How Restricting Could Determine Control of the House

With each new decade comes a new Census, and with every new Census comes a redrawing of the map of congressional districts for the House of Representatives.   Known as redistricting, the stakes of this process couldn’t be higher, with Democrats clinging to a narrow majority in the House and the electorate bitterly divided among voters of either party.  However, thanks to the pandemic and controversies from the redistricting process 10 years ago, the process to determine congressional district boundaries ahead of the 2022 midterm elections will look more complicated than usual.

How States Determine Congressional Districts

The lines for congressional districts are redrawn at the state-level every 10 years.  Notably, each congressional district is required to be as equal to the population in all other congressional districts in a state as practicable.  Using new census data, states typically determine district boundaries through one of three ways:

1. State legislature.  The state legislature has ultimate authority to draft and implement maps for congressional districts.  While some states may have advisory commissions who assist with the redrawing process, state legislatures are not bound to follow the commissions’ recommendations.
2. Commission.  An independent commission is tasked with drawing the boundaries of congressional districts.  Some commissions bar individuals that hold elective office from serving on them, while others may include elected officials.
3. Hybrid.  Both a state legislature and a commission share redistricting authority.

Below is a map that shows each state’s redistricting process as of 2020.  Notably, states with only one member serving in the House of Representatives do not participate in the redistricting process.

Since most states have their respective legislatures draw congressional boundaries, some state lawmakers feel an incentive to engage in partisan gerrymandering, which is when districts are drawn in a way that benefits their own party.  Related to this is racial gerrymandering, which refers to when districts are drawn to reduce the electoral power of one racial group in favor of another.  Notably, racial gerrymandering is prohibited under the Voting Rights Act of 1965.  While the Supreme Court ruled 5-4 in June 2019 that federal courts cannot weigh in on partisan gerrymandering cases, several lawsuits on the state level have been successful in changing maps.  In 2019, a three-judge panel in North Carolina threw out the Tar Heel state’s new congressional map for unconstitutional partisan gerrymandering, prompting a redrawing of the map that gave Democrats an edge.  One year earlier, Pennsylvania’s Supreme Court declared the commonwealth’s 2011 congressional districting map to be in violation of the Pennsylvania Constitution, leading the way to a new map that also left Republicans disadvantaged.

Delayed Census Data, Delayed Maps

Normally, the US Census Bureau releases its apportionment data in December of the year it is collected, with more in-depth demographic data that states use to determine district boundaries released throughout February and March of the following year.   However, COVID-19 delayed the Census Bureau’s ability to gather and process data, and therefore the apportionment data wasn’t posted until April 26, 2021, and the more in-depth data states use to draw district boundaries won’t be available until August 12.  The apportionment data refers to the number of seats in the House of Representatives allotted for a state based on the state’s population, while the more in-depth data includes demographic information such as age, sex, and race as well as geographic boundaries like jurisdictional limits, school districts, property lines, roads, and other features that states will use to redraw maps.

Due to the delay in receiving census data, states are facing tight deadlines on drawing their 2022 congressional maps.  Currently, 12 states are required either constitutionally or statutorily to have their 2022 congressional district boundaries enacted before the end of 2021.  As a result, many states are expected to hold special legislative sessions this fall to focus on redistricting.  Other states are using non-census data to draw new district boundaries.  For example, the state legislatures of Illinois and Oklahoma are both using data from the American Community Survey (ACS) to come up with new maps.  However, some dispute that ACS data can serve as a stand-in for census data, and the Illinois Republican Party has already filed a lawsuit to challenge the forthcoming new map.  By summer 2022, at least half of states are expected to have their new congressional districts finalized.

What to Watch for in 2022

Apportionment data released in April saw a dozen states either gain or lose House seats based on changes in total population.  Below is an overview of the states that will see changes in their delegation, with the current number of seats in the 117^th Congress noted in parentheses.

• States that will lose one seat: California (53), Illinois (18), Michigan (14), New York (27), Ohio (16), Pennsylvania (18), West Virginia (3).
• States that will gain one seat: Colorado (7), Montana (1), North Carolina (1), Oregon (5).
• States that will gain two seats: Florida (27), Texas (36).

Going into the 2022 redistricting process, Republicans have the upper hand.  A major reason for this is Democrats currently have a slim five-seat majority in the House, which means Republicans only have to flip a few seats to retake the majority.  Heading into 2022, two factors give the GOP an advantage when it comes to winning new seats.

• Apportionment data.  Many of the states that are set to lose one seat are Democratic-leaning, while Republican-leaning Florida and Texas gain two seats apiece.  A minor shift in seats away from blue states toward red states could be especially impactful in the House.
• Control of state legislatures.  The Republican Party holds a supermajority in the legislatures of 30 state governments, meaning party members control both the upper chamber and the lower chamber of a state’s legislative branch.  In contrast, Democrats hold a supermajority in 18 states, while control is split between the parties in two states’ legislature.  This translates to Republicans having direct control over the boundaries of 187 districts, while Democrats only control 75.  Out of the remaining districts, independent commissions will decide 96, both parties will decide 71, and six seats represent at-large districts.  By holding supermajorities in most state legislatures, the GOP is better positioned to engage in gerrymandering and redraw congressional lines in their favor.  Notably, the Republican Party controls the state legislatures of Texas and Florida, both of which will be gaining two seats for 2022.

However, Democrats have a few tricks up their sleeve to counter Republicans’ advantage in redrawing the congressional map.

• Lawsuits. Litigation brought about changes in the congressional maps in Pennsylvania and North Carolina in recent years, and new legal challenges could open the door for more changes as redistricting for 2022 heats up.  The National Democratic Redistricting Committee, an advocacy organization founded by former US Attorney General Eric Holder, filed lawsuits in Louisiana, Minnesota, and Pennsylvania in April 2021, immediately following the release of the apportionment data.  As a worst-case-scenario for Republicans, some lawsuits could potentially overturn newly drawn maps, meaning some 2022 congressional races could be decided using the 2020 map.  It should be noted that Democrats are not the only party with a redistricting advocacy group, as the National Republican Redistricting Trust has pledged to challenge any maps that it sees as unfairly skewing to the left.
• Democratic supermajorities.  State legislatures with Democratic supermajorities may attempt to redraw their lines through gerrymandering to squeeze out Republican members of the state’s congressional delegation, potentially providing a cushion for Democrats in anticipation of any 2022 losses in the House.  States to watch include Illinois and Maryland, where Democratic state lawmakers may redraw lines to make reelection a tough prospect for Reps. Rodney Davis (R-IL) and Andy Harris (R-MD).

Redistricting has massive ramification for US politics and this year is no exception.  Between delayed census data, tight redistricting deadlines, strong Republican advantages, and the specter of Democratic lawsuits, intense fights over the 2022 congressional map could be on the horizon.