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By Marilyn Odendahl

The Indiana Citizen

January 2, 2024

After reviewing two U.S. Supreme Court rulings in 2023 considered to be redistricting victories against political gerrymandering, Common Cause admitted afterwards that it had been “too pessimistic” initially about the cases.

However, the watchdog group, which focuses on government reform and fair elections, said another ruling from the 8^th U.S. Circuit Court of Appeals in a dispute over Arkansas redistricting maps threatens to block more lawsuits against gerrymandering as well as efforts to protect voting rights.

In other words, the fight against the partisan redrawing of political maps that threaten to disenfranchise voters is an ongoing battle in the nation’s courts.

The three crucial redistricting cases were analyzed during Common Cause Indiana’s recent webinar about voting rights, ethics and the U.S. Supreme Court. Those discussions at the webinar occurred only two months after Common Cause issued a report on community redistricting nationwide that rated individual states – a report that gave Indiana a “D” for its efforts.

Meanwhile, Indiana’s attorney general and several groups with Indiana ties also weighed in on those redistricting cases in amicus curiae briefs.

The rulings in Moore v. Harper and Allen v. Milligan, issued by the U.S. Supreme Court in June 2023, upended the congressional maps drawn by the North Carolina and Alabama legislatures, respectively. Both state legislatures presented unique arguments that Common Cause worried would sway the court’s conservative majority to rule in their favor.

However, in Moore, a comfortable 6-3 majority rejected the “independent state legislature theory” and ruled the North Carolina Supreme Court has the power under the state’s constitution to set aside the congressional map drawn by the state legislature. Similarly, in Allen, a narrow 5-4 majority found Alabama’s new congressional map likely violated Section 2 of the Voting Rights Act of 1965, dismissing the legislature’s “race-neutral argument” that the computer-generated maps could not run afoul of federal law because they were drawn without any consideration of race.

Dan Vicuna, director of redistricting and representation at Common Cause, believes voting rights advocates should take a moment to enjoy the two wins.

“I think there is room to exhale and we should appreciate the victory of the hard work of the people who made it happen,” Vicuna said. “But, of course, there’s always vigilance that we have to maintain.”

Vicuna was one of the speakers during the Indiana webinar on redistricting. He was joined by Julia Vaughn, executive director of Common Cause Indiana, and moderator Ami Gandhi, director of strategic initiatives and the Midwest voting rights program at the Chicago Lawyers’ Committee for Civil Rights.

Despite the success at the U.S. Supreme Court, another threat to voting rights has arisen.

Plaintiffs in Arkansas State Conference NAACP et al. v. Arkansas Board of Apportionment et al., challenged the state’s House redistricting plan, asserting the new districts diluted Black votes in violation of Section 2 of the Voting Rights Act, which prohibits practices or procedures that discriminate on the basis of race, color, or other factors. In November 2023, the 8^th Circuit upheld the lower court’s ruling that only the attorney general of the United States – not private citizens – can sue to enforce section 2.

Gandhi, of the CLCCR, pointed out the ruling will not have an immediate impact on Indiana because the state is part of the 7^th Circuit Court of Appeals, which has not adopted the Arkansas conclusion. Still, advocacy groups are concerned about what could happen in future cases.

“There were some signs of progress in terms of some of the very recent voting rights Supreme Court decisions. And then at the same time, the trajectory over the last 10 plus years has certainly been disruptive for voting rights,” Gandhi said. “So it makes me nervous for sure to have such a wild and poorly reasoned decision by the Eighth Circuit be getting further traction consideration by the higher court.”

U.S. Supreme Court victories

The partisan and racial gerrymandering fights in North Carolina and Alabama, respectively, had the potential to have “significant consequences” across the country, Vicuna said.

In Moore, after the North Carolina Supreme Court struck down the legislature’s congressional map in 2021, the North Carolina Republican legislators dusted off what Vicuna called the “dangerous, radical idea” of the “independent state legislature.” Under this theory, the U.S. Constitution prohibits state courts from exercising normal oversight when state legislatures are making rules about federal elections.

Many individuals and groups, especially conservative Republicans, filed amicus curiae (“friend of the court”) briefs, urging the Supreme Court to reject the legislature’s argument. A ruling in favor of North Carolina, Vicuna said, not only would have given state legislatures “unchecked power to manipulate districts” but also would have enabled them to establish voting rules for federal elections without interference from state courts or, even possibly, a governor’s veto.

More troubling, Vicuna noted, the court seemed primed to accept the independent state legislature theory because of the connection some of the justices have to the development of the idea.

The theory, as described by Vicuna, was a “political Hail Mary pass” thrown by Republican presidential candidate George W. Bush’s lawyers during the 2000 post-election fight in Florida. They made the argument that Florida legislators could appoint whomever they wanted as electors, which would have given Bush the presidency. (Bush ended up winning the presidency anyway, after the U.S. Supreme Court ruled 5-4 to end a torturous recount in the Florida race, thereby ending the election in Bush’s favor.)

The theory got a little traction in the Supreme Court when William Rehnquist, then the chief justice, accepted the idea. More worrisome, Vicuna said, was that this court “seemed primed to accept” the independent state legislature theory, because three members of Bush’s legal team now sit on the Supreme Court: Chief Justice John Roberts, and associate justices Brett Kavanaugh and Amy Coney Barrett.

“As it turned out, we were too pessimistic,” Vicuna said of the decision in Moore. “It was really a complete victory.”

In Allen, the Alabama legislature defended its congressional redistricting, asserting the districts could survive a Section 2 challenge because race was not among the criteria used when the map was drawn.

Vicuna said civil rights advocates were concerned the Supreme Court would use the case to dismantle more protections in Section 2 of the Voting Rights Acts. If the justices had adopted the race-neutral argument, he said, plaintiffs in future voting rights cases would have had the “really difficult burden” of showing discriminatory intent.

Instead, the Supreme Court sided with the advocates.

“They rejected outright the race-neutral argument,” Vicuna said. “They affirmed that race can be considered in redistricting, because it’s been pretty essential to ensuring adequate representation for communities of color.”

Indiana joins court briefs

Indiana was not a party to either case, but it was present among the amici briefs.

In Allen, Indiana Attorney General Todd Rokita joined 13 other states in filing an amicus brief supporting Alabama. They argued, in part, that ruling for the plaintiffs could to lead to mandates for proportional representation and, quoting Chief Justice Roberts from a 2006 decision, “put federal courts in the ‘sordid business’ of ‘divvying us by race.’”

Indiana did not join the brief filed by 12 states supporting North Carolina in Moore.

However, Women4Change Indiana filed a brief in Moore, arguing against the independent state legislature theory.

Also, the Conference of Chief Justices filed a brief in the case while Indiana Chief Justice Loretta Rush was president of the group. The brief, written by current and former chief justices from Delaware, Indiana, Missouri, North Dakota, Texas, and Utah, refrained from taking a position in Moore. Rather, the conference pushed back on the independent state legislature theory, asserting the Election Clause in the U.S. Constitution does not bar state courts from reviewing state laws that govern federal elections.

In the 8^th Circuit case, Indiana was among 14 states to file a brief in favor of Arkansas. The attorneys general argued, in part, that recognizing a private right of action in section 2 would intrude “upon State sovereignty in a way that neither the Tenth Amendment nor the VRA can bear.”

Moreover, the amici states asserted they have incurred heavy costs, reaching into millions of dollars, defending against this “often complex federal litigation” filed by private plaintiffs. The money to fight these lawsuits, they said, is siphoned from funding other “worthy causes” like voter-registration and election-day efforts.

“Money spent defending section 2 litigation could be spent elsewhere to achieve the VRA’s statutory purpose to increasing registration and turnout of voters of color,” the states argued in their brief.

Redistricting case in Anderson

Common Cause Indiana and other groups filed a lawsuit in June 2023 against the city of Anderson Common Council for failing to redraw its districts after the 2020 U.S. Census. The plaintiffs assert the council districts are “severely malapportioned” in violation of state law and the 14^th Amendment’s equal protection clause.

Since the Southern Indiana District Court denied the city’s motion to dismiss the case, the parties have met for settlement discussions but no resolution has yet been reached.

“This should be a very simple case,” Vaughn said during the webinar. “It’s about malapportionment. It’s about the math,” Vaughn said during the webinar, noting the districts have not been redrawn in decades and are “grossly unequal.”

“The number of people in the districts should have been settled a long time ago,” Vaughn added, “but this case has given me an up close and personal look at incumbent protection when it comes to redistricting.”

Indiana’s poor grade

The “Community Redistricting Report Card” issued by Common Cause in October 2023 graded each state on its redistricting efforts and new political maps redrawn with data from the 2020 U.S. Census.

Indiana received an overall grade of D. The report found a “clear partisan gerrymander,” noting the GOP supermajority in the legislature “ultimately drew and passed maps that focused primarily on maximizing the number of districts that Republicans would win.” It also said that the redistricting process in Indiana “was plagued by secrecy and indifference to public input” and found that the Indiana legislature “erected structural barriers” that made it more difficult for the public to participate in the redistricting process, including holding only a small number of public hearings at inopportune times, such as in the middle of a weekday.

However, the Common Cause report did note one bright spot for the state: It said greater participation at public hearings by groups such as the Indiana Citizens Redistricting Commission, organized by Common Cause Indiana and comprised of an equal number of Democrats, Republicans, and independent voters, helped provide a more vocal presence for fair map advocates than in previous redistricting efforts.

Vaughn also highlighted some successes in local communities around the state.

The cities of Goshen and Bloomington and Monroe County used citizen commissions to redraw their local districts, Vaughn said. Also, residents in Valparaiso, aided by Common Cause Indiana, demanded the city council allow for public input in redistricting and submitted their own maps. Not only was the city’s redistricting consultant, former House Speaker Brian Bosma, amazed, Vaughn said, but Barbara Domer, one of the citizen map-drawers, was inspired to run for public office. Despite being a political newcomer, Domer won the District 3 seat on the Valparaiso City Council in the November 2023 election.

“That’s really inspiring when people not only respond to your call to get engaged in redistricting or some issue, but if that spurs them to then get elected to public office, that’s even better,” Vaughn said.

Common Cause advocates for independent commissions to help in the redistricting process, but Vicuna said to be successful, the commissions must be “truly independent.” He pointed out that the independence of some commissions is questionable, because elected officials either appoint the commission members or they review and revise the maps the commission creates.

“The more independent models provide better outcomes in terms of representing communities,” Vicuna said. “(They) are more transparent, are truly engaged in a good faith effort to do right by as many communities as possible, while balancing a lot of very complicated interests.”

Dwight Adams, a freelance editor and writer based in Indianapolis, edited this article. He is a former content editor, copy editor and digital producer at The Indianapolis Star and IndyStar.com, and worked as a planner for other newspapers, including the Louisville Courier Journal.