Redistricting: Waiting to Hurry Up (National Law Journal)

Jones Day partners Donald F. McGahn II and John M. Gore describe in the National Law Journal how the Census Bureau's latest release of congressional appointment data has impacted the decennial redistricting cycle for state legislatures and redistricting commissions across the country.

After months of delays, the Census Bureau released congressional apportionment data on April 26. The decennial release of apportionment data is a sign of America's political times: it reveals how many seats in the House of Representatives—and, accordingly, how many presidential electors—each state will have for the coming decade. This year's data continued the trend of shifting seats out of traditionally Democratic states and to more traditionally Republican states in the south and west. In particular, seven states—California, Illinois, Michigan, New York, Ohio, Pennsylvania, and West Virginia—each lost one seat. Colorado, Florida, Montana, North Carolina, and Oregon each gained one seat, while Texas gained two seats. If this apportionment had been in place for the 2020 election, it would have resulted in a net decrease of three electoral votes for Joe Biden.

The release of the census bureau's apportionment data is significant for yet another reason: it marks a major milestone toward the decennial redistricting cycle for state legislatures and redistricting commissions across the country. But while apportionment data tells states how many congressional districts they have, it does not reveal where those districts (and state legislative districts) must be drawn to comport with the Constitution's one-person, one-vote requirement. That comes later when the census bureau releases redistricting data with population figures, which it has promised to do by September 30.

The Census Bureau's 2021 data releases represent substantial delays over prior years and from the mandates of Federal law. Federal law requires the President to transmit apportionment data during the first week of the congressional session in early January and directs the census bureau to publish redistricting data by April 1. Even under normal circumstances, these deadlines place significant pressure on states to draw, debate, and enact new redistricting plans in time for the next election cycle.

The pandemic-related delays in the data releases will only exacerbate those pressures this year. Indeed, many states already are facing a variant of the old "hurry up and wait" adage: they find themselves waiting to hurry up. States, including states facing state-law deadlines to enact new redistricting plans, have responded to this challenge in a variety of ways. For example, voters in New Jersey, which holds odd-year elections for its legislature, approved a constitutional amendment last year to hold the 2021 elections under the state's old redistricting plans and to postpone the enactment of new plans. The California legislature received from a state court a four-month extension of its state-law redistricting deadlines. And the state of Ohio recently filed a lawsuit seeking to compel the census bureau to release redistricting data earlier than announced. To date, that lawsuit has not resulted in the relief Ohio is seeking.

It remains to be seen how other states will grapple with these delays. Regardless of how states respond in the short term, however, enacting new plans is only the beginning: after all, where redistricting occurs, litigation is sure to follow. It has become axiomatic in states across the country that redistricting disputes spill out of legislatures and commissions and into courthouses. As just one example, litigation regarding North Carolina's redistricting plans adopted after the 2010 Census did not conclude until early 2020—barely in time for North Carolina to start redistricting all over again.

The upcoming redistricting cycle promises once again to be highly contentious and heavily litigated. In fact, if anything, this cycle will be more contentious and litigious even than the last cycle. In the last year, voting and election litigation has emerged as the new major battlefront in partisan politics. Redistricting litigation can change control of legislative seats and even legislatures, so it is precisely the kind of high-stakes political litigation that will proliferate in the current environment.

At the same time, recent decisions from the U.S. Supreme Court have changed the game in redistricting and redistricting litigation. Those decisions include rulings that complicate map drawers' consideration of minority voters' race and the racial make-up of voting precincts and communities. Map drawers must now walk a tightrope of considering race enough to comply with the Justices' interpretation of the Voting Rights Act, but not so much as to offend their current construction of the Constitution. Recent changes in the composition of the Supreme Court may result in even more shifts in the Court's jurisprudence in this area.

And then there is the Supreme Court's 2019 decision in Rucho v. Common Cause, which confirmed that the Constitution does not prohibit partisan gerrymandering. The Court's ruling, however, did not close all courthouse doors to partisan gerrymandering claims: rather, it will only hasten the trend of shifting redistricting litigation to state courts. Indeed, in the last redistricting cycle, state courts in Florida, Pennsylvania, and North Carolina issued decisions striking down alleged partisan gerrymanders, supplying a blueprint that plaintiffs will surely ask other courts across the country to follow this cycle.

Finally, Democrats in Congress are also seeking to wade into the redistricting fray. H.R. 1, the "For The People Act," would remove congressional redistricting from the people's chosen representatives in the legislature and mandate that it be carried out by appointed commissions. H.R. 1 also prescribes several qualifications for redistricting commissioners, including a requirement that states consider race in choosing commissioners. And it does not stop there: if enacted, H.R. 1 would dictate the criteria that commissions could use to draw districts. H.R. 1 has already passed the House and is pending before the Senate.

While the precise ways in which states will approach redistricting remain to be seen, one thing is certain: states are waiting now only to hurry up later through perhaps the most contentious and litigious redistricting cycle in the nation's history.

Reprinted with permission from the National Law Journal, May 14, 2021. © 2021 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.

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