Republicans Threaten Lawsuits Over Districts Drawn by Race (1)

  • GOP eyes suits attacking racial “communities of interest” lines
  • Independent commissions in the crosshairs of partisan lawyers

(Adds Kincaid comments about the political impact of demographic shifts in paragrpahs 15 and 16.)

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States that go beyond the minimum requirements of federal law to preserve minority voting power could be sued for “racial gerrymandering,” a national Republican group said.

The National Republican Redistricting Trust said it’s preparing to bring lawsuits in several states, especially targeting those with independent redistricting commissions, such as California, Michigan, and Colorado.

They’ll try to convince courts that commissions “don’t always do a good job of complying with the Voting Rights Act,” Adam Kincaid, the group’s leader, said during a Thursday media call. “They look toward drawing some of these maps, creating districts that the [Voting Rights Act] does not require, and if it’s not required, then the 14th Amendment says you shouldn’t be looking at race.”

The effort could delay new lines that are supposed to be ready in time for the 2022 elections.

(To follow what states are doing to change voting laws and reconfigure districts, subscribe to our free newsletter, BALLOTS & BOUNDARIES. )

Marina Jenkins, director of litigation and policy at the National Democratic Redistricting Committee, characterized the GOP strategy as an attempt to suppress the voting power of minority communities.

“Fair redistricting does not require us to be colorblind,” she said. “Fair redistricting processes must include the identification and acknowledgment of how diverse communities need and want to be represented.”

‘Communities of Interest’

“The whole reason” the U.S. has districts instead of just electing at-large members of Congress is to set up representation that’s responsive to local concerns, Harvard Election Law Clinic Director Ruth Greenwood said in an interview.

During once-a-decade redistricting, commissions or legislatures have to figure out which communities to keep together.

The Republicans argue using racial communities of interest to draw the district lines injects race into the process in a way that violates the 14th Amendment.

Michael Li, senior counsel for the Brennen Center’s Democracy Program, said there’s some logic in the strategy because the “Voting Rights Act, specifically Section Two, has been interpreted really restrictively by the courts and so it can’t really be used in a lot of places.”

That section of the law was intended to prohibit states from slicing up compact minority populations in areas where White majorities had a history of voting as a bloc to defeat minority-backed candidates.

“Districts based on communities of interest that happened to consider minority residents do not run afoul of the 14th Amendment ban on racial gerrymandering as long as they are not contorted by joining dissimilar, separate communities together into one district,” New York Law School Professor Jeffrey M. Wice said.

Republicans are “threatened by the increased diversity in much of the country, especially in the suburbs of the country that aren’t currently protected by the Voting Rights Act,” Li said. Therefore, “they want to dismantle communities of color, in the suburbs and elsewhere, and they view communities of interest requirements as a roadblock to being able to dismantle the growing power of suburban communities of color.”

Kincaid disagreed. He said that over the last 20 years the country has continued to diversify but Democrats and Republicans have had close presidential races and there’s now a split Senate and a nearly split U.S. House. This, he said, is evidence that the GOP is making in-roads with minority voters.

“Democrats talk about how demographics is destiny for them, and it’s just not the case,” he said.

Redistricting is mostly handled by legislatures, so the party with most of the seats can draw boundaries that give it the upper hand in elections for the next 10 years.

Republicans have the power to redraw 187 congressional districts compared with 75 for Democrats. Commissions and states with partisan splits will draw the remaining 173.

To contact the reporters on this story: Alex Ebert in Columbus, Ohio at aebert@bloomberglaw.com; Ayanna Alexander in Washington at aalexander@bloomberglaw.com

To contact the editors responsible for this story: Andrew Childers at achilders@bloomberglaw.com; Katherine Rizzo at krizzo@bgov.com

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