The battle over the once-a-decade realignment of legislative and congressional districts is underway across the country even before new maps have been drawn, with lawsuits filed in nearly a dozen states, signaling how intense the fight for partisan power in the states and Congress will be in the coming year.
Many of the early moves have been made by Democrats, who are scrambling to make up a historic deficit when it comes to the bare-knuckle redistricting process that Republicans used in 2011 to cement their dominance at the state and national level.
At stake is how voters will be divided into individual districts for the next decade, and which party will emerge with the greatest advantage. Fierce fighting over the maps could delay that process in many states — potentially upending 2022 campaigns midstream.
The National Democratic Redistricting Committee, an advocacy organization founded by former attorney general Eric Holder, filed lawsuits in Louisiana, Minnesota, and Pennsylvania in April, as soon as the Census Bureau released data indicating which states would gain and lose congressional seats. The suit seeks to ensure how courts play a role in the process, part of an early effort to shape the rules that will govern how maps are drawn.
“There is heightened attention and awareness of the damaging effects of gerrymandering, and you’re seeing an increase of litigation as a result of the voter suppression and other election laws passed by Republicans as they attempt to hold on to power,” said Kelly Ward Burton, the group’s president. “We are fighting for fair maps that reflect the will of the voters, and if Republicans attempt to ignore this and gerrymander their way to power, we will be ready to sue.”
Other lawsuits over the map-drawing procedures have popped up in other states, providing an early glimpse at efforts on the left to blunt the GOP advantage.
In Wisconsin, for example, a citizens group filed a complaint against Republican state legislators over their decision to hire private attorneys for possible lawsuits related to redistricting. The Wisconsin Supreme Court last month sided with the GOP.
“Redistricting has become entrenched warfare where lawmakers exert enormous effort and expense to gain an inch,” said Michael Li, senior counsel at Brennan Center for Justice, a public policy institute that is part of New York University Law School. “Lawmakers have always attempted to game redistricting, but we’re seeing a lot of new tactics this decade because so much is on the line.”
The process of setting district boundaries this year comes amid a national fight over voting rules, an issue that Democrats hope will bring new energy and resources to the arcane redistricting process.
Voting rights advocates warn that the redistricting battles could play into future efforts to challenge election results, as former president Donald Trump attempted to do in 2020, by shaping who is in control of state legislatures and Congress when the 2024 presidential results are certified.
Democrats were caught off guard a decade ago when Republicans, who had shored up their majorities in state legislatures during the 2010 Tea Party wave, used their power to shape GOP-friendly districts in battleground states such as Pennsylvania, Michigan, Wisconsin, North Carolina, and Ohio. The new congressional districts gave Republicans the power to stymie much of then-President Obama’s policy agenda.
Republicans say they plan to make the most of their current dominance.
Adam Kincaid, the executive director of the National Republican Redistricting Trust, has said his group is preparing for “a decade of even more litigation,” and to challenge maps it views as unfairly tilted to the left.
“There will definitely be more redistricting litigation this decade,” he said. “Republicans will be playing more defense than offense because we have significantly more redistricting control than Democrats.”
Every state has different criteria for drawing the maps for state legislatures and House seats. Since the last redistricting in 2011, several states have moved away from a partisan legislative process and delegated the work to commissions, though some serve only in an advisory role and their maps are not binding.
Of the 37 states where elected officials will ultimately decide the shape of congressional maps this year, 20 are fully in Republican control, eight are held by Democrats, and nine are split.
Redistricting is historically an opaque process, despite its massive ramifications for US politics. Democrats’ tenuous hold on the US House has raised the stakes even higher — Republicans need to flip only five seats to take back the House and block the Biden White House’s legislative agenda in the second half of his first term.
Democrats are already at a disadvantage because of population shifts. Several GOP-controlled states, including Texas, Florida, and Georgia, are gaining seats in Congress, while Democratic-run New York, Illinois, and California are losing them, according to census data released earlier this year. (A more detailed set of numbers is expected by mid-August.)
In 2011 redistricting, Republicans who had won control of a majority of state legislatures a year earlier used their power to pack Democratic voters into fewer districts and protect their GOP majority.
“The gerrymandering that we saw last cycle was unprecedented in their sophistication and how long they endured and defined the last decade of our politics. The Republicans were able to dominate the process without Democrats fully able to understand what happened until it was done,” said David Daley, an author who has written two books on redistricting.
But, Daley said, “that won’t be the case this time. Every twist and turn in every state is going to be contentious and chaotic and contested.”