Think redistricting will be over next year? Think again.
There’s a possibility that several key states will go into overtime, with lawsuits dragging the process past the 2012 elections.
The scenarios range from lawmakers having to file for re-election in their current district and then refile later in a redrawn one to, in the worst case, running in one district next year and then a redrawn one in 2014.
Texas and Florida are likely to have the most controversial and litigious maps, with six new House seats at stake between the two states.
The new Texas map has already passed and is awaiting pre-clearance. In Florida, the redistricting process isn’t expected to get under way until early 2012.
In Texas, either courts or the Justice Department must clear the new map before the Dec. 12 candidate filing deadline for the March primary.
Texas officials filed their case with federal courts last month, but there is no set time frame for a ruling.
It’s possible that the federal courts could strike down the map without giving state lawmakers enough time to pass a new plan and resubmit it. In that case, a three-judge panel would likely redraw the map — and it’s anyone’s guess what the final result would be. Candidates would run in the primary and general election under those court-mandated Congressional boundaries — and not those drawn by state lawmakers earlier this year.
The courts ultimately drew the Texas Congressional map a decade ago after state lawmakers could not agree on a plan. That ruling precipitated the infamous mid-decade redraw orchestrated by former House Majority Leader Tom DeLay (R-Texas).
“The Congressmen are deathly afraid of it being sent to the three-judge panel based on what happened in 2001,” said one Texas Republican operative close to the redistricting process.
By comparison, Florida has a relatively late timeline, with a June filing date and August primaries. Redistricting experts in the Sunshine State say it’s unlikely lawmakers will miss those deadlines. They argue that it’s more plausible that litigation over the new Fair Districts amendment could affect next year’s election calendar.
Voters passed that state constitutional amendment last year, which requires state lawmakers to draw districts that are compact and use “city, county and geographical boundaries.” Two Members of Congress filed a lawsuit protesting the amendment last year — one of many related lawsuits expected over the new map.
If courts continue to grapple with the maps through next summer, candidates will likely file to run for House seats under the current map. If the court rules on a new map before the primary, candidates might have to refile for the correct House seat just before August.
“The delays that you and I should be watching are the courts. I don’t think it will be the legislative process,” said Screven Watson, a Democratic attorney and former executive director of the Florida Democratic Party. “I don’t think anybody wants a scenario in Florida where we run under the old seats and then we have to come back.”
But it has happened before in Florida. In the 1992 cycle, candidates filed to run for seats under the old map because courts had not yet cleared some of the boundaries of the new map. After courts signed off on the new map, candidates refiled to run within the newly established district boundaries, just before the primary.
Several decades ago, lawmakers had another solution for redistricting problems. They created at-large Congressional districts for Members to run in — sometimes in some of the most populous states in the country. But the Supreme Court ruling in the 1960s and a 1967 law ended that practice.
Even if next year’s election calendar isn’t disrupted by protracted court battles, there’s still a chance that some state legislatures could try to revise their maps for 2014 or beyond.
Laws vary by state as to whether state legislators can redraw district boundaries mid-decade.
That’s what happened in 2005, when Georgia Republicans redrew the Congressional map put in place by Democrats in 2002.
“If the state constitution is silent on Congressional redistricting, there’s no impediment for the state to revisit redistricting later in the decade,” redistricting attorney Jeff Wice said.
Georgia and Texas are not the only states to attempt a mid-decade map re-draw.
North Carolina lawmakers altered their Congressional boundaries twice in the 1990s as they went back and forth with the courts over a fair map.
And after courts drew the South Carolina maps for 2002, state lawmakers made minor tweaks to the maps for the 2004 cycle.
Michael McDonald, a professor at George Mason University and an expert on what he calls “re-redistricting,” believes New York and Virginia are ripe for “do-over” Congressional maps in a couple of years.
“Both have divided state government, state legislatures, and neither appeared to be able to produce a Congressional plan,” McDonald said. “The other factor is that after the next elections, it may be that those states will have unified state government. That’s the framework you need in order to have a re-redistricting: a change in control of the redistricting process through an election.”
Lawmakers have not even released draft maps in New York, but the process will be contentious with Republicans in control of the state Senate and Democrats in charge of the House and governor’s office.
But there’s a good chance Democrats will take control of the state Senate in 2012, putting the party in a strong position to redraw the Congressional map for the next cycle.
Virginia lawmakers have already reached a redistricting stalemate with Republicans in control of the state House and the governor’s mansion and Democrats in control of the state Senate. There’s a good chance that Republicans will take control of the Senate in either 2011 or 2013 and, in the latter case, could put the GOP in a strong position to draw a new map for that cycle.
Meanwhile, the redistricting process has already landed the Congressional maps from Minnesota, Nevada and Colorado in court. It’s anyone’s guess how long litigation in those states could drag on.
“I would assume that what would happen is there would be a plan that would be adopted,” said Mark Gersh, a Democratic redistricting expert with NCEC Services. “The question is whether some legal proceeding would go beyond this.”
Vice President Joe Biden waits to conduct a mock swearing-in ceremony with Sen. Brian Schatz, D-Hawaii, in the Capitol's Old Senate Chamber, December 2, 2014. Schatz was sworn in to serve the remainder of his term since he was appointed to the seat after Sen. Daniel Inouye, D-Hawaii, passed away.