Behind the Lines
Examining some of the most consequential redistricting lawsuits of the cycle.
What is Redistricting
Redistricting is the process of redrawing electoral district boundaries to reflect population shifts and the reapportionment of seats in the U.S. House of Representatives amongst the states based on the most recent federal Decennial Census. Every ten years, the United States Census Bureau conducts the federal Decennial Census – a complete enumeration of every person in the United States. Thomas Jefferson, then Secretary of State, conducted the first Census in 1790. The 1790 Census , counted 3,893,635 Americans across 16 states. To put that in perspective 2020 Census enumerated a total population of 331,449,281 across 50 states and the District of Columbia.
Following each new census, congressional and state legislative districts are redrawn with the goal of equalizing populations across districts. Redistricting reshapes the political landscape in one of the most politically significant issues for elections over the past two centuries.
Both the Decennial Census and congressional reapportionment are mandated by the U.S. Constitution in Article I, Section 2 which states:
Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers . . . . The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct.
Following the Census, the 435 seats of the U.S. House of Representative and 538 votes of the Electoral College are distributed across the 50 states in a process known as apportionment. The most recent apportionment following the 2020 Census led to the shifts of congressional seats as shown by the map below.
Changes from 2020 Apportionment
The authority to draw the new federal and state electoral boundaries is entrusted to the individual states by Article I, Section 4:
The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations . . . .
States are left with broad discretion over how each of their lines are drawn beyond the few U.S. Constitutional provisions interpreted to apply in the redistricting context.
Redistricting has followed different guidelines throughout American history. Modern redistricting has largely been formed by judicial rulings at the U.S. Supreme Court and federal legislation enacted in the 1960s and 1980s. Principally among these statutes and rulings are the requirements that districts must be of equal population (“One Person, One Vote”), must be contiguous, and must not deny racial, ethnic, and language minorities equal access to the political process (see Voting Rights Act of 1965 ).
States have traditionally been given substantial latitude to prescribe additional requirements for district compositions and how they are to be drawn. For more information regarding state specific processes and requirements, see The American Redistricting Project’s State Profile pages.
Recently, several states have delegated their redistricting authority to a redistricting commission. For most of these states, non-legislators are chosen to redraw the districts and adopt new legislative and/or congressional plans.
Some states’ commissions are made up of citizens who apply to serve, while others are comprised of a select group of elected officials or political appointees designated by the major political party leaders in the state. A few states have backup redistricting commissions, which assume line-drawing authority in the event the primary authority fails to adopt or enact a new redistricting map. Finally, some states have advisory commissions who aid in drawing map proposals for the legislature, but have no actual power to enact new maps.
Primary Redistricting Authority
Lawsuits & Litigation
Redistricting is a complicated process that can significantly impact the makeup of a state's congressional delegation and the balance of power in the U.S. House of Representatives and in state legislatures. Due to the high-stakes nature of this process, each redistricting cycle brings with it an ever increasing number of legal challenges in both the federal and state court systems.
States with Redistricting Litigation during the 2020 Redistricting Cycle
This cycle has seen litigation brought in 35 different states. These lawsuits, if successful, can lead to new maps being enacted or adopted. The American Redistricting Project will highlight some of the highest profile litigation this cycle in Alabama, Maryland, New York, North Carolina, and Ohio. Each state will have a dedicated chapter that dives into the legal issues and map data underlying these challenges and, most importantly, their outcomes and effects on these states' redistricting plans.
Alabama
The Alabama State Legislature passed H.B.1 on November 3, 2021, and Governor Kay Ivey signed it into law on November 4, 2021. Three federal lawsuits were filed challenging the plan as violating § 2 of the Voting Rights Act and on January 24, 2022, a federal district court granted a preliminary injunction barring it from being used in future elections. The State appealed this ruling to the U.S. Supreme Court which stayed the district court’s injunction on February 7, 2022, thereby allowing the plan to be used in the 202 elections. The case remains pending before the U.S. Supreme Court, with a decision expected later this year.
As shown here, H.B. 1 largely maintained the same configuration of Alabama’s congressional districts as they’ve existed since 1992 – a fact that will likely be addressed in the U.S. Supreme Court’s eventual opinion.
In the Alabama “chapter,” we will explore the finer details underlying the case currently before SCOTUS: the history of Alabama’s congressional districts, the State’s asserted interest in maintaining this layout, and the demographic trends of the state throughout the decades.
Maryland
The Maryland General Assembly passed H.B. 1 / S.B. 1 on December 8, 2021, and although Governor Larry Hogan vetoed the plan, the General Assembly overrode the Governor’s veto on December 9, 2021. Two lawsuits were filed in a Maryland Circuit Court challenging the plan as a partisan gerrymander in violation of various provisions of the Maryland Constitution and Maryland Declaration of Rights relating to free elections, the right to vote, free speech and equal protection. The circuit court struck down the plan on March 25, 2022, as an unconstitutional partisan gerrymander after incorporating and applying the state constitution’s legislative redistricting criteria as a standard for reviewing congressional redistricting plans. The court ordered the General Assembly to pass a remedial plan and submit it to the court for review, which they did on March 30, 2022.
The originally passed map is on the left, while the enacted map in shown on the right side of the slider.
The State initially appealed the circuit court’s ruling but on April 4, 2022, the parties moved to voluntarily dismiss the appeal after Governor Hogan agreed to sign the newly passed plan into law, which he did that day.
In our Maryland “chapter,” we will examine the constitutional standards applied by the circuit court in its ruling, the violations thereof identified in the original plan, and the changes made in the remedial plan to address and better comply with those guidelines.
New York
After rejecting the New York State Independent Redistricting Commission’s first proposed congressional plans, the New York State Legislature passed A.B. 9039 / S.B. 8172 and A.B. 9167 / S.B. 819 (technical corrections) on February 2, 2022, and Governor Kathy Hochul signed them into law on February 3, 2022. A lawsuit was filed in the Steuben County Supreme Court challenging the plan as violating the anti-gerrymandering provisions of the New York Constitution’s independent redistricting commission amendments and on April 4, 2022, the court invalidated the plan as unconstitutionally enacted and as an unconstitutional partisan gerrymander. The intermediate appeals court affirmed the partisan gerrymandering ruling but reversed the procedural ruling and on April 27, 2022, the New York Court of Appeals reversed and declared the plan void as being enacted in violation of the state’s constitutional redistricting process and with unconstitutional partisan intent. The case was remanded back to the supreme court with instructions to adopt a remedial congressional plan with the aid of a special master, Dr. Jonathan Cervas.
The originally passed map is on the left, while the enacted map from the court-appointed special master is shown on the right side of the slider.
The special master submitted his final remedial congressional plan to the court on May 21, 2022, shown here. The court issued an order adopting it as final the same day.
In the New York “chapter,” we will break down New York’s tumultuous redistricting process, from the failed independent redistricting commission reform to the state legislature’s adjudged violations of the New York Constitution and examine how the breakdown impacted the state’s final congressional plan.
North Carolina
The North Carolina General Assembly enacted S.B. 740 on November 4, 2021, and two lawsuits were filed in the Wake County Superior Court challenging it as an unconstitutional partisan gerrymander under various provisions of the North Carolina Constitution. On January 11, 2022, the superior court upheld the plan as valid after ruling that partisan gerrymandering claims under the North Carolina Constitution presented non-justiciable political questions, citing the U.S. Supreme Court’s similar ruling Rucho v. Common Cause . The plaintiffs appealed to the North Carolina Supreme Court and on February 4, 2022, the Court struck down the plan as an unconstitutional partisan gerrymander that violated the North Carolina Constitution’s Free Elections, Equal Protection, Freedom of Speech, and Freedom of Assembly Clauses. The General Assembly passed their remedial plan, S.B. 745, and submitted it to the Court on February 18, 2022, but the Court rejected that plan on February 23 on the grounds it failed to satisfy the partisan metrics laid out in the Court’s original opinion. Instead, the Court ordered the adoption of the court-appointed special master’s congressional plan for interim use in the 2022 elections.
The originally passed map is on the left, while the enacted map from the court-appointed special master is shown on the right side of the slider.
The defendants filed a petition for a writ of certiorari with the U.S. Supreme Court on March 17, 2022, which remains pending. The question presented is whether the U.S. Constitution’s Elections Clause limits a state supreme court’s authority to nullify election laws and impose its own redistricting regulations based on non-explicit state constitutional provisions.
In our North Carolina “chapter,” we will examine North Carolina’s lengthy history of redistricting litigation, the standards imposed by and legal reasoning of the state supreme court in its most recent decision, and the context of the state’s latest trip to the U.S. Supreme Court.
Ohio
The Ohio General Assembly passed S.B. 258 on November 18, 2021, and Governor Mike DeWine signed it into law on November 20, 2021. Three lawsuits were filed in the Ohio Supreme Court challenging the plan as violating the partisan fairness provisions of the Ohio Constitution. On January 14, 2022, the Ohio Supreme Court struck down the plan as an unconstitutional partisan gerrymander and ordered the General Assembly to enact a new plan within thirty days. The General Assembly missed that deadline, and map drawing authority passed to the Ohio Redistricting Commission which passed a remedial congressional plan on March 2, 2022, shown here. The plaintiffs filed renewed objections to the remedial plan as violating the same partisan fairness constitutional provisions but on March 18, 2022, the Ohio Supreme Court denied those objections and dismissed the lawsuits after finding the Court lacked jurisdiction to review a remedial plan passed or adopted in response to the Court’s final judgment. The Court’s dismissal order explicitly stated it did not preclude the filing of a new original action challenging the adopted remedial plan as unconstitutional and two lawsuits doing just that were filed shortly thereafter, which remain pending before the Ohio Supreme Court.
With this year’s elections rapidly approaching, the adopted remedial plan, shown here, will be used in the 2022 elections and any ruling by the Ohio Supreme Court will be implemented for 2024 onward.
The originally passed map is on the left, while the enacted map in shown on the right side of the slider.
In the Ohio “chapter,” we will dive into the substantive and procedural mechanisms of Ohio’s redistricting reform constitutional amendments, their application and interpretation by the Ohio Supreme Court, and the ways in which these provisions shaped Ohio’s congressional plans.
