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How the Never-Ending Battle of Redistricting Will Impact 2016

Florida and Virginia (and possibly two other states) have to redraw their unconstitutional voting maps for the 2016 election. Similar legal challenges are only likely to increase in coming years.

In both Virginia and Florida, legislators will meet in special sessions next month to deal with an issue they thought they'd settled years ago -- redistricting.

Congressional maps in both states have been ruled invalid by the courts. The reasons were different in each case, but each speaks to a trend that is keeping redistricting very much a live issue midway through the decade.

Political lines have to be redrawn once every 10 years, following the census. But the fight over them never really stops.

"It's a myth that there is a dormant time in the redistricting world," said Tim Storey, an elections expert at the National Conference of State Legislatures (NCSL). "For the past three decades, multiple lawsuits and special sessions devoted to redistricting have been the norm in the middle years of the decade."

In Virginia, a panel of U.S District Court judges ruled that the commonwealth's congressional map packed too many African Americans within a single district. The ruling was in keeping with a U.S. Supreme Court decision in March in a racial gerrymandering case (Alabama Legislative Black Caucus v. Alabama).

Legislators can create minority-dominated districts to satisfy federal Voting Rights Act concerns about racial representation, but they cannot keep cramming additional minority voters into districts in a way that dilutes their influence elsewhere.

"When government officials consider race, they must do so in a nuanced way, rather than a blunt or hamhanded way," said Justin Levitt, a professor at Loyola Law School in Los Angeles and author of the blog All About Redistricting.

Similar concerns are at the heart of pending cases in both North Carolina and Texas.

"We've got two, maybe four states where we're going to see new maps for the 2016 election," said Michael McDonald, a political scientist at the University of Florida.

The Florida case is not about race. There, the state Supreme Court ruled that eight congressional districts violated a constitutional prohibition against partisan and incumbent gerrymandering. The state's so-called fair district standards, approved by voters in 2010, seek to guard against lines drawn to benefit one party or incumbent politicians.

Legislators will redraw Florida's congressional map and might change the state Senate lines as well. (In Virginia, the Republican-dominated legislature will probably choose to do nothing, sending the matter back to the court, in the belief that the end result will be a better map for the GOP than anything that might be won in negotiation with Democratic Gov. Terry McAuliffe.)

There's already been some political fallout in Florida. Facing the prospect of a less-than-safe seat, Republican U.S. Rep. David Jolly announced Monday that he'll run for the U.S. Senate instead.

The Florida case would have been moot if the U.S. Supreme Court had ruled the other way in a recent redistricting case concerning the congressional map in Arizona. That case, Arizona State Legislature v. Arizona Independent Redistricting Commission, settled the question of whether legislatures possessed the sole responsibility for redistricting, or whether measures approved by citizens to set up independent commissions could do the job.

The U.S. Supreme Court ruled in June that independent citizen-led commissions have the right to handle redistricting. (AP/Ross D. Franklin)

While the Arizona case was pending, other efforts to take redistricting out of the hands of state lawmakers were effectively put on hold.

"Groups that might have been pressing forward press[ed] pause while the Supreme Court considered the Arizona case, because it might have changed the landscape dramatically," Levitt said. "We'll now see a lot of activity that might have happened over the past year or year and a half."

Last week, South Dakota Attorney General Marty Jackley announced that a petition drive, sponsored by the state Farmers Union, is underway to put the question of a commission system on next year's ballot. This November, Ohio voters will choose whether or not to expand the size of the body in charge of redistricting and guarantee greater minority-party representation. It only addresses legislative districts.

In addition to all this, Wisconsin Democrats recently filed a challenge against the state's legislative maps, arguing they represent a partisan gerrymander designed to keep the GOP in power and disenfranchise Democrats.

While no one doubts that is true, proving it in court is another matter. The U.S. Supreme Court has ruled that partisan gerrymanders are unconstitutional, but has never set standards to delineate just how far partisans can or cannot go.

"I think the most likely outcome out of Wisconsin is that this case goes nowhere," said McDonald, the Florida professor.

But that doesn't mean legal challenges won't keep coming. McDonald noted that last year's federal budget included campaign finance provisions that make it easier for parties to raise money for their legal defense funds.

"We're going to see so much more litigation over election issues as a consequence of their wallets being stuffed full of money," he said.

There never seems to have been a shortage of funding for legal cases challenging redistricting decisions. If anything, litigation is likely to speed up following the next census, in 2020.

In 2013, the Supreme Court invalidated the section of the Voting Rights Act, known as Section 5, which required nine states -- Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas, Virginia -- and parts of six others to receive "preclearance" from the Justice Department to make sure their districts were appropiate. They no longer need such federal approval.

States had finished their redistricting process for this decade before that decision came down, however, so those requiring preclearance had already had their maps blessed by the feds. Following the 2020 census, that won't be the case, meaning racial gerrymanders will first be challenged in court, rather than by the Justice Department.

"With the demise of Section 5, I only expect more litigation and mid-decade maps," said NCSL's Storey.

That's before the Supreme Court hears arguments in the coming term in a case, Evenwel v. Abbott, that challenges the current standard used to determine the proper size of districts. Every state uses total population, while the plaintiffs would prefer voting-age population or some other measure.

"It potentially has sweeping implications," said Michael Li, counsel at the Brennan Center for Justice at the NYU School of Law.

Alan Greenblatt is the editor of Governing. He can be found on Twitter at @AlanGreenblatt.
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