Courts give Democrats unexpected boost on redistricting

A series of state court victories has handed Democrats an unexpected upper hand in red states where Republican legislators had the power to draw congressional district lines, giving their party better odds of winning control of Congress in the decade ahead.

The North Carolina Supreme Court last week became the latest to strike down Republican-drawn district lines when it ordered the legislature to draw new boundaries that would give Democrats a better chance at winning seats in Congress. The original lines struck down in the 4-3 decision would have given Republicans control of at least 10 of the state’s 14 U.S. House seats.

The decision comes after Ohio’s Supreme Court ordered a new redistricting commission to try again to draw lines that initially handed Republicans an advantage in 13 of 15 House districts. And last month, a panel of federal judges ordered Alabama to draw a second Black-majority district.

The Pennsylvania Supreme Court last week took over a redistricting case that had been proceeding in lower courts. That court is likely to adopt new maps that would favor Democrats more than proposals advanced by the Republican-controlled state legislature.

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Republicans are favored to win back control of Congress this year, as Democrats face historical headwinds and President Biden’s approval rating stagnates. 

But if Democrats do lose the House in this year’s midterm elections, the favorable rulings mean the party will have a path back to the majority at some point in the next decade. At the beginning of this cycle’s redistricting process, Democrats feared Republican gerrymanders would effectively foreclose their chance at a majority.

“It’s certainly been a good break for Democrats,” said Michael Li, a redistricting expert and senior counsel at the Brennan Center for Justice at New York University. “The war against gerrymandering has always been a multifront war, and state Supreme Courts have been a part of that.”

Democrats have turned to state courts to challenge Republican-drawn lines after the U.S. Supreme Court in 2019 ruled that federal courts must stay out of cases relating to partisan gerrymandering. Writing for the five-justice majority in that case, Rucho v. Common Cause, Chief Justice John Roberts said the redistricting process was fundamentally a political issue best left to the states or Congress.

Congress has not acted, so state courts are filling the void.

“Given that the U.S. Supreme Court finally clarified in the Rucho case a few years ago that federal courts were closed to partisan gerrymandering claims, state courts couldn’t just defer on the question and leave it to federal courts to create fair districts,” said Rick Hasen, an election law expert at the University of California, Irvine. “We’re seeing a lot of early litigation in state courts. Part of the reason for that shift to state courts is one, they’ve become more hospitable, and two, federal courts have become more inhospitable.”

Republicans plan their own series of lawsuits to challenge Democratic gerrymanders in states like New York, where the legislature passed a map that would cut the number of Empire State Republicans in Congress in half, and Maryland, where Democrats approved new district lines that targeted the state’s sole Republican member of  Congress.

Several states have locked in gerrymanders that favor one side or the other over the objections of minority parties. Texas, where Republicans drew lines, will hold elections under current maps as legal challenges play out. In Oregon, where Democrats crafted a favorable map, a Republican-led lawsuit was thrown out.

In states where Democrats have won, Republicans say their rivals have benefitted from partisan Supreme Court justices. In both Pennsylvania and North Carolina, Democrats hold majorities on the high courts; in Ohio, the Republican chief justice sided with minority Democrats to block the Republican-passed maps.

“Democratic judges, lawyers and activists have worked in concert to transform the Supreme Court into a policymaking body to impose their political ideas,” North Carolina state Sen. Ralph Hise (R), who co-chairs the redistricting committee, said in a statement Friday. He accused “monied interests” of “buy[ing] their own justices to set law favorable to them.”

Lawsuits have been filed in most states where the redistricting process has been finalized. In some of those states, those suits will continue even after this year’s elections — in the last decade, litigation in Virginia, Florida, North Carolina and Pennsylvania all took years to finalize.

The outcomes of the suits that have been decided so far this year highlight the different standards each state prioritizes as it crafts new lines, Li said. Some states require that final maps are fair to both sides. In other states, the requirement is only that mapmakers cannot intend to favor one side, even if the end result is a set of districts that clearly tilts to one side.

“A lot depends on the constitutional provisions you’re talking about. Ohio has a very clear effects standard. You can’t have the effect of unduly favoring a party. In New York, it’s an intent standard,” Li said. “You have to sort out people’s intent, and that’s always a hard thing.”

Litigation over congressional district lines has become a standard feature of the decennial redistricting process in recent years, one that has already proven to have an outcome on control of Congress. Court-ordered remaps in Florida, North Carolina, Virginia and Pennsylvania in the last decade handed Democrats a number of seats larger than their current majority.

“Everybody knows that these cases can matter for partisan control of the House nationally,” Hasen said. “The stakes are very high.” 

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