After New York state’s top court this week crushed Democratic hopes of coming out ahead in this decade’s redistricting cycle, the party faces an increasingly precarious legal environment in the hyper-partisan battle over drawing legislative lines.
New York’s Court of Appeals on Wednesday overturned a map that Democrats muscled through the state legislature there, deciding that a nonpartisan expert will instead draw the lines for the state’s 26 congressional districts. It was at least the fifth such ruling by a state court in this cycle. The map drawn by the state legislature in Maryland was also invalidated. Republican-drawn maps in Kansas, North Carolina, Ohio were also tossed out.
Still, Republicans are favored to win state Supreme Court races in North Carolina and Ohio in November that’d enable those GOP-controlled legislatures to implement more partisan maps before 2024. In contrast, the 4-3 New York decision came from a court appointed entirely by Democrats, a party that now finds itself bound to a bipartisan process written into the state’s constitution.
According to Lakshya jain, a lecturer at University of California-Berkeley, who writes about redistricting on Split Ticket, Democratic judges aren’t as likely to allow extreme partisan gerrymandering. Democrats for a long time have been pushing for redistricting reform and anti-gerrymandering legislation, Jain noted, and that seeps into their judges’ preferences.
Florida is the most important test of this potential legal inequalities. Democrats and civil rights groups are challenging a congressional grid that Republican Gov. Rick Scott has drawn. Ron DeSantis was instrumental in passing the GOP-controlled legislature. Legislators had initially balked at the map, which aggressively favors their party, because it dismantles two plurality-Black districts in possible violation of the state’s Fair Districts Amendment, which requires lawmakers to draw districts that let racial and linguistic minorities pick their chosen representatives.
Republicans insist they’ve followed the law in Florida, though many legal experts disagree.
Douglas Spencer, a University of Colorado-Boulder law professor, said that this is not an difficult legal question. If they take the most gerrymandered American map and allow it to stand, that would be a complete abdication in the rule of legal.
Spencer said he’s optimistic Florida’s state supreme court will ultimately strike down the map but notes he’s in a minority among redistricting experts. That’s because six of the seven members of the state supreme court were appointed by Republican governors.
The once-in-a-decade redistricting process was a nervous start for Democrats, with Republicans in control of drawing far more congressional seats. That’s due to a combination of GOP success in state elections and that Democrats’ reform push has led them to cede line-drawing power to independent commissions in states they control, like Colorado.
However, Democrats were successful in shifting the typical House seat to within President Joe Biden’s five-point margin for victory in 2020. Until the end of the New York and Florida litigation, it’s impossible to precisely evaluate how the party did, but it’s likely the map will still lean more toward Democrats than after 2010, when Republicans used their statehouse dominance to try to lock in a House majority through partisan maps. But much of Democrats’ gains came in New York, the most populous state where the party controlled line-drawing and one where it stood to net as many as four House seats in its partisan map.
The recent flurry in state court actions is due to a legal ruling made at the tail end the last redistricting cycles. In 2019, the U.S. Supreme Court’s conservative majority ruled that federal courts have no role in policing partisan gerrymanders, or maps drawn explicitly to benefit one party by contorting lines to capture enough of its voters to reliably win elections.
Redistricting litigation was then transferred to state courts. The Brennan Center for Social Justice’s Michael Li said that state courts have been in many ways the hero of this cycle. He argued against gerrymandering as well as for redistricting reform.
But Li noted state courts have vulnerabilities that the federal system doesn’t have. Many state courts’ compositions change from election-to-election, making decisions in places like Ohio and North Carolina dependent upon which party is in power in November. In some states, such as New York, state courts are uneven. They aggressively challenge gerrymanders while in Texas, the state supreme courts is so conservative that civil right groups have not bothered to ask for its help.
There’s even more uncertainty over the legal landscape of redistricting this cycle because the conservative majority on the U.S. Supreme Court has indicated it may rewrite the rules that govern the drawing of legislative districts. In February, conservatives on the court said they may revise the standards on how to draw districts that comply with the Voting Right Act’s requirement that minorities get a chance to choose their own representatives and are not simply scattered among voters of other races. And in March, four conservative justices indicated they wanted to consider Republican lawyers’ arguments that only state legislatures and not state courts have the say in drawing congressional maps.
Redistricting reformers stated that they remain encouraged by the way courts have performed so far in this cycle. Suzanne Almeida from Common Cause, a frequent litigant who opposes gerrymanders noted that courts in Republican States like Ohio have joined those in deep Democratic States like New York in removing partisan maps.
If I ran the world,” Almeida said, there’d be national standards against gerrymandering to ensure skewed maps in one big state don’t tilt the entire congressional map. An earlier Democratic proposal for exactly that fell on deaf ears in Congress. So, Almeida said, we are taking the wins that we can take.”
