Once every ten years, the extremely rare Corpse Flower blooms. When it does, rather than giving off the typical sweet scent one might expect from a flower, the Corpse Flower instead releases the aroma of rotting flesh—hence the name.
Now, another once-in-a-decade event is occurring across the country, and it too reeks, not of rotten flesh, but partisan political maneuvering.
Following the delayed release of the 2020 census data, states across the country have begun the process of redrawing their legislative maps to account for population shifts. This is a constitutionally required process that is unavoidably partisan. By inserting itself into the process through the Department of Justice (DOJ), the Biden administration is undermining the Constitution, ignoring Supreme Court precedent, and pouring fuel on a partisan fire.
Redrawing legislative districts is a constitutional requirement placed squarely upon the shoulders of state legislatures.
With 435 seats in the U.S. House of Representatives, each state is apportioned its share of seats based on its population size compared to the other states. In the U.S., official population numbers are determined once every decade through the U.S. Census. Those numbers then determine how many representatives each state gets to have over the next decade.
When the population changes, the districts, too, must change.
As a result, states may lose or gain congressional seats based on population changes. Texas will gain two seats this year, while Florida and four other states will each gain one. California, on the other hand, will lose a seat along with six other states.
As states redraw their legislative districts, they are guided by law and Supreme Court precedent. For most states, this means that all areas within the district they draw must be physically linked to one another, with constituents within a single district living as closely to one another as possible. Other than that, so long as the Equal Protection Clause is not violated and so long as there is no racial discrimination at play, state legislatures are generally free to redraw their districts in the manner their state allows.
As a result, not all states carry out the process in the same manner. Fourteen states use commissions rather than their legislature to redraw their districts, while Virginia, Kansas, and New York utilize a hybrid approach wherein their state legislatures approve the district map drawn by a commission. But, for most states, 33 of them, the legislature fully controls the redistricting process.
Regardless of the method employed, given the political stakes at play, the process is always highly partisan with charges of gerrymandering, claims that legislative districts have been drawn to favor one party over another, frequently made by politicians and pundits on both sides of the aisle, often before they have even had a chance to view the new map.
This year, a new partisan force is entering into the fray, bringing with it resources and reach unrivaled by any state in the union, and in the process, undermining the states’ constitutional authority to govern this process.
That new force is the Biden administration and its newly restaffed and repurposed DOJ. Having already shown a willingness to utilize DOJ to attack commonsense election laws such as Georgia’s, DOJ has now set its sights on the redistricting process.
Recently, DOJ issued “guidance” outlining its plan to review and investigate state redistricting procedures and methods “to evaluate compliance” with voting rights laws.
The clear purpose of this guidance is to intimidate state and local governments that are not politically aligned with the current administration as they engage in their redistricting process.
The same way the Biden administration brought a lawsuit against Georgia while ignoring other Democrat-led states with similar voting laws, we can expect DOJ’s oversight of the redistricting process to also be focused on states led by Biden’s political opponents. This, of course, includes Republican strongholds such as Texas and Florida, but other states as well.
Through this thinly veiled threat of prosecution for those states that redraw their districts in a manner that displeases the current administration, DOJ is exerting federal influence into an area it does not belong.
Through this guidance, DOJ is also attempting to resuscitate the preclearance oversight it exercised over some states before the Supreme Court’s 2013 Shelby County decision, in which the Court ended the practice. Under preclearance, some states were required to have DOJ approve their district maps before they became law, but not other states.
Through this guidance document, DOJ essentially tells those same states that were subject to preclearance before Shelby County that it plans to ignore Supreme Court precedent and engage in preclearance anyway.
Once again, the Biden administration is misusing taxpayer resources for political gain and, along the way, undermining the separation of powers embodied in the Constitution.
The good news for states is that the legal merit of DOJ’s inevitable redistricting actions rests on a foundation no more stable than does their current lawsuit against Georgia’s election integrity law. States challenged by DOJ based on this guidance will surely prevail.
The odor from the Corpse Flower’s bloom, repugnant as it is, is generally short-lived, fading away as the flower wilts just 12 hours later.
States fulfilling their constitutional duty to redraw districts should largely ignore the stench of this politically motivated guidance coming from the DOJ. Though it is certainly repugnant, given its lack of a legal basis, it too will quickly fade away… at least for a decade.
• Stewart Whitson is a legal affairs fellow at the Foundation for Government Accountability. He is also an adjunct professor at Catholic University and formerly investigated foreign and domestic threats as a Special Agent at the FBI.