It may come as a disappointment to incumbent state legislators worrying about what their districts might look like next election, but the five-judge panel that will likely be drawing new political maps for Minnesota doesn’t care where they live.
The judges also don’t care whether the new districts help incumbents or hurt incumbents. Or whether they advantage DFLers or Republicans.
“Districts must not be drawn with the purpose of protecting, promoting or defeating any incumbent, candidate, or political party,” reads one of the principles for drawing new political districts approved by the panel on Nov. 18. “The panel will not draw districts based on the residence of incumbent officeholders and will not consider past election results when drawing districts.”
Such is the difference between maps drawn by legislators and maps drawn by judges.
Indeed, the maps recently produced by House DFLers and House Republicans were drawn to advantage the party drawing them. The House DFL plan has 12 districts where Republican incumbents have been put into the same district, forcing them to either run against each other or move, while the House GOP plan has nine districts where two current DFL incumbents are pushed together. Peter Wattson, the lead plaintiff in a suit requesting that the courts take on the job of redistricting, called the House Redistricting Committee maps “more humorous than serious.”
And so, since the odds of bipartisan agreement on such a partisan topic are slim — and since the 2022 Legislature will only be in session for two weeks before the deadline set in state law for action — it is the five-judge panel and their indifference to party and politicians that will matter.
Those five are Minnesota Court of Appeals Judge Louise Bjorkman, who is presiding; Court of Appeals Judge Diane Bratvold; Seventh Judicial District Judge Jay Carlson, Tenth Judicial District Judge Juanita Freeman and Third Judicial District Judge Jodi Williamson. In addition to the oral arguments held last month, the panel conducted 10 public hearings around the state in October.
Selected by state Supreme Court Chief Justice Lorie Gildea, the five received sets of maps and reports last week from the four parties, known as intervenors, who have asked the court to take on the job. One of those groups is led by a former Senate redistricting attorney and a former Ramsey County elections supervisor (referred to as the Wattson plaintiffs); another has GOP leanings (the Anderson plaintiffs); a third comes with DFL ties (the Sachs plaintiffs); and a fourth is advocating for Black, Indigenous and people of color (BIPOC) communities to have more clout in the Legislature (the Corrie plaintiffs).
Three more significant dates are coming up: Friday, all four groups involved in the case can respond in writing to the work of the others; on January 4 they will gather before the five-judge panel to make oral arguments in support of their plans and to critique the others; and on Feb. 15, the panel will release maps for all eight congressional districts, all 67 state Senate districts and all 134 state House districts.
All this is dependent on the Legislature failing to agree to its own plans by Feb. 15. If that doesn’t happen, it would also be the first time in five decades the Minnesota Legislature has succeeded in agreeing to new political maps. But if things go as expected, those Feb. 15 court-drawn maps will be the official maps — and create the districts — that will decide the 2022 elections.
To look, or not to look, at partisan advantage
During a November hearing, all four groups involved in the redistricting case agreed that the court could not and should not take politics into account — an approach that guided similar panels 10 years and 20 years ago. But there was disagreement over whether the special panel should know the political implications of the various plans submitted.
Adam Sienkowski, an attorney representing the Wattson plaintiffs, who filed the first suit calling for court intervention, argued that all of those submitting maps should describe the partisan implications of their plans. That is a common from map-drawers, showing how many incumbents are placed in the same districts and how, based on past elections, the new districts would treat GOP and DFL candidates.
But how can the court be blind to party advantage if it knows how submitted plans help or hurt the parties and their candidates?
“You have to look under the tent,” Sienkowsky told the panel. “We don’t want to hide the partisanship of the parties’ plan. We want the people to see it and quite frankly, the only people who are opposed to this are the political parties.”
But Jonathan Hawley, an attorney representing DFL intervenors, called Sienkowsky’s request to have intervenors report the political impacts of their plans “untested and controversial.” Hawley said it is possible that one party or another benefits inadvertently when plans seek to meet other redistricting principles — not breaking up racial groups in a way to diminish their voting clout, for example.
“There are inevitable partisan side effects that come from the sorting and grouping of people,” Hawley said.
Amy Erickson, an attorney representing the group pushing for maximum impact for BIPOC voters, the Corrie plaintiffs, said that principle shouldn’t be partisan. “Our position is that our principle is party-neutral,” she said. But because the group wants to keep communities of color together as much as possible, the so-called Corrie plaintiffs divide local government between districts far more than the other plans.
Elizabeth Brama, representing the Anderson plaintiffs, said it would be unusual for the panel to require intervenors to describe the partisan advantages and disadvantages of the maps in reports, since doing that “elevates the partisanship of the entire process.”
Brama also objected to suggestions that the two intervenors with connections to the GOP and DFL are the only partisans in the process. “It is incorrect to say that because there are parties here who are being clear about where their allegiances lie that they are … trying to overly inject partisanship into the process or that those are the only parties that have political interests,” Brama said.
In the end, the panel did not require the groups to submit partisan advantage data, such as the number of paired incumbents. But it also will not prevent the lawyers from pointing out what they see as partisan manipulation in their written responses Friday or during January 4 oral arguments. In other words, the data can be used to allege or deny that a proposed plan violates the principle against partisan gerrymandering.
The panel of judges did require reports on population; how plans split up political subdivisions; and the minority voting age population of each proposed district. It also wants to see how districts meet measurements of compactness.
The court’s final plan will be based on making districts “nearly equal” in population, will not be drawn so as to deny or abridge “the voting rights of any United States citizen on account of race, ethnicity or membership in a language minority group,” and will not divide federally recognized American Indian tribes. The principles also call for political subdivisions like cities and counties not to be divided “more than necessary” to meet the above goal, that districts should consist of convenient, contiguous territory and should try to preserve “communities of people with shared interests.”
In explaining their position on partisanship, the panel noted that “redistricting is a political process with political consequences,” which is why the job is first assigned to the Legislature.
“But when the courts draw district lines, they are not merely substitute legislators,” read the order signed by Bjorkman. “Courts lack the ‘political authoritativeness’ to make policy judgements.” Previous special panels ultimately looked at incumbents addresses and made small map corrections, perhaps when an incumbent is narrowly placed outside their district. But the memo explaining the court’s order, the panel stated that “… if we are called upon to draw new districts, we will do so solely through application of our stated neutral redistricting principles.”