GOP Expert Offers His Perspective on Redistricting and What it Portends for 2022
WASHINGTON — With just two states, New Hampshire and Missouri, left to finalize congressional district maps ahead of the 2022 midterms, attention is now shifting to primary contests and the inevitable litigation that the decennially-drawn maps inspire.
On Friday, The Well News caught up with Adam Kincaid, president and executive director of the National Republican Redistricting Trust, to discuss his perspective on how the decennial redistricting process has gone, where things stand now, and the long road to November that lies ahead.
Next week, The Well News intends to share the views of Kelly Ward Burton, president of the National Democratic Redistricting Committee.
Prior to becoming the NRRT’s first executive director, Adam Kincaid worked as the special projects director at the Republican National Committee; the redistricting coordinator, southeastern political director, and national data director for the National Republican Congressional Committee; and the deputy political director and director of policy and research for the Republican Governors Association.
His first job in politics was as the voter programs director for the Georgia Republican Party.
Kincaid holds a Bachelor of Arts from Florida State University and a Masters in Public Administration with a specialization in public policy from the University of Georgia. He and his wife now live in Northern Virginia with their four sons.
TWN: Before talking about what’s transpired in redistricting over the past several weeks and months, I should probably ask you to explain exactly what the National Republican Redistricting Trust’s role is in the process …
AK: Sure. Our purpose is to be a clearing house and to make sure that Republicans in every state in the country have access to the tools they need to engage effectively with redistricting. That’s our job.
Now, as you can imagine, that means something different in every single state. In some states, the Republicans engaged in redistricting don’t need much of anything from us. In those cases, they know we’re here to help if they have any questions.
In other states, they may need help finding lawyers or map drawers or academic experts to advise them in their drafting of the district maps. And we can help with that. There are also states that need data. And we can help with that.
So our job is to be whatever each state needs us to be, within the scope of the law in each state.
Of course, it’s kind of a minefield in a lot of ways, because each state can be so different from the next, but that’s our job … to coordinate a 50-state redistricting strategy on behalf of Republicans across the country.
TWN: I’d also like to draw a distinction up front here between redistricting, a process that happens every 10 years after the Census, and other things that have occurred, in terms of state election laws, since the 2020 election. Both can be controversial topics, but they really are two different things. Or aren’t they?
AK: Well, [redistricting] exists within the lane of election law, but it is completely different. The area of the code is different … in every single state. Redistricting is not election administration. It’s really in a totally different lane of government and political law.
So the process that’s played out in terms of redistricting is not related to the election integrity work you’re referring to; it’s definitely in its own little niche within the wider legal landscape.
And so, even the cases that you have for redistricting are unique. In federal court, there are not many situations that federal three-judge panels are called upon to settle an issue. But you get those for redistricting … and you get immediate appeals to the U.S. Supreme Court. They’re fast-tracked on purpose because they impact election calendars and everything else.
Like everything else with redistricting, there’s not one set of rules that applies in every state, and even within the scope of federal law, it definitely occupies its own … small space within it.
TWN: I’ve found that in my reporting, reaching out to secretaries of state and redistricting committees and so forth, every state really does have its own way of dealing with redistricting and its own set of problems. That said, in regard to the two states that haven’t finished the process, what’s going on?
AK: Well, it’s two different problems. So let’s look at New Hampshire first. There are two congressional districts in New Hampshire, and Gov. Christopher Sununu wants to have both be competitive districts.
But there are a lot of different ways to define what’s competitive and what’s not, right?
The governor won pretty comfortably. During his reelection, Donald Trump lost the state both times, but by relatively narrow margins. So how do you define competitive? People talk about how the Legislature’s map, the initial map that Gov. Sununu vetoed, had one district that was too Republican — but Donald Trump only got 51% of the vote in that district in 2020.
So if you have two competitive seats by the standard that Gov. Sununu is looking for, then you’re going to have two districts that Donald Trump lost in both times. And Gov. Sununu probably won them both or came close to doing so in 2016, and probably did win both of them in 2018 and 2020.
So I think part of the problem in New Hampshire is defining the terms because again, there isn’t one universal definition of competitive. I mean, are you looking at state races? Are you looking at federal races? Are you looking at a group of federal races averaged over time?
So I think the big disconnect between the Legislature and the governor right now is just a matter of their trying to define what is or is not competitive? And, you know, hopefully they come to an agreement and iron this thing out. If not, the courts will step in and impose a map.
TWN: Does the National Republican Redistricting Trust have any role in these discussions?
AK: We’re outsiders. We don’t have an official role to play within the state. Now, there are people we talk to in New Hampshire all the time, just checking in. “Hey, what’s going on?” “How can we help?” “Is there something that you need?” That’s our role. But we don’t have a formal lobbying presence in New Hampshire and we’re not formally advocating for one solution or another.
Our overall goal in New Hampshire is for the Republicans in the Legislature and the executive branch to come together and try to reach some sort of compromise. That’s our goal.
TWN: Well, since you are in touch, have you heard anything interesting lately? Is there a solution within sight in New Hampshire?
AK: That’s beyond my knowledge. If they come to a conclusion, they come to a conclusion. Our preference is that if Republicans have the ability to draw the maps, they should draw the maps and not leave it to a court to draw the maps.
But if New Hampshire’s redistricting ends up in court, that’s not the end of the world for the cycle. It probably still means we have two seats we can win this fall.
TWN: How about Missouri? What’s the situation there?
AK: It’s an ideological difference. Some members of the Legislature want to draw a very Republican-friendly, seven-district-to-one map; other members of the Legislature want to draw a six-district-to-two map. And there are various disagreements about which counties should be whole and which ones should be split, and how much they should be split.
This is the messiness of redistricting playing out for all the world to see. But, you know, sometimes these things happen in private for months. And sometimes they happen in public for months. And right now, in Missouri, it’s happening in public.
TWN: Does it frustrate you — and forgive me for using that phrase, because I don’t want to put any kind of spin on this question — that disagreements over maps lead so often to litigation rather than a compromise or other resolution?
AK: Well, redistricting is messy, right? And it’s litigious and that’s the nature of redistricting. So there aren’t a lot of people who get bothered by it. For me, it’s just natural. This is how redistricting is.
Now, would it be a lot easier if you could just do whatever you wanted to all the time? Of course. But that’s not how the world works and it is not how it works with redistricting. I think legislators and governors all realize over time that when they go through this process, none of them ever get 100% of what they want. It is a process that by its nature drives compromise, whether within a party or across the aisle in some cases.
TWN: That said, do you have any sense that there’s been more litigation this time around, since states began the redistricting process in earnest last fall?
AK: There’s always been litigation when it comes to redistricting. But there probably has been more this decade than there has been in the past and that’s because both parties are more focused on redistricting than they had been before.
In the past decade, the U.S. Supreme Court has heard a series of cases that have pretty much redone redistricting law. Among them was a decision called Rucho v. Common Cause out of North Carolina that said that partisan gerrymandering claims cannot be brought in federal court at all.
And we knew when this decision came down — and even before it came down — that all of these cases would move to state court. Democrats had been doing this a little bit in the previous decade, in Pennsylvania and Florida and elsewhere. But even the reforms have been in the states, decisions over whether there would be a commission doing the redistricting or ballot measures that created new rules and processes for redistricting. Those are in state constitutions and in state codes.
So now all of these things are being challenged in state court, and when you have 50 different states with 50 different judicial structures, it means more litigation. I mean, we’re tracking more than 75 cases across the country right now dealing with redistricting.
TWN: Are there one or two of those 75 cases that you think might rewrite redistricting law further? Is there any one of these you are particularly following?
AK: Well, there’s a case out of Alabama that the U.S. Supreme Court will hear in the fall that deals with how the Voting Rights Act does and does not apply to redistricting. So that’s going to be a very big case that will, we hope, bring clarity to what is required.
The fact of the matter is the U.S. Supreme Court has kind of muddied these waters over the last 20 years. It used to be that a state legislator, when drawing a map, knew that if they did X and Y, they were safe, because they were following the law.
The problem is that the U.S. Supreme Court over the last 20 years has taken X and Y and kind of collapsed them right next to each other. And so there was no way to have a safe lane to go down — you’re either going to be sued because of X or Y. You may be able to choose which of those two things you’re going to be sued for, but you are going to be sued no matter what.
So what we have been hoping will happen this decade is that the U.S. Supreme Court will say, “Oh, okay, well, here’s the rule. Here’s the clarity that you’ve been needing so that you don’t have this much litigation.”
Ideally, we’d like to wind up in a situation where a state can look at a map and say, “We want to comply with federal law and the U.S. Constitution and we can do so by doing these three or four or five things, checking off these boxes.
Not only would this help the process, but it would help states defend their maps in court and make it more difficult to just bring a challenge because somebody feels like it.
Part of the problem with redistricting recently has been that lawsuits aren’t brought because maps are illegal; lawsuits are brought because people don’t like them. So people are just suing to sue.
And it’s been part of the problem with the way we use the term “gerrymandering” today. Gerrymandering has come to mean, “I don’t like that map.”
As a result, everywhere you turn you hear, “this map is gerrymandered, that map is gerrymandered,” and a Democrat and a Republican and an independent can each look at the same map and come to three different conclusions about whether it is gerrymandered or not.
Eventually, you just reach a point where everything is gerrymandered.
Again, it used to be that people understood no one gets everything they want in redistricting.
The problem today is people sue because they’re unhappy with the outcome. And that shouldn’t be grounds to sue — unless there’s actually a legal flaw in the way the map was drafted.
TWN: It has been said repeatedly in recent weeks that from a national perspective, after all the squabbling over each state’s maps, that the outcome is a pretty even split between Republican and Democratic districts. Is that true?
AK: I think nationally we’re exactly where we thought we would be at this point in time. We knew going into this process that the number of competitive seats was going to go down. We knew that Republicans and Democrats were going to shore up vulnerable seats where they could, that they would go on offense where they could, because that’s what redistricting is. That’s what happens. That’s what happens every single decade.
We said from the beginning that we weren’t going to pick up the House through redistricting alone, that there are gonna be competitive seats we had to win. And that’s exactly what’s happened.
So as far as the overall outcome, I think there are still some lawsuits that need to play out, and a couple of final states that need to get across the line. But overall, I think Republicans have raised our floor, and that we don’t have as many vulnerable seats as we did before.
What used to be the case is that Republicans had to win more competitive districts than Democrats in order to win the House. And that will still be the case, but to a smaller number than it’s been in previous decades, and in previous cycles.
Even in the middle part of the decade, we still had to win more competitive seats … more Republican-leaning or Democrat-leaning districts to hold a majority.
Now, because we don’t have to win as many of those as we have in the past, that means we — Republicans generally and conservative groups — can spend more money on fewer seats to hold a healthy majority.
TWN: So what do you attribute this change to?
AK: Well, it’s a byproduct of a lot of different things over time. It has to do with the geographic distribution of parties; it has to do with all sorts of different things.
One of the things that has always been true in the past is that Democratic voters have been more disciplined than Republican voters. Hard Democratic voters vote Democrat, no matter what.
Republican voters tend to be a little bit less straight ticket voters than Democrats. As a result, Republicans have always had to win a significant number of independent votes as well. That’s changing a little bit.
Party registration, for a long time, heavily favored Democrats. That’s slowly changed over time and the number of voters registering as independents has gone up. Also, districts are shifting, Republican numbers are going down in some places, but going up in others.
When you have more seats that are safer for Democrats than for Republicans, it means that Republicans have to spend more money to make sure we win a lot of these battleground districts.
Historically, Democrats have been able to rely on 185 to 190 very blue seats, and Republicans have been more around 150 to 160 in terms of dependable seats. This year, we’ll be up around 173.
TWN: A bit ago you used the phrase “getting some states across the line.” Did you just mean Missouri and New Hampshire, or are there other states that you still need to be concerned about because of litigation?
AK: Missouri and New Hampshire are the two that still have to get maps enacted. But Kansas and New York are two states that have maps and litigation right now. And Louisiana has a map that’s in litigation right now.
In addition, Florida will likely see its new map challenged in court as soon as Gov. DeSantis signs it into law. So those are four states that have active litigation.
In Louisiana we expect the judge — there’s a single judge presiding over the case in federal court — will try to block the use of the map for this fall. We think that decision will be overturned on appeal, given some of the same standards we’ve seen in other states under Purcell, which is a doctrine of the federal courts that says you shouldn’t tamper with elections when they’re underway or close to happening.
Kansas Democrats have brought a lawsuit in Wyandotte County and it is in front of a very liberal judge, so we expect the judge will block the maps and Republicans will then appeal to the Kansas Supreme Court and ultimately, potentially, to the U.S. Supreme Court to allow the maps to stand for this fall. So we’ll see how that plays out.
And then in New York, you’ve got a situation where you have people who are suing because Democrats gerrymandered the state in contradiction to a new set of rules in the state spelling out how districts are supposed to be drawn.
Those maps are currently invalidated. The plaintiffs won their case about three weeks ago. The Democrats lost their appeal on Thursday in regard to the congressional lines, and the New York Court of Appeals is hearing the case next week.
So again, we’ll see how that plays out. But in the meantime, the congressional map for New York does not exist.
As for Florida, again it’s wait and see, but we think given the election timeline and everything else, the map should stay in.
TWN: So would you say that at this moment we have a pretty good idea what the 2022 midterm election is going to look like, in terms of districts and candidates and so on?
AK: I think we have a pretty good understanding of how about 370 districts are gonna look in the fall. I think there’s probably, given those handful of states I just mentioned, still a little bit of uncertainty left, but we’re getting pretty close to having a good idea of where we’re at.
Dan can be reached at [email protected] and at https://twitter.com/DanMcCue