States are Months away from getting the Census Data, Sept. 31st, 2021, they need to Draw New Political Maps, but Courts are already filling up with Lawsuits Challenging the Redistricting Process.

One of the Democratic Party's most Prominent Lawyers quickly filed Three Lawsuits in States where neither Republicans nor Democrats have Full Control over the Redistricting Process, in Preparation for Court Action to Resolve potential Impasses over New Maps. Alabama and Ohio are Suing the Census Bureau over its Delayed Timeline for giving the States Data they need to Draw Maps.

New York is even contemplating Legal Action after the Census Count showed it Missed-Out on an Extra House Seat by just 89 People. They should ask the Court for the Time that was Stopped from the Count by Trump, to continue Counting. The problem is Not get the District Data to find out where to Count until September.

Every Redistricting Cycle brings a torrent of Litigation over the Country's Political Boundaries, which can play an outsized Role in determining which Party Controls the House of Representatives and Statehouses around the Country. But this year, a Confluence of Forces, including: the Census Delays; Pending Federal Legislation about Redistricting; and Major Supreme Court Rulings earlier in the Decade, could Transform that steady stream of Lawsuits into a Downpour. Combined with the Compressed Timeline for making New Maps, the Litigation Promises to make Redistricting a more Chaotic and Unpredictable Affair in 2021 and 2022.

"We will see a lot of lawsuits," said Kathay Feng, the National Redistricting Director at the Good Government Group, Common Cause, “is always a breeding ground for people who are discontent with the results.” But the Litigation is starting well before the Results are Clear, and what is unusual this year, is the Focus on exactly what Data is used and when it is Released.

The Delay(s) has Upended the Redistricting Process in Dozens of States that have Deadlines that are Incompatible with the New Release Calendar, which has sent States scrambling to the Courts for Relief. The Delay could also have a Downstream effect on Lawsuits that Challenge the eventual Map Lines once they’re drawn.

“There’s a decent chance that a number of them won’t get resolved before the 2022 election,” said Jason Torchinsky, who is General Counsel to the National Republican Redistricting Trust. “So the courts are going to either have to basically say ‘you filed late and I can’t issue any orders that affect 2022,’ or a court is going to have to really rush through to change something if it wants to affect 2022.”

So far, California asked for and Received a Redistricting Extension from State Courts last year, while Michigan Redistricting Officials recently asked Courts to Extend their Redistricting Window. Other States have Sued the Census Bureau to try to Force an Earlier release of Redistricting Data.

Ohio was the First State to File a Case, which was Dismissed by Federal District Court, a Decision the State Appealed. Alabama also filed a Federal Lawsuit challenging both the Release Schedule and the Use of “differential privacy,” a Process that will blur Demographic Data on Small Geographic Levels. The Census Bureau says it is necessary to Protect any One Individual from being Identified, but Mapmakers fear it makes the Data functionally Unusable.

Other States are considering using Data other than the Decennial Count to Draw their Map Lines, including Data from the American Community Survey, another Census Bureau Product that is Independent of the Decennial Count and is based on a Survey instead of a Hard Count, which would almost assuredly spawn Legal Challenges. “It’s not that the ACS data is in itself wrong, but it is like grabbing a pair of sunglasses when you need to read the fine print,” Feng said. “It is not going to give you the sharp focus you need.”

“Courts or other processes are set up to treat that data as authoritative,” said Walter Olson, a Senior Fellow at the conservative Cato Institute who was Appointed a Co-Chair of Maryland Gov. Larry Hogan’s Advisory Redistricting Commission. “If I were a judge, I would be very reluctant to open a door … [that] inevitably is going to invite litigation and disputes, in other states and other census cycles, for a multiplicity of reasons.”

Thirty States have Constitutions or Laws with Clauses Protecting “free and equal” elections, which Anti-Gerrymandering Advocates have used to Fight Partisan Maps in several States, said Ben Williams, a Redistricting Specialist at the Nonpartisan National Conference of State Legislatures. “I would imagine that you'll see more of [those challenges] this decade, and that'll be the biggest change. And then it just becomes a question of, are courts favorable to these claims?”

Democrats have gotten an Early Start on filing Redistricting Lawsuits. Marc Elias, who is the Party’s most Prominent Elections Attorney, and the National Redistricting Action Fund, an arm of the Holder-led National Democratic Redistricting Committee, backed Three Lawsuits in: Louisiana; Pennsylvania; and Minnesota, States where Republicans Control One or Both Houses of the Legislature but Democrats hold the Governorship. The Suits urged the Courts to step in, if or when, there is an Impasse in the Mapmaking Process. “While these are the first lawsuits of this new election cycle, let me make this point: These are not going to be the last,” Elias said at the Tuesday Briefing. “There needs to be a back-stop in place so that there is a court that is ready and prepared to step in and draw the maps to meet the compressed timetable that we are going to see, because of the delay in the release of census data.”

Congressional Democrats are Pushing Two Pieces of Legislation that could significantly Remake the Mapmaking Process, as well as the Court Fights that will follow:

- H.R. 1 (117), Democrats’ sweeping Elections Legislation, includes a Ban on Partisan Gerrymandering.

- H.R. 4, the John R. Lewis Voting Rights Act, would Restore the Preclearance Requirements with a New Formula, that the Supreme Court Struck down in the Shelby County Decision, but said Congress had to come up with a new Formula.

President Biden urged Congress to send both Bills to his Desk in his Speech to Congress earlier in the week, but Sen. Joe Manchin (D-WV) has repeatedly expressed Skepticism about H.R. 1, and the Filibuster also stands in the way, of both given Republican Opposition. But if either piece of Legislation defies the Odds and actually becomes Law, it would Upend the already Unprecedented Redistricting Process.

“That’s the wild card in all of this: Congress could yet change the rules of the road in the next few months,” said Michael Li, Senior Counsel of the Democracy Program at the Brennan Center, a Progressive Think Tank that Supports both Bills. “It would be a major ground shift — for the better — but it would be a major ground shift in an otherwise ominous looking cycle.”










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