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 most the fifth such ruling by a state court in this cycle. A map drawn by Maryland’s state legislature was deemed too partisan. The map also fell in Maryland, while Republican-drawn maps in Kansas, North Carolina, Ohio were also tossed.
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.
Lakshya Jin, a lecturer from the University of California Berkeley who writes on redistricting at Split Ticket, said that Democratic judges aren’t as inclined 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. The GOP-controlled legislature was passed by Ron DeSantis. 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 took the most gerrymandered American history map and allowed it to stand, it would be a complete abdication from the rule of law.
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.
With Republicans in control of a large number of congressional seats, Democrats were anxious to begin the once-in-a decade redistricting cycle. 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.
The Democrats were able to shift the average House seat within five points of President Joe Biden’s victory margin 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.
A legal ruling at the end of the last redistricting cycle is responsible for the recent flurry state court actions. 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.
This facilitated redistricting litigation to be brought into state courts. According to Michael Li, the Brennan Center for Social Justice which argues against gerrymandering, and for redistricting legislation reform, state courts have in many ways been the hero of this cycle.
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 are still 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 ones located 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. A Democratic proposal to do just that was defeated in Congress earlier this year. So, Almeida said, we are taking the wins that we can take.”
