The 2010 midterm elections could not have gone much worse for Democrats. Not only did the party lose control of the House of Representatives and six seats in the Senate, the GOP picked up just shy of 700 state legislative seats, controlling 56 of the 99 chambers throughout the country. Adding to their gains in the states, Republicans also picked up six governorships in 2010, cementing their advantage.
But it wasn't just the breadth of Democratic losses that made them so damaging for the party; it was also the timing. Following the 2010 census, the nation's congressional districts were reapportioned, and so were state legislative districts across the country. And it was Republicans who controlled the mechanisms by which those districts were drawn in many states.
"Republicans were fortunate enough to have a national wave election in the worst possible year for Democrats," said Michael Sargeant, executive director of the Democratic Legislative Campaign Committee, which provides support for Democratic state legislative candidates and drew attention to the importance of the 2010 races—as did its Republican counterpart, headed at the time by now-Virginia Senate candidate Ed Gillespie.
Republicans used the redistricting process to lock in many of the gains they made in 2010, and, for the most part, Democrats were powerless to stop them. But in a handful of states, Democrats and Democratic-aligned groups have taken the maps to court.
These lawsuits reflect a broader trend. The Supreme Court struck down a key provision of the Voting Rights Act last year, eliminating the need for states with a history of racial discrimination to preclear changes to voting laws with the Justice Department and the courts. At the same time, a number of GOP-controlled states have passed laws requiring voters to show photo identification and restricting early voting.
Members of Congress proposed bipartisan legislation last week that would address the high court's objections to the Voting Rights Act, but with Congress divided, it's unlikely to become law anytime soon.
Active redistricting litigation focuses on three states where Republicans used majorities in the Legislature to draw maps to cement their advantage: Texas, Florida, and North Carolina. Democrats in D.C. are monitoring these cases, but they aren't counting on the lines changing between now and the 2014 midterm elections; in Texas, primaries are only six weeks away.
If the lines don't change, however, it will make it hard for Democrats to win back the House—and even harder for them to undo the damage during the next redistricting cycle, after the 2020 census.
The Lone Star State gained four congressional seats in reapportionment because of rapid population growth over the last decade. Republicans in the state Legislature acted aggressively and drew a map to make those districts Republican seats, even though Hispanics and African-Americans, who mostly vote Democratic, accounted for 90 percent of the state's population gains.
"They drew all four of the districts such that Anglo-Republicans would control the outcome," said Michael Li, a Texas lawyer who runs the blog TXredistricting.org.
Democrats and minority groups sued, and after a case that eventually reached the Supreme Court, a federal court drew a map that created a 2-2 split among the new districts. But the case is still pending: These groups allege that the initial maps were acts of racial discrimination, which should force Texas back under the Voting Rights Act again, even though the maps have been fixed. "I like to tell people," Li said, "if you get caught shoplifting and you say, 'I put the stuff back on the shelf,' that doesn't work."
Republicans allege that the lines weren't drawn to disenfranchise minorities, but just to boost Republicans. "They will say that we did this for partisan purposes," Li said. "We were just discriminating against Democrats."
A trial is set to begin in July, but Li doesn't think judges in Texas will have the last word. "It will be ultimately decided by the Supreme Court," he predicts.
In Florida, the issues before a court there aren't related to the U.S. Constitution, and Republicans' defense in Texas won't work in the Sunshine State.
Voters in 2010 passed amendments to the state constitution that prohibited legislators from considering the desires of incumbents or political parties in redrawing the congressional and state legislative lines. But that's exactly what petitioners allege the GOP-controlled Legislature did, and the battles thus far have been over whether legislators should be required to testify about the redistricting process and whether documents and other work products should be turned over to the courts.
"The big fight over the last year hasn't been on the substance at all," said Justin Levitt, a professor at Loyola Law School in Los Angeles and chronicler of redistricting litigation at his website, All About Redistricting.
But discovery hasn't been easy for the litigants. Even though the state Supreme Court ruled last month that legislative leaders must turn over documents related to redistricting, those leaders say they've already submitted everything they were required to, and they say other documents have been destroyed.
This adds another wrinkle to the case, and efforts to determine what was destroyed will take additional time that could leave the current maps in effect for 2014.
Republicans won big in North Carolina in 2010, grabbing control of both chambers of the Legislature (it was the first time since Reconstruction that the GOP controlled the state Senate). And even though the governor, Bev Perdue, was a Democrat, she couldn't veto the maps. Republicans were able to push through a map that netted the party three congressional seats—and they are likely to win a fourth since Democratic Rep. Mike McIntyre announced he won't run for reelection this year.
Democrats held a 7-6 advantage in the state's congressional delegation, even after the 2010 wave. This year's midterm elections are likely to result in a 10-3 GOP lead.
But Democrats and minority groups are fighting back in the courts, alleging that GOP legislators packed African-American voters into congressional districts to dilute their influence elsewhere.
"The North Carolina lawsuit is an argument saying you paid more attention to race than you should have," Levitt said.
The state Supreme Court heard arguments on the case two weeks ago but didn't offer any indication on when it might issue a ruling, The News & Observer of Raleigh, N.C., reported.
The Overall Landscape
Redistricting lawsuits aren't confined to those three states. At the state legislative level, there are active court challenges in states like Alabama, New York, and Wyoming. And Democrats also used redistricting to tilt the playing field in the states they controlled, such as Illinois.
But it is in those three states where Democrats are paying the biggest price at the congressional level for their disastrous 2010—a price that is making it harder to win back the seats they lost. Their hope is that demographic changes during the rest of the decade outrun the maps drawn by Republicans and make some of these seats competitive again.
The DLCC's Sargeant says his group is monitoring those lawsuits, but it has already moved on to the next pre-redistricting cycle, when the party can try to win back some of those state legislative chambers; Democrats already won eight of them in 2012, he said.
And because 2020 will be a presidential-election year, Sargeant thinks Democrats will do a better job of turning out their voters than they did in 2010. "We have a lot more optimism for the  redistricting," he said. "Clearly, we do."
This article appears in the January 22, 2014 edition of NJ Daily.