A Virginia lawsuit is just one of 49 ongoing cases affecting House lines, an expert says. For Dems, courts mightier than pen

Democrats, shut out of power in state capitols across the country after a disastrous midterm election, are taking the redistricting war to the courtroom — and they’re on a winning streak.

Democrats have benefited from several high-stakes redistricting decisions in recent weeks, positioning the party to capture a handful of congressional seats and raising the prospect that the maps for several key battleground states will favor the party for the next decade.


In Colorado, a district court earlier this month ruled in favor of implementing a Democrat-drafted congressional map after state legislators were unable to agree on a redistricting bill, putting into law a plan that imperils two GOP-held seats. Republicans have appealed the ruling to the state Supreme Court, which will hear arguments on Dec. 1.

Also this month, a three-judge federal panel halted the GOP-led Texas redistricting plan, which positioned Republicans to capture three of the state’s four new House seats, until a Washington, D.C., court determines whether the map adequately accommodates the state’s Hispanic population. A federal court in San Antonio will craft interim lines for the 2012 election, taking the line-drawing power temporarily out of Republican hands.

And last week, the Arizona Supreme Court reinstated the top official on the state’s independent redistricting panel, who had been impeached by state GOP lawmakers just days earlier after drafting a congressional map that made it possible for Democrats to gain two seats.

Redistricting-related courtroom battles are nothing new, but for Democrats they present an important opportunity, giving the party the ability to combat Republicans in a year when the GOP will dominate the line-crafting process. Republicans control the redistricting process in 18 states; Democrats wield redistricting power in six states. Other states have independent commissions or have split-party control.

“I’d say, in a lot of ways, Democrats have a lot more to gain in these cases because in a lot of states, they aren’t in control,” said Jason Torchinsky, a Washington-based Republican attorney who served as a top counsel for President George W. Bush’s reelection campaign. “In a lot of ways, I feel Democrats have a lot more to gain by fighting harder.”

Democrats say the legal victories reflect years of planning, much of which began well before the 2010 elections, when Washington attorneys at the highest levels of the party’s establishment mapped out state-by-state legal strategies.

“Redistricting starts as a political process — and when it doesn’t work, it becomes a litigation process,” said Marc Elias, a veteran Washington-based Democratic attorney who has been helping to lead the party’s redistricting efforts. “What we’ve learned from past cycles is to be as prepared as possible, and I think you’ve seen that in a handful of states that have gone our way.”

When Democratic attorneys sat down in 2009 to assess the party’s approach to redistricting, those involved in the process say, they had only a fuzzy idea of what the playing field would look like. But seated together at the Perkins Coie law firm in downtown Washington, they set out to answer key questions, including where the party’s legal forces should focus their time and what legal issues would most likely arise. The discussions were coordinated by the National Democratic Redistricting Trust, a group that is helping to fund the party’s legal costs.

After the midterm elections, the attorneys refined their thinking, placing states into three categories: those where Democrats controlled the mapping, those where Republicans wielded the pen and those where neither party had an advantage.

“At the national level, a team of lawyers have been working on redistricting for quite some time,” said Gerald Hebert, a longtime Democratic election attorney. “We learned about what the issues would be.”

The list of those waging the fight reads like a who’s who of Democratic legal power players, including Paul Smith and Michael DeSantis of Jenner & Block, Kevin Hamilton and Elias of Perkins Coie, and Hebert. Bob Bauer, a Washington attorney who went on to serve as White House counsel, was involved in the early talks.

“There have been a series of wins, and I think it’s attributable to the fact that there are experienced attorneys involved,” said Hebert, who served as a top redistricting attorney for House Democrats during the last round of line-drawing.

Democrats aren’t finished in court either. Last week, Hebert filed a lawsuit asking a federal court to craft Virginia’s congressional lines because state lawmakers failed to pass a plan this year — a maneuver designed to take the redistricting pen out of the hands of Republicans, who control the process in the state.

The Virginia lawsuit is just one of 49 ongoing cases affecting House lines, according to Justin Levitt, a Loyola Law School associate professor and election law expert who is tracking the redistricting process. To date, 21 states have finalized their congressional redistricting plans, with another five waiting for preclearance from the Justice Department, which is tasked with ensuring that certain states follow the Voting Rights Act in drawing districts.

Democrats are playing the legal game with a significant resource advantage over their GOP counterparts. While Republicans have founded several groups designed to help fund redistricting litigation, party attorneys now say none has been able to match the fundraising power of the National Democratic Redistricting Trust.

Brian Smoot, executive director of the trust and a former Democratic Congressional Campaign Committee political director, declined to comment on how much money the group aimed to raise, but House Democrats have said they plan to funnel as much as $12.5 million its way.

In Texas, which has yielded an array of lawsuits this year, the party has been aided by advocacy groups like the Mexican American Legislative Caucus and the Mexican American Legal Defense and Educational Fund, which joined in legal actions seeking to reverse the Republican-drawn map, which the organizations argue will dilute Latino voting strength.

Republicans say the success of the National Democratic Redistricting Trust offered a lesson for Republicans: Work harder in next decade’s round of redistricting.

“Democrats have more resources — they have more money,” said E. Mark Braden, a political attorney at the white-shoe Washington firm Baker Hostetler. “The fact that they have a well-funded entity in litigation certainly helps.”

“My hope,” said Torchinsky, “is that next time, Republicans set up structures that parallel what Democrats have done this time.”

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