The partisan gerrymandering case known as Gill v. Whitford that the Supreme Court heard Tuesday is just the beginning of a multimillion-dollar redistricting war between Republicans and Democrats over who gets to draw legislative and congressional district lines in 2021.
The money is being raised through a hodge-podge of legal trusts, tax-exempt groups, and political action committees that in many cases operate outside the federal campaign-finance rules. That means that many donations are not subject to contribution limits or disclosure requirements, thanks in part to a little-noticed and arguably nonsensical Federal Election Commission ruling that in 2010 found that redistricting is not related to federal elections.
“It’s an absurd fiction, but it gives the parties permission to raise unlimited money and to not disclose where that money is coming from,” says Paul Ryan, the vice president for policy and litigation at Common Cause, who weighed in on the matter at the time as counsel to the Campaign Legal Center.
Ironically, although it was Democrats who had asked the FEC to loosen up the redistricting rules, it was Republicans who cashed in on the ruling. Democrats had requested permission for sitting lawmakers to raise unlimited contributions to help pay for legal fees associated with redistricting. The FEC gave Democrats the green light, finding that redistricting is not related to federal elections. Yet in a previous legal tussle with the GOP, the FEC said that “the most important legislative activity in the electoral lives of U.S. House members takes place during redistricting,” which is carried out by state legislators.
That’s cleared the way for a redistricting arms race that cost both parties more than $40 million in the last round of district mapping, which took place after the 2010 census, and could soar into the hundreds of millions this time around as both sides seek to control the process after the next census in 2020.
The latest group to enter the fray is the National Republican Redistricting Trust, a secretive and little-regulated legal trust that has no website and has no plan to disclose its donors, despite pledging to raise $35 million by 2021. The group will serve as a redistricting command central of sorts for GOP leaders and groups, and plans to engage aggressively in lawsuits leading up to and following 2020.
Organizers of the National Republican Redistricting Trust bill themselves as an answer to a Democratic group backed by President Obama and headed by his former attorney general, Eric Holder Jr., the National Democratic Redistricting Committee. That group netted $10.8 million in the first six months of this year, divvied up between a federal PAC and two tax-exempt groups, according to Politico. That group’s agenda includes helping to put elected Democrats in control of state redistricting efforts in 2021, mounting lawsuits to challenge rigged maps, and mobilizing support for redistricting reforms to make the process more independent and transparent.
Then there’s Forward Majority, a new Democratic super PAC—a type of PAC that may raise unlimited contributions—that has pledged to raise $100 million in a dozen states over the next four years. The group will start by spending $1 million in the Virginia House of Delegates race in 2017. Holder’s group has also given $500,000 to the Virginia Democratic Party in advance of that contest.
Still more big money is being hauled in by Republican State Leadership Committee, which has spent about $40 million in each of the last three election cycles on state legislative races. A parallel group, the Democratic Legislative Campaign Committee, has a narrower focus and a smaller budget, having spent less than half that in the same period. Both groups are so-called 527 organizations, which may collect unlimited contributions but must disclose their donors to the Internal Revenue Service.
State legislative contests remain the primary focus of fundraising by groups that care about redistricting, but “a growing field of engagement is on the legal side,” says Matthew Walter, president of the Republican State Leadership Committee. Walter’s group arguably triggered the redistricting arms race in 2010, when the RSLC scooped up close to $30 million in the run-up to the 2011 redistricting, three times the amount pulled in by its Democratic counterpart.
The resulting GOP state legislative sweep enabled Republicans to draw such GOP-tilted maps that Democrats have lost close to 1,000 state legislative seats and relinquished control of 27 state chambers since 2009. In the House, Republicans bested Democrats by just 1 percent of total votes in 2016 but won 55 percent of the seats. Democrats argue that the GOP-rigged maps, drawn with watertight precision thanks to increasingly sophisticated map-writing technology, subvert democracy by letting lawmakers pick their voters instead of the other way around.
The lopsided Wisconsin map, which enabled Republicans to win 60 percent of the seats in the state legislature in 2012 and 2014 while Democrats won the majority of the votes, was the basis of the constitutional challenge heard by the Supreme Court on Tuesday. At issue is whether district lines deliberately gerrymandered to favor one party or another can be found unconstitutional because they are too partisan. Oral arguments suggested that Justice Anthony Kennedy, considered the swing vote in the case, may favor striking down gerrymandered districts if an appropriate standard to measure unconstitutional partisanship can be found.
No matter how the court rules next June, however, redistricting-related legal challenges are going to keep piling up. If the court sides with Democrats in Gill v. Whitford, expect more partisan gerrymandering challenges to existing maps. If the court lets the Wisconsin maps stand, Democrats and their allies will continue to press for a legal standard to define what constitutes partisan gerrymandering. Common Cause has challenged GOP-drawn district maps in North Carolina as unconstitutional in a case that, depending on the Wisconsin outcome, may also land before the high Court.
“Both of the parties will litigate the new maps based on any and every theory that they can lay claim to,” says Ryan. And, he adds, “both parties are going to stockpile as much as cash as they can.”