Three-judge panel hears arguments but doesn’t rule in Arkansas redistricting lawsuit

A three-judge panel took no action Monday after listening to about two hours of arguments in a federal lawsuit that challenges Arkansas’ U.S. House congressional district map.

David Stras, a U.S. Court of Appeals for the Eighth Circuit judge, and U.S. District Judges D.P. Marshall Jr. and James Moody Jr. told attorneys who primarily rehashed arguments they submitted in court filings that they would rule on the state’s motion for summary judgment in due time.

Arkansas congressional redistricting case to go before three-judge panel Monday

The lawsuit was filed in May 2023 by the Legal Defense Fund, O’Melveny & Myers LLP, and longtime Arkansas civil rights attorney, Arkie Byrd, on behalf of plaintiffs who allege the General Assembly considered racial data when determining district lines and unconstitutionally “cracked the Black community” in southeast Pulaski County into three separate congressional districts.

It is one of four cases that has challenged Arkansas’ 2021 redistricting process and is the only one that hasn’t been dismissed. It focuses solely on the state’s 2nd congressional district in Central Arkansas.

“Two cases challenging the State’s congressional districts have already been dismissed,” Attorney General Tim Griffin said in a statement Monday. “Our congressional districts are constitutional, and I will vigorously defend the State in this remaining case.”

In October, the state’s attorneys submitted a motion for summary judgment in favor of the state. Deputy Solicitor General Dylan Jacobs said Monday there is “no smoking gun evidence” and maintained that the Legislature acted with no racial motive when they drew the 2021 congressional district map. Jacobs said there was no gerrymandering.

Though the 2021 map was the first time Pulaski County had been divided, Jacobs named “core retention” as the predominant motive. Jacobs also said that a specific predominant motive didn’t matter when ruling on summary judgment, so long as there is a non-racial motive.

John Cusick, assistant counsel with the Legal Defense Fund, presented the plaintiffs’ arguments in the courtroom on Monday. Parallel to what has been filed in court briefings, Cusick argued the Legislature wrongfully considered race during the redistricting process. By dividing Pulaski County in an unprecedented three-way split, Cusick argued, the political power of Black voters was diminished.

Cusick said legislators did not have access to political data during the redistricting process, only racial data. Pulaski County has a large population of Black residents — 38% of its total 400,000 residents, according to the U.S. Census.

“We’re optimistic that this case will go to trial,” Cusick told reporters after the court went into recess. “The Arkansas Legislature needs to have a constitutionally compliant map. That map is not here because race was used in an impermissible way, and our clients and the groups that we represent here are looking for a fair process that achieves that, that doesn’t decrease their electoral opportunity, that does not use race in an impermissible way when sorting voters in and out of a district.”

Plaintiffs include the Christian Ministerial Alliance — a pastoral organization based in Little Rock — and four Pulaski County voters. Cusick said some plaintiffs were present in the courtroom on Monday.

A 10-day maximum trial has been scheduled for March if the court finds the case should proceed.

Proposed changes to redistricting process

In an attempt to shift the redistricting process out of politicians’ hands, Sen. Bryan King, R-Green Forest, filed a proposed constitutional amendment via a joint resolution on Nov. 20 for the upcoming session in January.

SJR2 would create the Arkansas Apportionment Commission, which would be responsible for redistricting the state’s House, Senate and U.S. House district maps after the federal decennial census.

Under current state law, the General Assembly redraws the state’s congressional districts while the Board of Apportionment redraws state boundaries for the Arkansas House of Representatives and Senate.

“I’ve seen it where legislators just go down there and sell their souls to get a district drawn for them,” King said. “It gives them too much power over them. It also gives them too much power to do things like gerrymander or try to beat people that they don’t like. It could be Republicans on Republicans or Democrats on Democrats. It’s not always about whatever power is in control trying to fork the minority party.”

Under the proposed joint resolution, members of the Board of Apportionment — the governor, secretary of state and attorney general — would each appoint three members to the commission. The proposal also details skills the members should have: at least one must be educated in mathematics, at least one must be a licensed Arkansas attorney and at least one must be “competent in the field of computer-assisted cartography.”

Commission members also must be a registered voter, but cannot be a registered lobbyist or in a variety of political roles like an elected official or a political campaign committee employee. Being a relative to someone in a political role would also make a person ineligible to serve on the commission, the resolution states.

Terms would last 10 years.

King attempted to create a similar commission through a proposed constitutional amendment in 2013, but the legislation died upon adjournment of the legislative session.

For the upcoming session that begins Jan. 13, King said he’s also working on another proposal that would require all communications to the Board of Apportionment to be written or electronic. As a way to increase transparency, King said the proposal would also make those communications available as a public record through the Arkansas Freedom of Information Act.

“If you can’t draw the lines fairly to begin with, and everything can’t be above board … how do you expect anything to be right afterwards?” King said. “Gerrymandering an election is nothing more than trying to rig [an] election.”