Mapping out what to expect to expect going forward
As U.S. House members returned to Washington, D.C. this week following the end of the August recess – the scheduled summer “district work period” – speculation ramped up on just what Hoosier congressional district maps would look like assuming Republican legislative leaders and the Governor agree that a mid-decade redistricting protocol is legally appropriate and politically justifiable.
Aided by new automated tools that allow almost anyone with a modicum of computer literacy to use the multitude of available data, a series of assorted maps began circulating toward the end of August, most of unknown provenance, but some purporting to be “from” or “circulated by “Republicans.” One of the maps that made it into the mainstream media showed Marion County dissected and divided into three different GOP districts so as to convert the two remaining seats held by Democrats into safe (greater than +10 R) GOP seats.
We’ll caution you to ignore any non-official maps for now that cannot be traced directly to House GOP leadership, either as their own commissioned creations, or as presented to them for consideration from national Republican sources. You also shouldn’t expect to see any such “official” maps for quite some time, as there will have to be a series of draft iterations that will be signed off by the individual Hoosier Republican members of Congress before state lawmakers outside of leadership circles are afforded a glance at them.
A special session is becoming more inevitable, according to both Republicans and Democrats and the lobby (none of whom have direct knowledge), with early November the likely target date, and the district carving on any legislative agenda before the Thanksgiving turkey gets carved (or, in Hoosier colloquial, before “the frost is on the punkin and the fodder’s in the shock”).
So what’s happening behind the scenes while GOP officials remain mum?
The Governor and legislative leaders are weighing pressures from the White House and MAGA crowd . . . as well as assessing what it might mean to potentially put at risk loss of the state’s difficult-to-measure “most-favored” status against the other political consequences Back Home. We also keep hearing differing versions of just how much pressure the President and his team are – or are not applying to the Guv and Hoosier House and Senate leaders.
The Governor, however, continues to be relatively hands off with leadership, allowing the Third Floor to reach its own conclusion.
Waiting to make the decision, however, does not mean that the D.C. pressure on Indiana can be relieved; regardless of what states like Missouri and others might do to pad likely GOP House totals, the White House continues to view Indiana’s potential contribution of two more seats as imperative.
Leading up to a go/no-go decision on a special session, strategy appears to be centered upon messaging. Leaders are determining how to best prepare Hoosiers for what would largely be an unpopular option. They will seek to frame it so that it doesn’t look like it is an $250,000 proposition being forced upon them by an impetuous White House, and they will work to – as we told you last week – include some politically popular move, such as an early tweaking to property tax reform that just went into effect under SEA 1-2025, the effects of which won’t be felt by taxpayers this cycle (even as their assessed values keep soaring and local taxes are already increasing to compensate for lost government revenues).
Leaders must also determine the best way to communicate to their own members why they need to be on board, and how they can best convey to constituents the positives of the special session, much like the congressional majority is being coached to do with respect to the (already rebranded) One Big Beautiful Bill Act.
What may prove difficult for leaders to address procedurally is how to roll out the maps. As we noted last week, the 2021 redistricting process featured a trio of public hearings, with lawmakers venturing outside Indianapolis to ostensibly gather public input. That process could prove more fraught this time around as hearings could turn into something other than a detailed discussion of such relevant topics as communities of interest, cracking, and packing and devolve into grievance-laden town hall meeting-equivalents.
After the lack of any public input into some key elements slipped into the budget bill in the final hours, don’t be surprised to see one severely attenuated hearing in each chamber, with leaders perhaps calculating that any political damage would already have been done, and cannot be complicated by playing with the process.
We’ve also cautioned you to consider the potential legal delays and fallout from new maps. Republicans will find it difficult to carve up Indianapolis and dilute the strength of the industrial Democratic communities in Lake County by just shifting a mid-sized community or two, leading to concern about meeting case law standards.
There could also be some novel legal questions raised about the population standards used to draw any new maps. Essentially, it’s a matter of first impression for courts to consider what set of data to use in a voluntary mid-decade redistricting. Should the data used be the original 2020 Census data that informed the 2021 mapmaking? Should official Census estimates since then comprise the data set? What about actual special Census data collected when growing communities funded new official counts – should those numbers be substituted for the earlier counts where available?
We posed those questions – again, much of which has never been litigated in a similar context – to a recognized national legal expert on redistricting issues. We were told that probably the “cleanest” data to use in the view of the courts, would likely be the original five-year-old Census data, but that each potential alternative population package poses its own problems.
The bottom line from this top election law attorney based upon the scenarios we posited was that it would be very difficult to find any population set scenario that would not pass muster with the Roberts Court . . . if it even found legs with a three-judge district court panel.
The current Supreme Court of the United States has proven unfriendly to Voting Rights challenges in general and to individual redistricting challenges, and the only issue that might find a crack in the docket door could be an egregious cracking of CD 07, if it appeared to be undertaken as a direct means to dilute minority voting strength in a district in which minority voters comprised a major proportion of the district . . . but even this might be tenuous (and our expert was skeptical that the numbers would approach a necessary threshold ; the district is fewer than one -third Black and not even 15% Hispanic).
We were told that if you want to get a feel of where the Court might stand on an Indiana claim, you should look back on a two decade-old case argued by then-Texas solicitor general Ted Cruz: League of United Latin Am. Citizens v. Perry, 548 U.S. 399 (2006). In this LULAC challenge, he justices produced six different opinions spanning more than 120 pages, with then-justice Anthony Kennedy for the majority finding that the LULAC plaintiffs had failed to state a sufficient claim of partisan gerrymandering. The case also considered vote dilution claims, and issues of compactness and compensation.
Your takeaway from all this: betting bucks favor a redistricting special session before the Indiana University – Penn State University Big 10 football showdown, Democrats can’t stop any maps, and any congressional map that emerges should not face undue judicial delay before being upheld. As recently as 15 years ago (although we wouldn’t be talking a mid-decade redistricting), each of those components would likely have resulted in a different outcome.