Anyone who thinks redistricting is completed within the first two years of census data being released should look at the litigation surrounding the maps Texas passed in 2011. A full recitation of the cases and court decisions reads like something out of a Dickens novel.
The state’s official redistricting timeline goes on for pages and ends on Sept. 24, 2019 — more than eight years after the maps were first enacted. Those eight years saw no fewer than three trials and two trips to the U.S. Supreme Court. Indeed, the Texas redistricting litigation continues to this day, with the outstanding issue of attorneys’ fees still pending before a federal court. Many of the parties seeking fees from last cycle’s redistricting litigation are now simultaneously challenging the maps enacted in 2021.
With only a few months left before the 2022 midterm elections in November, reporters and political analysts understandably want to sum up the 2021 redistricting process and declare a winner, but we still don’t know which maps will be in place for the next decade and which will be altered or redrawn. There is still one state — Louisiana — without a final congressional map. There are even more states facing current litigation on their recently enacted maps, and many of those maps will change again before the 2024 elections.
As a reminder, congressional reapportionment refers to the process of allocating 435 congressional seats between states and establishing the ideal number of people in each congressional district. This happens once a decade based on the results of the decennial census.
In contrast, redistricting refers to the process of drawing lines within a state to create districts that reflect the apportionment data derived from the census. In some states, legislatures redraw district lines multiple times over the course of a decade. In others, litigants can continue to challenge redistricting maps, inviting courts and lawmakers to redraw the district lines to conform to state or federal law.
Put simply, reapportionment happens once a decade, but redistricting and its subsequent litigation occur throughout the decade. In other words, redistricting is not a single, one-time event; the process continues for years to come.
North Carolina provides a good example of how redistricting plays out over a 10-year period. In 2011, Republicans enacted a congressional map that guaranteed them a solid and seemingly durable 10-3 advantage for the following decade. That map remained in place for two election cycles until 2016, when a federal court struck it down as racially gerrymandered and ordered a new map to be redrawn by state legislators.
This next version, which maintained Republicans’ 10-3 advantage, was struck down as a partisan gerrymander by a federal court in 2018, only two months before the midterm elections. Given the proximity to the elections, the court allowed the rejected map to remain in place, but ordered a new map to be redrawn after the November general election. This map never came to fruition because, in June 2019, the Supreme Court ruled in Rucho v. Common Cause that claims of partisan gerrymandering are beyond the scope of the nation’s federal courts, voiding the previous lower court’s ruling.
Another round of litigation ensued, this time in state court. In October 2019, a North Carolina state court struck down that same map blocked in 2018 by a federal court as a partisan gerrymander and required yet another map for the 2020 election. While the first and second maps had a 10-3 Republican advantage, the third map created eight Republican and five Democratic seats.
This was not unique to North Carolina. Over the course of the last decade, a clear pattern emerged. In states across the country, litigation brought better maps for Democrats — well after the first iteration of maps. In Florida, this was the result of hard-fought litigation under the state’s Fair Districts Amendment to the state constitution. Similarly, the Pennsylvania Constitution was used by voting rights activists to strike down a Republican-gerrymandered map and impose a map more fair to Democrats. In Virginia, like North Carolina, it was the federal courts — and ultimately the Supreme Court — that invalidated racially gerrymandered maps.
By the end of the decade, Democrats had gained 10 seats in those four states alone — Florida, North Carolina, Pennsylvania and Virginia — a margin greater than the four-seat majority Democrats currently hold in the U.S. House.
Already, we’re seeing more litigation in this redistricting cycle than ever before, and there is reason to believe that this pattern will continue over the course of the decade ahead. Louisiana is now asking the Supreme Court to reinstate its previously blocked congressional map and there remains active litigation to overturn other current congressional redistricting lines in Alabama, Florida, Georgia, Ohio and Texas. In each of those states, the plaintiffs have strong arguments that districts drawn by Republicans violate either the Voting Rights Act or the state or federal constitution. A victory in these states, or any subset of them, would tilt the current redistricting results further in favor of Democrats.
I say further because Democrats have, so far, done well in the first round of redistricting. As CBS News recently reported, “compared to the maps used in the 2020 U.S. House elections, Democrats are expected to see a net gain of ten seats that will favor their party by at least 5 points.” But this success is just a snapshot of the first round of map drawing, not the final results for the entire decade.
And there are places Republicans will also seek to make gains as the redistricting cycle plays out. They continue to litigate in New Mexico, and the North Carolina map that is favorable to Democrats in 2022 is set to be redrawn by a Republican-controlled Legislature in 2023.
The lesson is clear. Now is the time for Democrats to intensify their focus on redistricting, not turn away. Groups like the National Democratic Redistricting Committee do not dissolve at the end of 2022; rather, they continue to litigate for fair maps because they know the importance of a sustained fight. But they need our help. In order to continue to send Democrats who will fight for our democracy in Congress, we must ensure there are fair districts that Democrats can win — not just this year, but for the next decade and decades to come.