Several states face court battles over election issues, ranging from voter identification to redistricting, that could affect how voters cast ballots in November. According to Thomson Reuters Westlaw, at least 12 states have pending litigation regarding redistricting: Alabama, California, Maryland, Michigan, Mississippi, Missouri, New York, North Carolina, Pennsylvania, Texas, Virginia and Wisconsin.

The districts for U.S. Congress and state legislatures are redrawn every 10 years, following each U.S. census. In most states, lawmakers handle the redistricting process. Now, some states, such as Mississippi, are fighting multiple court battles over redistricting.

Several cases, including Whitford, William et al v. Nichol, Gerald et al in Wisconsin, involve accusations of gerrymandering – the redrawing of districts in order to protect a party’s majority. The case focuses on redistricting that occurred after Republicans won the state government and redrew district boundaries in 2011. Plaintiffs in the case assert the redrawn electoral boundaries are unconstitutional because they discriminate against Democratic candidates and voters.

Challenges to a 2011 redistricting plan are also central to a California civil case, Luna et al v. County of Kern et al. The case involves the Kern County Board of Supervisors’ redistricting plan, which plaintiffs allege violates the federal Voting Rights Act because it discriminates against Latino voters by denying them an equal opportunity to elect candidates of their choosing.

Some cases involve redistricting plans passed after the 2013 U.S. Supreme Court ruling in Shelby County v. Holder that overturned Section 4 of the Voting Rights Act, which determined which states had to obtain approval before enacting new voting laws. The court’s decision rendered Section 5 – the provision specifically addressing this requirement – ineffective.

Cases may also be attributed to greater awareness of the issue, according to Jerry Wilson, attorney and contributing author to Navigating Election and Political Law: Leading Lawyers on Understanding Campaign Finance, Speech, Voting Rights, and the Laws that Govern.

“There might be a rise because of the vigilance and things that are going on in these states,” explained Mr. Wilson, who has litigated voting rights cases since the 1970s. “But it’s not like the early days, and it’s hardly the same kind of work.”

Though current redistricting fights may not parallel the level of voter disenfranchisement seen during and following the Civil Rights era, the effect on voter turnout is the same.

“It results in a detrimental effect on turnout,” Mr. Wilson said. “People are less likely to go the polls, and this year would be no exception. Even in a presidential election year, the inability of voters to see results on a local level or state level will inhibit people from going to the polls.”

He noted the Shelby decision has made it difficult to maintain momentum towards working through redistricting issues, and believes it will take another Supreme Court decision to reform current redistricting practices. Yet there’s reason for optimism.

He explained, “What I do foresee as a good practice is the rise of interest in the redistricting commissions, especially at the state level, and some jurisdictions have passed legislation that guarantees neutrality and requires neither legal party should have an advantage in the process.”

For more Legal Current election law coverage, read about
designating Election Day as a national holiday.