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The once-a-decade process of redrawing Congressional districts is moving from
the smoke-filled back room to the courtroom. Lawsuits related to redistricting
have been filed in more than half the states, asking judges to decide issues
that include whether the new maps take partisan gerrymandering too far or
discriminate against minority voters.
In some states, courts are being asked to draw the new maps themselves.
Courts have begun the process in Nevada, where the Republican governor, Brian
Sandoval, vetoed maps drawn by the Democratic-controlled Legislature, and in
Minnesota, where the Democratic governor, Mark Dayton, vetoed maps drawn by the
Republican-controlled Legislature. Courts are also taking the lead in Colorado and New Mexico, where legislatures
were unable to reach agreements on what the new maps should look like.
States that have drawn new districts are already facing a flurry of legal
challenges, giving the courts, once again, a major role in drawing districts
that could help determine the balance of power in Congress for the next decade.
The maps that many states have drawn so far are expected to help Republicans
maintain the gains they made in the 2010 elections, largely by allowing them to
tweak the boundaries to make politically mixed districts lean more toward
Republicans.
New maps favoring Democrats in Maryland and Republicans in Utah were signed
into law last week, and even before the ink was dry, lawsuits were being
threatened in both states. Lawsuits related to the redistricting process have
already been filed in 28 states so far, said Justin Levitt, a professor at
Loyola Law School who studies redistricting and whose Web site tracks the cases.
“The sheer volume of litigation is pretty amazing,” said Professor Levitt,
adding that with cases resolved in six states, active cases remain in 22 states,
dealing with Congressional redistricting in 16 and with the districts of state
lawmakers and other districts in the rest. “Every 10 years, redistricting
litigation joins death and taxes as a virtual certainty.”
In a new development this year, Texas, one of several states with a history
of discrimination that must get approval for its new districts under the Voting
Rights Act, chose to go straight to federal court instead of simply asking the
Justice Department to sign off on its new maps, as has been done in the past.
This is the first time since the Voting Rights Act passed in 1965 that a
Democratic administration is in the White House at the time of redistricting.
Texas gained four seats in Congress because of a population boom fueled
largely by the growing number of Hispanic residents, but the new map passed by
Republican lawmakers and signed into law this summer by Gov. Rick Perry is
unlikely to empower minority voters in more than one of the new districts,
opponents have charged in court.
Texas has a history of protracted redistricting battles, and officials there
said they hoped to save time by going straight to court. But Judge Orlando L.
Garcia of Federal District Court in San Antonio wrote that the state’s choice had probably slowed things down, “possibly causing
delays in the 2012 electoral process.” But state officials noted that since the
Justice Department said last
month that it would oppose Texas’s plan, going to court first made sense.
Now, with candidates set to begin filing papers next month to run for office,
Judge Garcia has scheduled a hearing to consider an interim court-ordered map to
allow the election to proceed.
Republicans are largely driving the redistricting process this year, since
their sweeping gains last November in state legislatures and governors’ mansions
across the country gave them the power to unilaterally draw four times as many
Congressional districts as the Democrats can. In many states, the Republicans
are using that power to help them hold on to the dozens of seats they picked up
from the Democrats in last year’s elections, often by tweaking their contours to
add more Republican voters to those districts.
The newly drawn districts will probably not give the Republicans a net gain
of many seats, according to a forecast by David Wasserman, the House editor of
the Cook Political Report. But the changes will help them hold on to many of the
gains they made last year by giving many swing districts now held by Republicans
an extra cushion of Republican voters. “Republicans are shoring up dozens of
otherwise vulnerable freshmen and endangered members — and that’s a huge
advantage heading into 2012,” Mr. Wasserman said.
Professor Levitt put it another way. “If 2010 was a wave election,” he said,
“then right now they’re furiously building a sea wall to stop the retreat of
that wave.”
The lawsuits are the latest stage of a process that sets off frantic
political jockeying every decade as incumbents try to protect themselves.
In Rust Belt states that are losing seats because their population growth
lagged the rest of the nation’s, a game of political musical chairs is being
played, in which incumbents try to make sure they still have a seat to run for
when the redistricting music stops. In states gaining seats, mainly in the Sun
Belt, the parties in power try to solidify their positions.
Members of Congress scrutinize every block that is drawn in or out of their
districts, as shown in a series of e-mails between Texas politicians and
redistricting officials that were released as part of a lawsuit. Representative
Kenny Marchant, a Republican, wrote asking that his district be redrawn to
include a school where his “grandbabies go.” Republican officials wrote that
Representative Lamar Smith wanted his district redrawn to include the San
Antonio Country Club.
Many of the e-mails show that Republicans were trying to gauge what
percentage of the voters in the new districts voted for Senator John McCain in
the 2008 presidential election, to measure how strongly Republican they are.
In Texas, Republicans are accused of diluting the Hispanic vote, which tends
to favor Democrats, to create as many Republican districts as possible. It is
just the opposite in Nevada, where Democrats in the Legislature were accused of
proposing a redistricting plan that divided the Hispanic vote among more
districts in order to create as many Democratic seats as possible.
Nevada, which has two Republican members of Congress and one Democrat, is
gaining a seat. Democrats there drew a map that would have given them three
Democratic-leaning seats — in part by dividing Hispanic voters among several
districts. Mr. Sandoval, a Republican, vetoed their plan in May,
complaining that no district had a Hispanic majority.
“With Hispanics accounting for 46 percent of the total population growth in
our state over the last 10 years, this transparent effort to avoid creating even
one additional district where this community would be likely to elect its
candidate of choice is simply not acceptable,” he wrote.
The power of creative cartography is clear in two states: Illinois and North
Carolina. In Illinois, which is losing a seat and where Democrats controlled the
redistricting process, the new map is likely to favor 11 Democrats and 7
Republicans, according to a forecast by the Cook Political Report — a reversal
from the current delegation, which has 11 Republicans and 8 Democrats.
In North Carolina, where Republicans won control of the legislature, and thus
the redistricting process, for the first time since Reconstruction, the new map
will probably help elect 9 to 10 Republicans, the forecast found — a reversal
for a delegation that now has 7 Democrats and 6 Republicans.
The state many people are watching this year is California, where, thanks to
a voter-approved initiative, the district lines were drawn by an independent
commission. While lines were often drawn to protect incumbents in both parties —
leading to odd districts that some people joked were contiguous only at low tide
— the new lines are expected to be much more competitive, although Democrats are
seen as likely to gain a couple of seats.
The challenge the new maps pose for some incumbents has drawn criticism from
officials in both parties. A lawsuit filed by Republicans charges that the maps
violate the Voting Rights Act by eliminating some majority black districts in
south Los Angeles.
Kathay Feng, the executive director of California Common Cause, who helped
lead the fight for the independent commission, said the lawsuit was a cynical
attempt to get a more favorable map. “This is night and day from what we had
before, which was a dog-and-pony show where the Legislature pretended to have
negotiations,” Ms. Feng said. “What they really did was to entrench themselves.”
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