State courts have sped up the redistribution of cases to quick conclusions, frustrating lawyers who want as much time as possible to unearth evidence of illegal gerrymandering.
In two Ohio cases, challengers of a new congressional card giving Republicans a 13-2 advantage only had a week to gather information. They couldn’t file key players, were unable to pierce solicitor-client privilege around the work of GOP consultants, and had to present their case to the Ohio Supreme Court within a month.
âGoing from filing to full disclosure in less than a month is pretty extraordinary,â said Julie Ebenstein, senior voting counsel at the American Civil Liberties Union. “By definition, we will have a limited opportunity to obtain evidence.”
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These limitations were a by-product of the courts trying to balance competing priorities. States must establish filing schedules, election dates, and ensure that only valid votes are counted in state and congressional primaries, some of which cannot be taken until district boundaries are settled. . At the same time, questions about the fairness of the lines must be resolved before confirming the limits that will influence the composition of Congress for a decade.
The delay caused by the pandemic at the US Census Bureau, which has slowed the release of critical demographics, is adding to the time pressure.
The end result puts the challengers at a disadvantage, said Adam Podowitz-Thomas, senior legal strategist at Princeton University’s Electoral Innovation Lab.
Some challengers may have to rely on mathematical formulas to support their claims of partisan bias. Judges tend to give lawmakers the benefit of the doubt, so “if a litigant does not have time to develop the discovery to prove that the map was not drawn in good faith, it is more difficult to overcome it. a judge’s natural bias, “he said.
Mark Gaber, senior director of redistribution at the Campaign Legal Center, has had clients on the losing side of two quick state Supreme Court decisions this cycle. The Colorado Supreme Court received Gaber’s petition challenging the Hispanic representation on the state commission’s congressional map on Oct. 7 and without scheduling evidence gathering, the court approved the map 25 days later.
In November, the Wisconsin Supreme Court blocked a lawsuit Gaber helped bring on behalf of suffrage groups. The judges ruled that they would not hear the partisan arguments of gerrymandering, that the cards should make as few changes as possible, and that lawyers would have 20 days to obtain evidence.
In contrast, in the last round of redistribution, multi-year litigation uncovered details that resulted in victories for the challengers of the map.
For example, a federal court found an unconstitutional gerrymander in Wisconsin when Republicans drew cards with names like “aggressive” to note plans giving the GOP a better advantage; and a federal court ruled the Ohio congressional map unconstitutional when litigation uncovered evidence that Republicans intentionally dug a “chasm” to weaken Democratic power and wrap voters in what the Editors called the territory “dog meat” in Ohio’s largest city, Columbus.
But these victories were short-lived.
The United States Supreme Court ruled that the Wisconsin challengers did not have standing to sue, and in 2019 judges ruled that partisan gerrymandering complaints could not be brought to federal court at all. Now, due to time pressure, the state’s courts are also limiting his ability to obtain evidence, Gaber said.
âYou often find a lot of very important evidence in the discovery that you don’t know existed until you research it,â he said. âSo we’re going to lose a bit of that view in the process which can shed some important light on the intention of lawmakers. ”
So far this cycle, North Carolina has been an exception to the trend.
There, the state’s Supreme Court issued a preliminary injunction and delayed filing deadlines, preventing the state from moving forward with the elections as cases challenging Congressional constituencies go through phases of collection of evidence and arguments.
But even this business is changing rapidly. A three-judge panel held a card hearing this week in Raleigh as there is still a lot of work to be done to prepare for the election. This includes a multi-month process in which secretaries of state update the records of qualified voters.
In Maryland, Robert Popper, senior lawyer for the Judicial Watch group, said his team was in a hurry to file their partisan gerrymandering complaint in state court before Christmas.
If they can’t quickly block the map, which Democrats have vetoed Gov. Larry Hogan (R), Judicial Watch will push for a “full discovery,” Popper said. “We’ll talk to everyone, and I mean everyone.”
The end result of all this rush, Podowitz-Thomas said, could be both less messy and some upheaval if the elections are held below district boundaries that later prove to be invalid.
“We’re going to have a lot of cases where the courts rush the process that just aren’t resolved on time,” Podowitz-Thomas said. âWe just don’t have the time. “
To contact the reporter on this story: Alex ebert in Columbus, Ohio at [email protected]