The United States Constitution mandates a census every ten years to count every United States resident. The next census will occur next year, in 2020. The political redistricting process, whereby the boundaries of political districts (such as congressional, state legislative, school, etc.) are redrawn to reflect changes in population, follows closely the publication of the census results.
The United States Census Bureau will deliver population counts to the President by December 31, 2020; the Bureau will then release counts to the states for redistricting purposes by April 1, 2021. This means government bodies in Mississippi will begin the next round of redistricting in earnest within the next two years.
Precursors to the redistricting process in Mississippi have already begun. For example, earlier this year the legislature passed, and Governor Phil Bryant signed, House Bill No. 914, which prevents county governments from altering precinct boundary lines until the 2020 census results become available.
When state and county leaders begin meeting to consider redistricting based on the new census data, they will face a dramatically different landscape as it relates to federal election law compared to the past.
After the Voting Rights Act of 1965 was enacted, certain states, including Mississippi, and local governments were required to receive “preclearance” from the U.S. Department of Justice to ensure any proposed changes to voting laws or practices did not deny or abridge the right to vote on account or race. In 2013, however, in Shelby County v. Holder, the United States Supreme Court struck down the preclearance requirement as outdated, meaning for the first time in decades, Mississippi and its political subdivisions will not be required to preclear redistricting plans.
Just last month, the United States Supreme Court decided Rucho v. Common Cause and held that claims of partisan gerrymandering, i.e., that maps were redrawn to favor one political party over another, presented political questions beyond the reach of federal courts. The court distinguished partisan gerrymandering from other redistricting-related claims, such as issues involving the principle of “one person, one vote” and racial gerrymandering, over which federal courts have authority to adjudicate. The court added that other avenues of relief were available for alleged partisan gerrymandering, including Congressional action, state redistricting commissions, and suits in state courts.
Redistricting has long been a lightning rod issue, and despite the changes in federal law, legal fights over redistricting are likely to remain. Many well-funded advocacy groups, such as The National Democratic Redistricting Committee led by former United States Attorney General Eric Holder and supported by former President Obama, have made redistricting following the 2020 census their top priority. Thus, with the census just around the corner, legal fights over redistricting should also be expected in the not too distant future.
» Spencer Ritchie is an attorney in the Jackson office of Forman Watkins & Krutz LLP where he practices in the areas of general and commercial litigation and political law. Additional information is available at www.formanwatkins.com.
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