Gerrymandering Power On The Line: Ballots & Boundaries (Correct)

Unresolved legal questions could fundamentally alter redistricting ground rules for decades to come.

Federal lawsuits from North Carolina, Alabama, and Arkansas test the limits of the Voting Rights Act, the boundaries of state government authority, and the ability of voting rights groups to file racial gerrymandering cases.

Together, the cases could build a near-complete shield for state legislatures bent on achieving maximum partisan advantage in the next redistricting cycle, said election law scholar Franita Tolson of the University of Southern California Gould School of Law.

“These doctrines and approaches in these cases fundamentally reset the rules of the game,” she said. “In 2030 we will live in a completely different world than we lived in in 2020, and 2020 was not favorable to minority voters at all.”

Here’s a quick walk through the basics:

Legal theory: Independent State Legislature Doctrine

Why it matters: The US Supreme Court could give state legislatures the ultimate power to redraw congressional lines, potentially nullifying independent redistricting commissions.

State courts could be prevented from redrawing maps that violate state constitutional protections against partisan gerrymandering, said Jason Marisam, professor at Mitchell Hamline School of Law in St. Paul, Minn.
“We’re one decision away from an anything-goes, ‘Wild, Wild West’ way of partisan gerrymandering,” Marisam said.

Four justices have indicated they’d consider adopting the “independent state legislature” theory in some form, raising the prospect that states with single-party legislative control could legally draw the minority party out of power.

Where it stands: The US Supreme Court is considering whether to take the case next term.

Legal theory: Voting Rights Act test conflicts with the 14th Amendment

Why it matters: Legislatures drawing maps could consider race-neutral criteria, such as compactness or decreasing county splits, as more important than the consideration of racial impact, impeding cases under Section 2 of the Voting Rights Act.

“If Alabama’s legal arguments were accepted in whole it could definitely curtail suits, making it a lot more difficult under an already difficult standard for plaintiffs to prevail,” said Davin Rosborough, senior staff attorney for the American Civil Liberties Union’s Voting Rights Project.

The opposing argument is that states revising congressional district lines shouldn’t consider race when it’s not required.

Where it stands: The US Supreme Court stayed the case, and a lower court order drawing a second majority-Black district was stayed during the 2022 cycle. Arguments are set for October.

Legal theory: No “private right of action” under the Voting Rights Act, Section 2

Why it matters: Most racial gerrymandering claims are brought by voting rights groups on behalf of minority voters. The Eighth Circuit Court of Appeals is being asked to rule that only the US attorney general could bring Voting Rights Act lawsuits alleging discriminatory effects of district lines.

Enforcement would fall to the discretion of the president, who might not be inclined to bring cases that would harm his or her party, or that would take resources from other priorities.

Fourteen Republican state attorneys general filed a friend of the court brief arguing voting rights litigation interferes with the states’ ability to pay for voting rights programs.

The opposing view: “Allowing private parties to redress voting rights violations through the courts is a really important mechanism for rooting out racial discrimination in voting,” said Jeffrey Justman, a partner with Faegre Drinker Biddle & Reath LLP, representing a group of former legislators and aides involved with the 1982 Voting Rights Act. His bipartisan group also filed a friend of the court brief.

Where it stands: While some courts have found that a private right is “implied” in the statute, a federal district court in February ruled that the NAACP couldn’t bring a case alleging racial discrimination in Arkansas’ congressional map because no private right is mentioned in the law’s text. That decision’s appeal in the Eighth Circuit could tee up the issue for the US Supreme Court, where Justices Neil Gorsuch and Clarence Thomas have questioned whether private parties can bring these cases.

For the latest, set up BGOV or BLAW alerts on: Moore v. Harper, U.S., No. 21-1271, Merrill v. Caster, U.S., No. 21-1087 and Arkansas State Conference NAACP v. AR Board of Apportionment, 8th Cir., No. 22-1395. — Alex Ebert

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Redistricting News

FLORIDA: OFFICIALLY REVERSED
A state appeals court formally reversed a lower court’s temporary injunction blocking a congressional redistricting plan drawn by the Florida governor’s office.

That order, replacing the map approved by Gov. Ron DeSantis (R) with one preserving a minority-access district in North Florida, “is unlawful on its face,” according to the decision from Florida’s First District Court of Appeal. The lower court went too far in issuing an injunction that, without a trial, required holding congressional elections under a new plan, it said.

The map DeSantis wanted is being used in this year’s mid-term elections, amid ongoing litigation in state and federal courts. — Jennifer Kay

KANSAS: GERRYMANDERING OK
The Kansas Supreme Court declared that the state constitution doesn’t prohibit partisan gerrymandering, elaborating on its 4–3 decision to approve a new congressional map. The new map makes it harder for the only Democrat in the Kansas congressional delegation, two-term Rep. Sharice Davids, to win reelection in her Kansas City-area district. (The Associated Press)

Ballot Initiatives

MASSACHUSETTS: WEALTH TAX
Massachusetts got the go-ahead for ask voters whether millionaires should pay higher taxes. The question will appear on the November ballot after the state’s high court approved the attorney general’s summary of the ballot question.

This is the sixth attempt to amend the state constitution to allow for a graduated income tax; voters rejected the first five. — Perry Cooper

CALIFORNIA: THIRD TRY
We’ll be watching how much more money gets spent to try for a third time to sway voters to change the way dialysis clinics are regulated.

The 2018 and 2020 attempts rank among the most expensive ballot initiative battles in California history. Opponents, bankrolled by providers Davita Inc. and Fresenius Medical Care North America, Inc., in 2018 raised $111.5 million and supporters raised $20.9 million. Two years later, the “no” campaign raised $105.3 million and the “yes” side $9 million.

The initiative will be on the Nov. 8 ballot. — Tiffany Stecker

See also: California Dialysis Crackdown Measure Returns to 2022 Ballot

FLORIDA: COURT REJECTION
A federal judge permanently blocked a 2021 Florida law capping individual contributions to political committees sponsoring state ballot initiatives.

A preliminary injunction last summer stopped the law (S.B. 1890), which set a $3,000 limit, from taking effect.

In a new order, US District Judge Allen Winsor also blocked a law that was set to take effect July 1. The second law (H.B. 921) would have limited the $3,000 cap to out-of-state contributors. “If anything, the amendment undermines the asserted interest in preventing fraud,” Winsor said in his order. — Jennifer Kay

See also: Judge Blocks Florida Law Limiting Ballot Question Contributions

Election Law

NEW YORK: FRAUD PROBE
The FBI is looking into potential absentee ballot fraud in Rensselaer County, N.Y., the Albany Times-Union reports. Republican Board of Elections employees have been subpoenaed to testify before a federal grand jury, according to the report.

The probe comes after the state this week passed the John R. Lewis Voting Rights Act, banning voter dilution, suppression, intimidation and obstruction, and making it easier to sue over voting rights violations. The new law also requires jurisdictions with a history of civil or voting rights violations to get preclearance from the state Attorney General’s Office Civil Rights Bureau to change election policies and practices. — Keshia Clukey

WISCONSIN: CONTEMPT
What started out as a partisan copycat exercise, with the Republican-controlled Wisconsin Legislature hiring an outsider to check out the validity of the 2020 presidential election result, has now become something else altogether.

The contractor, a former state Supreme Court justice, has been found in contempt of court. Michael Gableman’s being fined $2,000 a day, and Wisconsin Circuit Court Judge Frank Remington sent a transcript of the contempt hearing to the Wisconsin Office of Lawyer Regulation for it to consider whether to revoke Gableman’s law license.

Gableman ignored an order to turn over public records involving his investigation to American Oversight, a government watchdog group. The judge also criticized Gableman’s “disruptive conduct” at the hearing, including disparaging remarks about a female attorney. — Stephen Joyce

Resources

• Our past coverage: B&B archive on BGOV
• Princeton Gerrymandering Project
• Litigation Trackers: Loyola Law School Brennan Center
• Redistricting Trackers: fivethirtyeight.com, The Washington Post, redistrictingonline.org

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To contact the reporters on this story: Alex Ebert in Madison, Wisconsin at aebert@bloomberglaw.com; Jennifer Kay in Miami at jkay@bloomberglaw.com; Tiffany Stecker in Sacramento, Calif. at tstecker@bgov.com; Stephen Joyce in Chicago at sjoyce@bloomberglaw.com; Keshia Clukey in Albany, N.Y. at kclukey@bloomberglaw.com

To contact the editors responsible for this story: Tina May at tmay@bloomberglaw.com; Katherine Rizzo at krizzo@bgov.com