Monday, March 28, 2011

Virginia redistricting maps about to be released: will there be litigation opportunities?

As discussed in my primer on redistricting, and the more detailed overview of redistricting from blogger-now candidate Brian Schoeneman, redistricting plans provide ample opportunity for litigation.

UPDATE: For other redistricting posts, primary sources, and other information regarding the Virginia Redistricting process in 2011 please see The Road to Redistricting Litigation in Virginia.
According to one of the more reliable providers of political information, redistricting maps for the Virginia 
House and Senate are going to be released Tuesday, March 29, 2011.

Based on the existing status of federal and constitutional law people looking at these redistricting maps in the hopes of defending them or challenging them in court should look for the following items:

Districts that deviate from the ideal size.

Federal constitutional law allows for state-level districts to deviate from the ideal size by up to 10%. Although districts are allowed to deviate by such a significant margin it is clear from federal law that such substantial deviation is not preferred and in fact if districts can be made much closer to the ideal size the government bears the burden of showing that a more precise plan is inappropriate. In 2011 the House and the Senate have determined the deviations should not exceed 1% or 2% respectively. If the districts do not deviate more than these proposed amounts it is unlikely any redistricting plan could be challenged on these grounds. The only instance in which such a challenge might be appropriate is if only a handful of districts come close to the threshold deviation amount, and each of those districts contains an usually high number of minorities.

Districts that are not contiguous.

This should be easy. All districts are expected to be contiguous. Aside from those instances, such as on the Eastern shore, where a body of water separates a sparsely populated landmass from the remainder of Virginia, every district will be expected to be contiguous. If any district is not contiguous, expect that someone will feel disenfranchised and litigation will ensue.

Districts that are not compact.

Districts must be compact. Compactness is a very subjective requirement. Any district that appears to snake along to barely connect differing communities is reasonably subject to challenge.

Districts that disenfranchise protected classes.

This also is a slightly amorphous concept. Districts must not disenfranchise protected classes. For example, minority communities must not have their votes diluted by spreading them across multiple districts, when it is clear they make up a similar contiguous community. At the same time, minority communities must also not be packed into districts to prevent them from having any effect outside of their clearly politically segregated districts. It is a difficult task to neither dilute the power of protected classes, nor segregate protected classes to separate voting districts.

What is most interesting about these constitutional and federal statutory protections, is the preclearance requirement with the US Department of Justice under the Voting Rights Act. Unlike in 2001, 1991, and 1981, 2011 will be the first time in US history in which voting rights act preclearance must go through a Democratic administration in the year following the census. It will be interesting to see if the Department of Justice under Atty. Gen. Eric Holder imposes greater scrutiny than in the previous three similar instances.

A note on the power of litigation (or lack thereof).

The reader should note that just because a valid lawsuit may be brought, does not mean that the lawsuit will be successful. There is still a preference within the court system not to interfere with redistricting which is considered an inherently political process. The reason, of course, why Virginia redistricting is perhaps more important than in the rest of the country is that redistricting in Virginia affects statewide elections in 2011 where as the rest of the country tends not to have statewide elections in till 2012. Virginia is a test case, and moreover, as Virginia is covered by the voting rights act there is an additional set of eyes on all redistricting plans thereby increasing scrutiny, and increasing the likelihood of identified legitimate litigation opportunities.

My primer:

Mr. Schoeneman’s post:

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