Have The Courts Made Gerrymandering Better Or Worse?

cwick (Chadwick Matlin, deputy editor): Are we sure that redistricting maps aren’t being drawn by the boy who cried wolf? Following the news around gerrymandering over the past few months has felt like one bait and switch after the other. First you hear about a new map in Alabama, then you hear a federal court has struck it down for violating racial gerrymandering laws … and then the Supreme Court lets it stand. Next you hear that New York has achieved the platonic ideal of a partisan gerrymander … and then weeks later the map is struck down by the state’s highest court. And after that … well, it’s easy to lose track of where all these maps stand, and what all these legal interjections mean for the future of gerrymandering redistricting going forward.

English Conversation About Law
English Conversation About Law

To discuss this herky-jerk form of democracy we’re all living through, I’ve asked two colleagues who obsess about this stuff the most to join the chat. Nathaniel Rakich is a senior elections analyst who also administers our invaluable redistricting database. And senior writer Amelia Thomson-DeVeaux namedrops judicial precedents like they’re part of the vernacular.

Nathaniel, Amelia, thanks for taking the time to reflect on this very odd redistricting season.

nrakich (Nathaniel Rakich, senior elections analyst): Thanks, Chad, for that ebullient introduction.

ameliatd (Amelia Thomson-DeVeaux, senior writer): I’m here, I have tea, I have chocolate. Let’s doooo ittttt.

cwick: True blogger fuel, Amelia.

Before we get to the full compendium of lawsuits that I know Nathaniel has been hoarding, let’s start with your overall takeaways. Has this redistricting season gone as you expected it might? Have judges been more or less present in the way our political maps get made than you thought they’d be?

nrakich: It depends on when you measure from, Chad — which gets at how the courts have really upended redistricting this cycle. At the beginning of the cycle, I expected the Republican-leaning status quo to largely prevail, based on the fact that Republicans were in charge of drawing more districts than Democrats were. But a couple months ago, I had to revise my expectations to say that Democrats would actually emerge as winners, because courts had struck down Republican gerrymanders in North Carolina and Ohio and Democrats were drawing their own gerrymanders with impunity. But then courts struck down two of those gerrymanders in Maryland and New York, which made redistricting look like more of a partisan wash, so things are now turning out more like I expected at the beginning after all.

cwick: Redistricting is a flat circle.

nrakich: Or some sort of polygon, anyway.

cwick: Is a circle a polygon?

nrakich: No! Polygons must have straight sides.

cwick: Do political districts have to be polygons??

nrakich: Haha, no, I guess not! Some follow river boundaries, for instance.

ameliatd: It’s interesting, because I think state courts were seen as a bigger threat to Republicans — and yet as Nathaniel pointed out, they’ve turned out to be a hurdle for Democrats as well.

cwick: Nathaniel, can you remind us of just how many states’ maps ended up in court (or are still there)?

nrakich: Almost every map that could reasonably be considered a gerrymander — and even some that couldn’t — has been sued over. By my count, 21 states’ congressional maps have been challenged in court. Six (in Alabama, Kansas, Maryland, New York, North Carolina and Ohio) were overturned, although Alabama’s was reinstated.

ameliatd: Were there any states that you expected to be sued over and weren’t? It seems like all of the partisan gerrymandering activity just shifted to the state courts.

nrakich: I think just Tennessee? There, Republicans split Nashville between three districts, turning the 5th District from safely blue to safely red. Democrats in the state cried bloody murder over it and promised a lawsuit, but it never materialized.

ameliatd: Huh, I wonder if they figured it was doomed in the Tennessee state courts. Given the Supreme Court’s literal decades of handwringing over the appropriate standard for determining an unconstitutional partisan gerrymandering, it’s funny that state judges really don’t seem to have had much trouble with that question.

nrakich: Yes, that’s my guess, Amelia. One clear theme from this year’s state-level lawsuits about redistricting is that the partisanship of the judges who hear the case really matters. For instance, North Carolina’s Republican gerrymander only got overturned because Democrats hold a 4-3 majority on the state Supreme Court. Republicans have a 4-3 majority on the Ohio Supreme Court, but one of those Republicans is a swing vote, and she sided with the court’s Democrats to overturn Ohio’s (Republican-drawn) map, too.

That said, it hasn’t been an ironclad rule. Most notably, a New York Court of Appeals that was 100 percent appointed by Democratic governors narrowly voted to strike down the state’s Democratic gerrymander. I think that took a lot of Democrats by surprise.

ameliatd: We’ve seen a general trend toward attempting to “pack” state courts or get voters more excited about the results of state judicial elections. I wonder if cases like New York and Ohio will feed that trend. It wouldn’t be especially inspiring for the state of judicial independence, but there you go.

cwick: When a majority of the Supreme Court ruled that it didn’t think partisan gerrymandering was something the highest court should rule on, is this fractured landscape of legal challenges what it had in mind?

ameliatd: Chad, I think some of the justices were worried about every gerrymander getting endlessly litigated in federal court, with judges struggling to figure out what the right calls are. So… yes? But that energy has basically shifted to state courts.

cwick: Delegation is an important form of leadership!

ameliatd: Of course, that ruling didn’t take federal courts out of the redistricting game. For instance, in February the Supreme Court ruled that Alabama can use a House map that a lower court had ruled was likely discriminatory against Black voters. That’s not a partisan gerrymandering case, of course — it’s about what’s legal under Section 2 of the Voting Rights Act, which allows courts to require the creation of majority-minority districts in some situations. The goal of those districts is to give minority voters the ability to participate equally in the political process and elect representatives of their choosing. But it still signaled that the Roberts court is about to wade back into the fight over redistricting, and likely scale back the VRA even more than it already has. So the federal courts have weighed in — just not on whether a partisan gerrymander was unconstitutional.

Nathaniel, I have to confess, I was a little surprised by the Alabama ruling. It just seemed like such an open-and-shut VRA case. What was your reaction?

nrakich: Yes, it is very possible to draw a second predominantly Black seat in Alabama, and according to the current interpretation of the VRA, that should have made Alabama’s current map (which features just one predominantly Black seat) illegal. And that is what a lower-court panel initially said.

ameliatd: A lower-court panel that was not especially lefty, I might add! Two of the judges were Trump appointees.

nrakich: But then the Supreme Court put the map back in place, citing the Purcell principle, or the idea that courts shouldn’t change election laws too close to an election. (I’m sure we’ll get back to Purcell in a minute.)

However, the fact that the Supreme Court didn’t think the Alabama map was an obvious VRA violation suggested that they are setting themselves up to reinterpret/gut the VRA yet again. (The Alabama case is still pending before the court and should be handed down next year.)

That part didn’t necessarily surprise me, though. This court has been very hostile to the VRA. Plus, saying that Alabama had to draw a second Black seat would have essentially required Louisiana and other Southern states that have short-changed Black representation to add a Black seat too, which would be a real blow to Republicans.

ameliatd: Yes, there have been signs that the conservative justices were gearing up to take aim at Section 2 of the VRA (the part that has to do with majority-minority districts). This is, of course, nearly ten years after the Roberts court gutted Section 5 of the VRA, which allowed nine Southern states with histories of racial discrimination in voting to change their election laws without having to get permission from the federal government. Since then, research has found that those states have purged voters at higher rates and passed new laws restricting voting.

nrakich: And, regardless of how they present themselves, several justices seem pretty transparent in their desire for Republican governance.

ameliatd: On that note, Nathaniel, the court’s use of the Purcell principle was … interesting. 

cwick: Can’t believe it hasn’t been renamed the Garland Principle.

ameliatd: In the Alabama case, the justices said that it was too close to the election to change the maps, which of course favored the Republicans. They said the same thing when it came to North Carolina’s map, which favored Democrats. All well and good, right? But then they threw out a Wisconsin Supreme Court ruling that adopted the Democratic governor’s legislative maps only four months before the primaries.

nrakich: Yeah, the court didn’t cite Purcell in that case, even though they did in the Alabama case when there were also just four months to go until the primary! The Purcell principle is a convenient tool because it can be used to suit your desired ends. Did a court strike down a map you like? You can say it’s too close to the election to make a change and undo that decision. Did a court implement a map you don’t like? You can say there’s still time to fix it and undo that decision too. There’s no specific set time period that triggers Purcell.

ameliatd: And you might think that the North Carolina ruling was an uncharacteristically positive outcome for Democrats from this Supreme Court, but even though the short-term outcome was good for Democrats, that case could be very bad for them in the long term.

cwick: Why very bad in the long term?

ameliatd: The Supreme Court ruled on the North Carolina map on its shadow docket, which meant that it was an emergency application without extensive briefing or oral argument. But the justices signaled that they could take the case next term. And if they do, they could end up ruling that state courts can’t change congressional maps that were drawn by state legislatures — which, given our earlier discussion about how active state courts have been this year, would be a big deal.

nrakich: Yes, this is known as the “independent state legislative doctrine.” Because the Constitution specifically says that state legislatures are in charge of setting election law, some conservatives believe that no one else — not even state courts — can change it.

cwick: We all have the ISLD memorized, Nathaniel.

nrakich: North Carolina Republicans have already filed a petition with the Supreme Court challenging the state’s new congressional map on these grounds. If the court takes the case and rules in their favor, state courts will be taken out of the business of litigating partisan gerrymandering — in direct contradiction to that famous opinion in Rucho v. Common Cause, which, in barring federal courts from deciding questions of partisan gerrymandering, specifically mentioned state constitutions as an alternative remedy.

Not only that, but state courts would also be barred from overturning discriminatory voter restrictions. And independent redistricting commissions could be in danger too, since they aren’t the legislature, and under the ISLD only legislatures can draw maps.

ameliatd: This is another sign of how much the Supreme Court has changed since even a few years ago! Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch all suggested that they would have blocked the North Carolina map, and Justice Brett Kavanaugh suggested that he wanted to address the question — just not on the shadow docket. Which means that Justice Amy Coney Barrett could be the swing vote.

Sooo Nathaniel … it seems like the court battles over this cycle of redistricting may get even fiercer, eh?

nrakich: For sure. These court battles are far from over. Several cases, like those in North Carolina and Ohio, are still pending. I expect to see multiple congressional maps tossed in the middle of the decade as courts finally get around to hearing some of these cases. And if the Supreme Court makes a precedent-shattering ruling, like gutting the VRA or embracing the ISLD, I bet several other states will reopen their congressional maps to take advantage of the new opportunities to gerrymander that are created.

cwick: Phew, I thought I’d have to wait until 2030 to go through all of this again.

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