If that sounds like a compressed time frame, it’s not at all unusual. Around the country, legislators are giving the public barely any time to study their new redistricting plans, let alone organize any kind of grassroots opposition.
“The compressed timetable is an impediment to public comment and transparency,” says Rebecca Green, a law professor at William and Mary. “It makes it harder for the public to engage in drawing lines.”
Legislators can argue that they have no choice but to move fast. Due to pandemic delays, the Census Bureau didn’t release the data states need to draw maps until Aug. 12. That hit up hard against statutory or constitutional deadlines for redistricting in many states.
But that’s not the case everywhere. Indiana, for example, has no legal deadline for its legislative maps. And today’s software makes it easy to draw maps essentially instantly.
Instead, legislators – who are still drawing most maps, despite the creation of independent commissions in several states in recent years – are trying to play a game of hide the football, seeking to press partisan advantages without any real community input or pushback.
“This is the opposite of transparent,” Avery Bourne, a Republican state representative in Illinois, complained as majority Democrats muscled through legislative maps last month. “It was a sham to ask the public to be in those hearings if you’re not even going to take into consideration their suggestions.”
Yelling Into the Wind
At least in Indiana, citizens will have an opportunity, however brief, to review the new maps ahead of Thursday’s hearing. In Nebraska, the Redistricting Committee is holding hearings tomorrow and Thursday – after having already voted on the new legislative map on Monday. States such as Alabama, Georgia and Texas all held hearings and public forums before they’d actually produced any maps.
“It’s basically shouting at the wall,” says Kathryn Sadasivan, redistricting counsel for the NAACP Legal Defense and Educational Fund. “There are public hearings happening before the committee has met or drawn any maps, and the committee is not going to be present at those hearings.”
There are a couple of reasons legislators want to move fast and, to the extent possible, in secret. Lack of real public scrutiny helps them avoid any immediate accountability, but there’s also a longer-term benefit. Not holding hearings means legislators have fewer opportunities to say something stupid on the record courts might find questionable later on.
Litigation is certain when it comes to most maps, if not all. But the legal landscape has changed since the last round of redistricting a decade ago. For one thing, the Supreme Court ruled in 2019 that partisan gerrymandering is not a matter that federal courts can deal with. Extreme gerrymanders can still be challenged in state courts – and competition and fairness are requirements in some state constitutions – but the idea that there’s such a thing as an unconstitutional partisan gerrymander is off the table at the federal level.
Also, this is the first redistricting cycle since the Supreme Court’s 2013 decision that gutted portions of the Voting Rights Act. That means legislators in 11 previously monitored states no longer have to worry about the Justice Department reviewing their maps prior to passage.
“Without the protection of the Voting Rights Act, these maps that have no public input or transparency are also not going to be reviewed by the Department of Justice for their effects on Black and Hispanic voters,” Sadasivan says.
What Outcry?
Green, the William and Mary law professor, has a study coming out showing that courts have found compressed schedules or insincere efforts to engage the public are themselves reason to question maps. She’s hopeful that legislators can still be kept in check by the public, since software makes it possible for interest groups and citizens to check their work in real time, generating easily understood metrics to show when a map is unfair from a partisan or racial standpoint.
“In past rounds of redistricting, it was only after passage that the public became aware how warped the maps were,” Green says. “This time, the public will be enraged to a greater degree sooner.”
That may be the case, but it would be surprising if any legislature changed its mind or its maps in response to public outcry. Redistricting is all about locking in power, whether on a partisan basis or as part of a bipartisan incumbent protection plan. The whole point is that politicians will have less reason to fear paying any real political cost if they represent safe districts.
Already, legislative contests are less competitive. Most years, roughly 40 percent of legislators face no general election competition at all. And changes in legislative control have become rare. Throughout the 20th century, a dozen chambers on average changed hands each cycle. Last year, New Hampshire’s Legislature was the only one in the nation to switch.
Most of the new legislative maps being produced and approved around the country will serve only to cement current majorities. But if there’s something untoward about the way legislators are rushing to guarantee their own future success, there’s nothing new about it.
“Throughout history, this has all happened in dark rooms where people weren’t paying attention,” Green says. “There are lots of examples where maps were proposed, given a day of public comment, and then off they go on their merry way.”
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