“We will see a lot of lawsuits,” said Katai Feng, national redistribution director at the good government group Common Cause, laughing at the question of how many lawsuits this redistribution cycle will have. Redistribution, she said, “is always a breeding ground for people who are dissatisfied with the results.”
But the lawsuit began long before the results became clear, and what’s unusual this year is the focus on exactly what data is used and when it’s published. Data from the decade-long census have been delayed for months, in part due to the pandemic and the Trump administration’s processing of the census.
The distribution data ̵
This delay has accelerated the redistribution process in dozens of countries, which have deadlines that are incompatible with the new release calendar, which has sent countries arguing in the courts for relief.
The delay may also have an effect on claims that challenge any lines on the card once they have been withdrawn.
“There is a good chance that a number of them will not be resolved before the 2022 election,” said Jason Torczynski, who is a general adviser to the National Republican Redistribution Trust. “So the courts will either have to say basically ‘you’re late and I can’t issue orders that affect 2022,’ or the court will really have to rush to change something if it wants to affect 2022.”
So far, California has asked for and received an extension of redistribution from state courts last year, while Michigan redistribution officials recently asked courts to extend their redistribution window. Other countries have sued the Census Bureau to try to force earlier publication of redistribution data.
Ohio was the first state to file a lawsuit that was rejected by the federal district court, a decision the state is appealing. Alabama has also filed a federal lawsuit, challenging both the release schedule and the use of “different confidentiality,” a process that will obscure demographic data at small geographic levels. The Census Bureau says it is necessary to protect a person from identification, but card makers fear it makes the data functionally unusable.
Other countries are considering using data other than the number of decades to draw their lines on a map – including data from the American Community Survey, another product of the Census Bureau that is independent of the number of decades and is based on a survey instead of of a solid census, which would almost certainly pose legal challenges.
“It’s not that the ACS data itself is wrong, but it’s like getting a pair of sunglasses when you have to read the fine print,” Feng said. “It won’t give you the sharp focus you need.”
New York Governor Andrew Cuomo also said he was “considering legal options” after his country lost an additional 89 seats in the House on Monday. But courts have not acted in similar cases in the past, redirected lawyers say, noting that the pandemic has introduced a new dimension of uncertainty.
“Courts or other trials are designed to treat this data as credible,” said Walter Olson, a senior fellow at the Cato Conservative Institute who has been appointed co-chair of the Maryland Governor’s Redistributive Advisory Committee. “If I were a judge, I wouldn’t open a door very much … [that] will inevitably invite lawsuits and disputes in other states and other counting cycles for a variety of reasons. “
From now on, the major decisions of the Supreme Court issued over the last decade will pose challenges to the cards themselves: Shelby County vs. Holder, which effectively abolished the requirement for some states to have clean lines of cards from the Department of Justice or federal judges to ensure that there is no racial discrimination; and Rucho vs. Common cause, which held that the federal judiciary had no jurisdiction for police guerrilla manipulation, as opposed to racial manipulation.
“I think Shelby County’s decision is a real hurdle,” former Attorney General Eric Holder, who is now leading the Democratic Party’s redistribution efforts, said at a briefing on Tuesday. “It takes away a legal instrument that Biden’s Department of Justice could have to protect voters.”
Plaintiffs can still file racialization cases in federal courts, but the success of state challenges to guerrilla cards over the past decade may point to the future of case redistribution.
Thirty states have constitutions or laws protecting “free and equal” elections that anti-Gerism advocates use to fight guerrilla cards in several states, said Ben Williams, a redistribution specialist at the non-partisan National Conference of State Legislatures. “I imagine you will see more [those challenges] this decade and this will be the biggest change. And then it’s just a question of whether the courts are favorable to these claims? “
Democrats began filing redistribution early. Mark Elias, the party’s most prominent election advocate, and the National Redistribution Fund, part of Holder’s National Democratic Redistribution Committee, backed three lawsuits in Pennsylvania, Minnesota and Louisiana, states where Republicans control one. or both houses of the legislature, but the Democrats hold the governorship. The cases called on the courts to intervene if (or when) there is a dead end in the mapping process.