This article comes from Krista Brewer of the Political Peach News
The political map drawing is over. The ink is dry on new congressional, state house and senate districts, and most local redistricting is complete. Candidates have qualified to run in the new districts. The next phase of the battle over the Georgia redistricting maps is now in the federal courts. As with many lawsuits, we’re in for protracted legal twists and turns, but we have some reason to be optimistic. And beyond the litigation, there are two other voting reforms that can affect redistricting longer term: new federal legislation and independent redistricting commissions.
When the 2020 census figures were released last fall, Georgia’s population had increased by almost one million people of voting age, which required rebalancing legislative districts to approximately equal numbers of voters. But this increased population is almost entirely made up of people of color with their overwhelming propensity to vote Democratic. Yet Democrats will almost certainly lose one representative in Congress due to the borders of the newly configured congressional districts. And state Democratic candidates are likely to make only slight gains in the state house and senate. These results are the consequence of Black voters either being packed into certain districts with many more than 50% minority voters, or diluted among majority white districts such that they cannot elect candidates of their choice, despite their overall growth in population. If proven to be the case, either is likely a violation of the federal Voting Rights Act (VRA).
As soon as the new maps were signed into law, five lawsuits were filed in federal court. All five suits allege violations of the VRA and/or violations of the U.S. Constitution. Three of the lawsuits, Pendergrass et al. v. Raffensberger, Alpha Phi Alpha Fraternity Inc. et al. v. Raffensberger, and Grant et al. v. Raffensberger allege VRA violations affecting different districts in Georgia. These three cases have been assigned to a single judge, Judge Steve Jones. A fourth suit, Georgia NAACP et al. v. State of Georgia et al. alleges VRA violations and 14th and 15th Amendment violations in the congressional, state house and senate maps. Finally, Common Cause and League of Women Voters of Georgia v. Raffensberger focuses only on the congressional maps, challenging the new boundaries of the 6th, 13th and 14th congressional districts as racially gerrymandered. This good article goes into more detail about the lawsuits and problems with certain districts.
The VRA has been a critical tool to help protect voting rights of minorities, but its strength has eroded. This act, which was initially passed in 1965 and has been amended and reauthorized a number of times, was designed to enforce the right to vote guaranteed in the 14th and 15th Amendments to the U.S. Constitution. Part of the VRA prohibits state legislatures from diluting the voting rights of minorities by either packing minority voters into a few districts, or spreading these voters out among numerous districts (referred to as cracking), and thus reducing the ability of minority voters to elect representatives of their choice.
Originally, certain states, primarily in the South with a history of racial discrimination, were required by Section 5 of the VRA to submit any changes to the voting process, including redistricted maps, to the U.S. Department of Justice (DOJ) for preapproval, or preclearance. This ensured that any changes that might dilute minority voting strength could be rejected by the DOJ prior to any elections, rather than requiring minority voters to file costly lawsuits in federal court that might take years and several election cycles before a final court ruling. The Supreme Court ruled this important preclearance procedure of Section 5 to be unconstitutional in 2013 in the Alabama lawsuit, Shelby Co. v. Holder. As a result, the DOJ has decreased oversight of redistricting schemes, and the courts have an increased role. Now, litigation under Section 2 of the VRA or allegations of constitutional violations are the only remaining means to challenge election law changes. The five Georgia lawsuits, and others around the country are in the early stages of a process that will drag into 2023 and possibly beyond.
The first three lawsuits above received an initial favorable ruling a month ago. After several days of testimony, the Court found the challengers’ experts more credible than the state’s experts. In evaluating the challengers’ request to redraw district boundaries and delay candidate qualifying for Georgia’s May 24 primary, Judge Jones issued a lengthy 238 page order with preliminary findings. It stated that the court would likely find Section 2 violations with the Georgia redistricting maps, and that the plaintiffs in each of the first three cases had “substantial likelihood of success” in proving that specific congressional or state house or senate districts were drawn in violation of the VRA. However, Judge Jones denied the request to delay the primary election because of the testimony of Georgia election officials that any changes in the 2022 election calendar would result in significant cost, confusion and hardship. Judge Jones also noted the 2022 U.S. Supreme Court ruling in Merrill v. Milligan, a similar Alabama case involving the same state primary date. In Milligan, the Supreme Court allowed Alabama’s May 24 primary election to go forward despite an Alabama three-judge court’s preliminary injunction ruling that the plaintiffs had a likelihood of success on the merits of their Section 2 of the VRA claim. Read more of the order here.
Other lawsuits related to recent redistricted maps have been filed around the country where judges have thrown out legislatively drawn maps. One difference in some of the cases is that they were filed in state courts. Thirty states have clauses in their state constitutions requiring “free and fair elections” or similar clauses, giving citizens the right to petition their state court for redress of a voting dilution. Georgia is not one of those 30 states.
The Georgia Common Cause lawsuit, filed by the Southern Poverty Law Center, is challenging redrawing of the 6th, 13th and 14th Congressional districts and bears special notice. The complaint in this case is worth reading. It details the long and sad history of voter suppression in Georgia and demonstrates the need for remediation and protections. “I think from the data we show in the complaint, it’s pretty clear that the state legislature unconstitutionally used race to crack Black communities across several districts or to pack them together in one district to deny them equal representation in Congress,” says Jack Genberg, a senior staff attorney for SPLC and lead attorney for this lawsuit.
There have been some efforts in Congress to use federal legislation to protect voting rights. The John Lewis Voting Right Act would strengthen the current VRA and restore the preclearance provision. It has passed the House, but is stalled in the Senate.
“I think, as you see from our lawsuit, as you see from the other lawsuits, there is discrimination occurring against Black voters and other voters of color in the state of Georgia,” says Genberg. “And this is where the lack of federal legislation and federal protections makes communities much more vulnerable. SPLC and other voting rights activists are continuing to defend and advance voting rights at all levels and will do so with every tool available. And we’re hoping that federal legislation and federal protections for voting rights will be restored.”
Another tool for protections is establishing independent redistricting commissions. We have models for these in other states. According to Ken Lawler of Fair Districts Georgia, “The states that had truly independent commissions produced maps this cycle that were more fair. Some states had commissions, but they were made up of politicians, and those broke down along party lines to some degree. But Colorado, California, and Michigan commissions were established with citizens driving them, and they did much better.” So a task for Georgia voters is to advocate for a citizen led, non-partisan redistricting commission for our next redistricting in 2031.
Individuals and organizations in Georgia have stepped forward to advocate for fair maps and to challenge in court the maps that were passed by the legislature. It’s a long process, but we’ll be watching with fingers crossed. In the meantime citizens can continue to put pressure on Congress to pass meaningful voting rights protections. Also, we can advocate for an independent redistricting commission and work for massive voter turnout that can override gerrymandered maps and other voter suppression tactics.