Last week saw further headlines about Democrats advocating a partisan voting reform bill in Congress. But, by the end of the week, this latest attempt seemed doomed to fail in the face of Senators Sinema and Manchin’s opposition to reform the filibuster. President Biden himself conceded he is unsure whether Democrats can pass a voting reform bill. Still, a focal point of Democrats’ election law agenda is to change how redistricting is done at the state level. Described below are opportunities in several key states for Democrats to stop Republican-controlled redistricting through litigation.
Legal Battles Heat Up in Ohio, North Carolina, and Pennsylvania
In Ohio, the State Supreme Court struck down redistricting maps for state legislature and Congress. The case concerned whether the Republican-dominated legislature passed maps that were in line with guidelines put forth in a state constitutional amendment on redistricting, enacted by voters in 2015. The constitutional amendment said the Ohio redistricting commission should aim to match the statewide voting proportions. Though Republicans have received 54 percent of the statewide vote on average over the last decade, and Democrats have received 46 percent, the new redistricting maps made it likely Republicans would control well over 54 percent of the seats. So, Democrats brought suit.
And Republicans pushed back, arguing that because Republicans have dominated up to 81 percent of statewide races in the past decade, the state legislature maps could line up in the same proportion. The plaintiffs cried foul, alleging key Republican officials dominated the Ohio redistricting commission. Though the Ohio Supreme Court has a 4-3 Republican majority, the Republican Chief Justice voted with Democrats to strike down the maps. The ruling on the state legislature maps came first, and many saw it as a prediction of the congressional maps. These predictions were right; the Ohio Supreme Court struck down the congressional maps on the same basis the next day.
North Carolina saw a similar case this week. Here, the state legislature and congressional maps are being challenged simultaneously. However, there is no redistricting commission involved in this process; it was just the Republican-dominated state legislature that enacted these maps. Similar to Ohio, there is a state constitutional challenge centered around limitations that the state constitution places on gerrymandering. There are also statutory challenges on the basis that the new maps dilute political power and marginalize minorities. A trial court panel upheld the redistricting maps, but the case is now going to the North Carolina Supreme Court, where Democrats hold a 4-3 majority. So, many believe the legal challenges to these maps will prevail.
Finally, in Pennsylvania, the Democrat-dominated State Supreme Court declined to take over the redistricting process. The redistricting process had to go through the court system because the Republican-dominated legislature and the Democrat governor have not been able to agree on a map. If the legislature and governor cannot agree on a map by January 24, Pennsylvania’s judicial system takes over. Since Pennsylvania’s Supreme Court declined to take up the case, a lower court in the Pennsylvania judicial system will review the process. For the time being at least, a conservative judge is overseeing the case.
Cases Matter for Legislative and Congressional Maps
In Ohio, Republicans faced a setback when the Ohio Supreme Court ruled against the maps, but the rulings do not necessarily mean Republicans’ hopes are dashed. The Court called for the redistricting commission to go back to the drawing board and make a new map. Even if the revised maps are not as beneficial to Republicans as the current ones, there is a possibility that Republicans could get the Chief Justice to switch votes with only minor adjustments. Additionally, since redistricting sometimes continues into the middle of a decade, future litigation could occur with a different make-up of the Court. The Ohio Supreme Court Chief Justice is retiring and could be replaced in 2022 with a Republican who would vote with the three other Republican members of the Court on redistricting matters.
In North Carolina, the Republicans’ victory was far from determinative, and the Democrats’ majority on the North Carolina Supreme Court puts them in a strong position to strike down the map. The remedy Democrats are seeking is for the North Carolina Supreme Court to rewrite the redistricting maps. If the Court agrees, that could switch the scenario for North Carolina from where Republicans were supposed to dominate redistricting to one where Democrats could control. Still, Democrats only have a 4-3 majority on this Court, so if Republicans win one Democrat vote, they could avoid the outcome altogether.
Regarding Pennsylvania, the litigation is still in the early stages. Republicans are advancing the maps they favor, but the Democrat governor is certain to veto these maps. In 2018, when the Pennsylvania Supreme Court struck down the map Republicans passed earlier in the decade, the Pennsylvania Supreme Court ended up rewriting the maps because the state legislature and governor could not come to an agreement. If that happens again, and the Pennsylvania Supreme Court continues not to be involved, then the process could fall into the hands of the conservative Pennsylvania judge who currently has control of the case. However, if the Pennsylvania Supreme Court does intervene, Democrats have a 5-2 majority and have aggressively intervened in redistricting in the past.
States Show How Redistricting Fights Could Next Occur
These are all populous swing states. Republicans have held majorities in these legislatures for much of the last decade and continue to dominate the state legislatures. Given the Democrats’ slim majority in Congress, even just a seat or two in each state could determine control of the House of Representatives.
In 2020, Republicans dominated state legislature races, which set them up to control redistricting in several key states, including Pennsylvania, North Carolina, and Ohio. Because the United States Supreme Court previously ruled legal challenges to partisan gerrymandering are outside its authority, Democrats best recourse to challenge redistricting runs through the state courts. The Supreme Court is unlikely to intervene in redistricting cases settled in state court.
Just as one party might be unable to stop partisan redistricting in a state where they do not control the state legislature, they would also be powerless to stop any other election legislation, such as laws concerning voter ID, early voting, and mail-in voting. In Ohio and North Carolina, Democrats are positioned for victories on redistricting in states they lost in 2020. Earlier legal battles in Pennsylvania showed how it is not just the state Supreme Courts that matter, but that lower state courts can be just as influential. As a result, expect to see more money flow into state court races where the judges are elected, not appointed. Though even the state appointment process could see increased stakes, as has been the case with the federal appointment.
Many lament the partisan gridlock in Congress or feel the U.S. Supreme Court is too reluctant to hear legal challenges to election laws and redistricting, but America’s federalist system allows many avenues for advocates to pursue partisan agendas, for better or worse. Last week showed that both sides will look to state courts for opportunities to change or defend election laws.
Todd Carney is a writer based in Washington, DC. The views in this piece are his alone and do not reflect the views of his employer.