meanwhile, another set of consolidated lawsuits brought by individual Texans, the Texas NAACP, the DOJ, and others maintain the Legislature’s post-2020 Census congressional district map fails to acknowledge that much of Texas 2010-20 growth was fueled by newcomers of color.
The suits argue Texas’s Republican supermajority Legislature’s 2021 map was crafted to “bolster the party’s dominance, giving white voters even greater control of political districts throughout the state” and maintains that as many as four of the state’s 38 congressional districts—24 held by the GOP—violate the VRA’s Section 2.
The state refutes that its “race blind” map violates federal or state law. Texas has argued the VRA’s Section 2 does not apply to redistricting, but the Supreme Court’s Allen ruling dashes that line of legal pursuit.
Originally set for a September 2022 trial in El Paso, the federal congressional redistricting lawsuit has been mired in labyrinthic disputes over discovery, particularly in reference to whether lawmakers’ email and other statements made during redistricting are legally admissible in court or are protected “legislative privilege.” Those challenges must be resolved before the case proceeds.
Arkansas: Christian Ministerial Alliance v. Thurston
By the time the Supreme Court issued its June ruling in Allen, three lawsuits challenging Arkansas’s post-2022 Census congressional district map had already been dismissed on assorted grounds.
But since the Supreme Court issued its decision forcing Alabama to revise its maps based on alleged racial discrimination, a fourth legal challenge against the Arkansas reapportioned maps has gained renewed life and is progressing.
In The Christian Ministerial Alliance, et al v. Thurston, plaintiffs argued that when the Arkansas GOP supermajority Legislature revamped the state’s four congressional districts into a new map during their 2022 legislative session, they “fractured” 22,000 of 41,000 black Democrat-registered voters in CD 2 across three districts while adding 25,000 Republican-registered voters to the district.
The plaintiffs challenge the constitutionality of Arkansas’s congressional map under the 14th and 15th Amendments, in addition to the Voting Rights Act, claiming the “fragmentation of voters in the predominantly black residential areas of Little Rock in Pulaski County, in what had been CD 2, denied those voters of a reasonable chance to elect a candidate of their choice.
CD 2 has been represented by Republican U.S. Rep. French Hill (R-Ark.) since 2014 when he was first elected in the “old” CD 2 by 8 percentage points, or nearly 20,000 votes. That was followed with his reelections in 2016 by nearly 22 percent, in 2018 by slightly more than 6 percent, and in 2020 by 10 percent.
Under the new map in 2022, Mr. Hill cruised to a fifth term by defeating Democrat Quintessa Hathaway by more than 61,000 votes and nearly 26 percentage points.
Former Gov. Asa Hutchinson, a 2024 GOP primary contender, did not sign the 2022 bill lawmakers adopted but allowed it to pass into law without endorsement.
Previous federal three-judge panels dismissed earlier-filed suits because, they said, plaintiffs failed to show that state legislators meant to discriminate along racial lines in crafting new maps.
At least one of those dismissals is being appealed to the U.S. Supreme Court. Any decision by a three-judge appellate panel is appealable directly to the Supreme Court.
Judge Marshall, meanwhile, denied the state’s motion to dismiss Christian Ministerial Alliance on Aug. 1. But no date for a hearing before the three-judge panel has been set.
Mississippi: NAACP v. State Election Commissioners
While Mississippi State Conference of the NAACP v. State Board of Election Commissioners challenges state senate and house districts, how this matter is resolved could affect the state’s four congressional districts.
Filed in December 2022 by numerous groups spearheaded by the ACLU of Mississippi, the lawsuit will be heard in the U.S. District Court for the Southern District of Mississippi in a trial that begins on Feb. 26, 2024.
For the first time since the 1991-92, Mississippi lawmakers orchestrated the state’s post-2020 Census reapportionment after a three-judge federal panel agreed to cede jurisdiction back to the Legislature.
In February 2023, the Supreme Court refused to hear an appeal to continue the nearly 40-year-old lawsuit that put Mississippi’s redistricting under the jurisdiction of federal judges.
The post 2020-Census legislative district maps that lawmakers drew “deny Black residents … an equal opportunity to participate in the political process and elect candidates of their choice” in violation of VRA’s Section 2 and the 14th Amendment, plaintiffs say.
According to the suit, Mississippi’s maps were “released at the very end of the 2022 legislative session … drawn with virtually no transparency and passed into law mere days after they were first revealed to the public,” and “do not reflect the reality of Mississippi’s demographics and growing Black population.”
Black Mississippians comprise approximately 38 percent of the state’s population, according to the 2020 Census. “Mississippi’s Black population could support at least” four additional black-majority districts in the state’s 52-senate district map, and three additional black-majority districts in the state’s 122-house district map, plaintiffs contend.
The lawsuit documents that there were 12 state house districts with black populations of more than 40 percent in 2010—districts where minority voters were not a majority but had efficacy—yet only one district meets that description now following the post 2020 Census reapportionment.
There are separate legal challenges to the state’s three Supreme Court districts, which plaintiffs argue have not been redrawn in more than 35 years. Only one of Mississippi’s nine Supreme Court justices is black.
“Due to persistent and overwhelming racial polarization in voting, no Black Mississippian has ever been elected to statewide office in the 132 years since the adoption of the state’s 1890 Constitution,” plaintiffs contend.
Washington: Palmer v. Hobbs, Garcia v. Hobbs
U.S. Western District of Washington Judge Robert Lasnik on Aug. 10 upheld one of several legal challenges by Yakima Valley Latino voters to the Democrat-led Legislature’s post-2020 Census reapportionment of state house districts.
Judge Lasnik’s partial ruling followed a June trial that concurrently heard two lawsuits filed against the state’s house district maps, Palmer v. Hobbs, filed in January 2022, and Garcia v. Hobbs, filed in March 2022.
Palmer alleged state lawmakers “cracked” Latino voters in the state’s 15th Legislative District (LD 15), where they are a majority population, into several districts across the Yakima Valley, diluting their voting strength and thus violating VRA’s Section 2.
Plaintiffs include Susan Soto Palmer among other individual voters and the Coalition of People of Color for Redistricting, which is supported by state and national voting rights groups.
Garcia was filed by Benancio Garcia, who lost a 2022 Republican congressional primary to incumbent U.S. Rep. Dan Newhouse (R-Wash.) and maintains the state’s legislative maps are an unconstitutional racial gerrymander.
Mr. Garcia claims that LD 15 violates the 14th Amendment’s Equal Protection clause “because it was drawn purely so that slightly more than half of its citizens of voting age are Latino … without any other compelling purpose.”
In his Aug. 10 ruling, Judge Lasnik only addresses Palmer’s VRA Section 2 claim, ordering lawmakers to revise its legislative district map by Feb. 7, 2024. Judge Lasnik wrote he will issue an eventual “separate order” regarding Garcia’s 14th Amendment Equal Protection claim.
The Associated Press contributed to this report.