With a three-judge panel invalidating the lines of one of the most competitive congressional districts in the country late last week, redistricting is once again in the political spotlight.
The Texas case was a reminder that redistricting litigation, which played out in the lead-up to the 2016 elections, is still ongoing across the country. It could result in Rep. Will Hurd’s district becoming more favorable for Democrats in 2018,
Congressional maps in North Carolina and Maryland are still being challenged, with the impact on next year’s midterms yet to be determined.
The Texas effect
Friday’s late-night decision out of San Antonio came as a surprise — even to political junkies and legal scholars.
“It’s fair to say, everyone was caught off guard” said Michael Li, senior counsel for the Brennan Center’s Democracy Program.
The Texas case was tried in 2014 and stems from a map drawn six years ago that is not even the current map. The court found that race was improperly used to draw Hurd’s district, GOP Rep. Blake Farenthold’s 27th District and Democratic Rep. Lloyd Doggett’s 35th District. (The same federal three-judge panel is expected to rule separately on challenges to the current 2013 map, which could impact 26th District Rep. Michael C. Burgess.)
“People had almost given up on this case, but now we have a major ruling of nationwide importance,” Li said.
For civil rights advocates, the major significance of the Texas ruling is not so much what it means for individual members of Congress in the near term, but what it may mean for the ability of Texas, and other southern states, to make changes to voting procedures on their own in the future.
By finding that Texas’ Republican-controlled legislature intentionally discriminated against black and Hispanic voters when it drew the map, the judges opened up the possibility that Texas could be “bailed” back in to preclearance requirements under the Voting Rights Act.
When the Supreme Court struck down key provisions of the Voting Rights Act in 2013, it did away with the requirement that states with histories of discrimination had to seek federal approval before making changes to their voting laws. The three-judge panel has the authority to put Texas back under preclearance, but it has not yet ruled on that matter.
Even that possibility, though, could be good news for Democrats, who have been fighting efforts across the country by Republican-controlled legislatures to impose voting restrictions.
Ahead of a midterm election in which Democrats need to pickup 24 seats in the House, any decision that could shift a district in their favor could put them closer to that magic number.
“Right now we expect the new lines to boost Democrats’ prospects in at least two districts,” said Tyler Law, spokesman for the Democratic Congressional Campaign Committee. The National Republican Congressional Committee did not immediately return request for comment about the ruling.
The San Antonio court ruled that Hurd’s district — although 70 percent Hispanic — was drawn to include lower-turnout Hispanic voters. Hurd responded Monday, pointing out that his district had “record turnout” and voted for Hillary Clinton last fall.
“The voters graded my paper and saw fit to put me back in office,” said Hurd, who won re-election by 1 point. Inside Elections with Nathan L. Gonzales rates his 2018 race a toss-up.
But as with most redistricting rulings, the ultimate legal fate of this case and its political ramifications are uncertain and likely to be further complicated when the Department of Justice under the Trump administration switches sides in the case, as it’s expected to do.
The state of Texas is likely to appeal the ruling, but it cannot do that yet. First, the court has to rule on challenges to the 2013 congressional map and challenges to its state House districts. Only then, Li said, will there be an appealable order.
If the lower court’s decision is upheld by the Supreme Court, the responsibility for redrawing the map would likely fall to the GOP-controlled legislature, a process that will be fraught with politicking from both sides.
But there’s not much time. The filing deadline for congressional candidates for the 2018 midterms is Dec. 11 — a mere nine months away.
Outstanding redistricting cases
Redistricting cases affected several maps leading up to last year’s congressional elections. In Virginia, Democrats gained a safe seat, now held by freshman Rep. A. Donald McEachin. In North Carolina, the lines of the districts changed, but the GOP advantage in its congressional delegation did not.
Legal challenges to North Carolina’s map are still pending. In McCrory v. Harris, which was argued before the Supreme Court in December, Republicans are appealing a lower court’s 2016 ruling that the 1st and 12th Districts were racially gerrymandered in 2011. The court found that black voters were packed into Democratic Reps. G.K. Butterfield and Alma Adams’ districts, thereby diluting their influence across the state.
And this is where it gets confusing — and potentially, very messy. As is the case in Texas, the 2011 map that is the subject of this Supreme Court case is no longer in use. North Carolina’s GOP-legislature drew a new map last spring that was used for last fall’s elections.
But just because the 2011 map isn’t in use anymore doesn’t mean there can’t be legal repercussions from having drawn it in the first place.
“Just because you go shoplifting and say you’ll put things back on the shelf, doesn’t mean there’s not a penalty,” Li said by way of analogy.
If the Supreme Court sided with former Gov. Pat McCrory, ruling that the 2011 map wasn’t a racial gerrymander, the state would then have to decide which map they’d want to use going forward.
There’s a second pending case that could affect North Carolina’s congressional map, but this one affects the new map and it’s in federal district court. The League of Women Voters and Common Cause are objecting to what they see was a partisan gerrymander in the 2016 map, under which Republicans hold 10 seats and Democrats three, unchanged from the 2011 map.
In Maryland, it’s Republicans rather than Democrats who feel wronged by redistricting. The plaintiffs have argued that in 2011, the Democratic governor and legislature drew the 6th District to favor Democrats. It’s currently held by Democratic Rep. John Delaney, who unseated 10-term Republican Roscoe Bartlett in 2012.
All of these cases are hanging in the balance with just four years to go until state legislatures take a fresh stab at redistricting based on the 2020 census.