Redistricting Cases Could Redefine State and U.S. Politics in 2018

More than a dozen cases on partisan and racial gerrymandering are winding their way through the court system. Two cases, in particular, could become two of the most important this decade.
by | January 4, 2018
U.S. Supreme Court Justice Anthony Kennedy, center, could hold the decisive vote in two partisan-gerrymandering cases. (TNS/Charles Dharapak)

This year could be a pivotal one for redistricting and the courts. That’s because there are two cases before the U.S. Supreme Court that could drastically reshape how lines are drawn. These cases deal with the issue of partisan gerrymandering -- the question of how much partisanship is too much.

Partisan gerrymandering cases “have the potential to be the biggest democracy cases, not just of this court term, but in decades,” says Michael Li, senior counsel for the Brennan Center for Justice at the New York University School of Law. “That’s because the Supreme Court hasn’t put excessive partisanship out of bounds in the way that it has excessive consideration of race.”

The two Supreme Court cases this term on partisan redistricting -- Gill v. Whitford from Wisconsin and Benisek v. Lamone from Maryland -- could become “the most important cases of this decade [on redistricting],” agrees Peter S. Wattson, an expert on the issue who worked for more than 40 years with the Minnesota Legislature.

For years, the U.S. Supreme Court has ruled that partisan redistricting in and of itself is not unconstitutional. The seminal case on the issue was Davis v. Bandemer in 1986 when the court was asked whether Indiana's state apportionment in 1981 violated the Equal Protection Clause of the 14th Amendment. The justices, by a 7-2 margin, ruled that the discriminatory effect on Democrats was not "sufficiently adverse" to violate the Constitution's Equal Protection Clause, thus setting a high bar for proving an excess of partisanship in redistricting. In fact, the bar was so high that partisan redistricting was pushed to the judicial back burner for almost two decades.

The issue reemerged in the 2004 case Vieth v. Jubelirer in which Pennsylvania Democrats sued over a Republican-led redistricting map they considered biased. Justice Anthony Kennedy wrote in his concurring opinion to a split decision that the issue should be revisited if a good standard for identifying partisan gerrymandering is found.

That day may have arrived with Gill v. Whitford.

The plaintiffs have offered a measurement called the “efficiency gap” that factors in how many of one party’s votes are “wasted” in safe district. (Here’s a good explanation of the measurement.)

The justices also agreed to hear a second partisan redistricting case, Benisek v. Lamone. Legal experts have speculated that some justices may want to hear cases that affect both Republican and Democratic if they are going to make a landmark decision on partisan redistricting. The pairing of these two cases would allow them to do that: affirming Whitford could benefit Democrats, while overturning Benisek could help Republicans.

More than a decade after Kennedy’s pivotal role in Vieth v. Jubelirer, all eyes are on him. When journalist Richard E. Cohen reviewed the lawyers’ filings for Whitford, he wrote in the Cook Political Report that he found a widespread “expectation that the outcome of the Wisconsin case will swing on the decision of Justice Anthony Kennedy.”

Justin Levitt, a professor at Loyola Law School and author of the All About Redistricting website, says the focus on Kennedy is justified. “He's left enough tea leaves at this point that I think different advocates can find something supporting their preferred position, no matter what that position is,” he says. “But anyone who tells you they know what he'll do is either Justice Kennedy or is making it up.”

While the partisan redistricting cases are the highest-profile elements of the current redistricting docket, they are not the only ones. In fact, between partisan redistricting and racial redistricting cases, Governing found there are at least 15 cases working their way through the courts. Each could have significant impacts locally for either state legislative seats or U.S. House districts, and a few will have their influence felt nationally.

Here’s our rundown, assembled with the assistance of Levitt, the Brennan Center’s redistricting website and Wattson. We’ve grouped the cases by the primary legal argument being aired. Within each of those groupings, the cases are listed in descending order of prominence and impact, as best the experts we interviewed can tell.

 

Partisan Gerrymandering Cases

State: Wisconsin

Seats affected: State legislature

Case: Gill v. Whitford

History: A federal three-judge panel has sided with plaintiffs alleging a Republican partisan gerrymander from 2011. The panel found that the map had bad intent and bad effect, and they ordered that a new state Assembly map be drawn. But they rejected another request by the plaintiffs -- that the map be drawn by judges, not politicians. The state appealed to the U.S. Supreme Court, and the justices agreed to hear the case. Oral arguments were held in October, and a ruling is expected this spring.

Expected partisan impact: This case could have significant micro- and macro-level effects. The existing maps are solidly Republican and any changes would almost certainly benefit the Democrats. A win for the plaintiffs would create a landmark piece of jurisprudence enabling challenges to overly partisan gerrymanders.

 

State: Maryland

Seats affected: U.S. House

Case: Benisek v. Lamone

History: Plaintiffs initially sued in federal court in 2013 arguing that a single U.S. House seat in Maryland, which had been redrawn under the state’s post-2010 Census congressional redistricting, was a partisan gerrymander favoring the Democrats. A three-judge panel denied a request by the plaintiffs for an injunction blocking the map and stayed further action until the U.S. Supreme Court ruled on the Wisconsin partisan gerrymandering case. The U.S. Supreme Court on Dec. 8 agreed to hear an appeal of the case.

Expected partisan impact: On the microlevel, Republicans would certainly benefit from a finding confirming a partisan gerrymander. Under the current lines, as many Republicans as possible are jammed into one district, leaving the other seven drawn to benefit the Democrats. That makes a 7-to-1 U.S. House delegation edge in a state with a Democratic registration advantage of a little over 2-to-1. The bigger impact, however, would be on the macro-level. A victory for the plaintiffs -- presumably one in tandem with Gill v. Whitford -- would create a new Supreme Court precedent enabling challenges to redistricting maps drawn with too heavy a partisan lean.

 

State: North Carolina

Seats affected: U.S. House

Case: Harris v. Cooper

History: This case began as a racial gerrymandering challenge to North Carolina’s congressional map; the plaintiffs convinced a federal three-judge panel, which led to a redrawing of the map. But after the redrawing, the plaintiffs sought to enjoin the new map, arguing that it was now a partisan gerrymander instead. A three-judge panel was not persuaded, but the plaintiffs are now appealing to the U.S. Supreme Court.

Expected partisan impact: The impact of the case depends entirely on rulings in more prominent partisan gerrymander cases.

 

State: Pennsylvania

Case: Agre v. Wolf

Seats affected: U.S. House

History: Plaintiffs filed a federal lawsuit challenging Pennsylvania’s 2011 congressional map as a partisan gerrymander and seeking new lines before the 2018 midterm elections. On Nov. 7 and 30, a three-judge court dismissed the plaintiffs' claims under the 1st Amendment and the 14th Amendment, while allowing their claims under the Elections Clause of the U.S. Constitution to proceed. A trial was completed in early December, with a decision pending.

Expected partisan impact: The Democrats would gain from throwing out a GOP-designed map that currently seats five Democrats out of 18 House seats. “Most affected in any possible change could be the districts in the Philadelphia suburbs,” says Terry Madonna, a Franklin & Marshall political scientist. Pittsburgh-area districts could also change.

 

State: Pennsylvania

Case: League of Women Voters v. Pennsylvania General Assembly

Seats affected: U.S. House

History: This suit was filed on June 15, in state court rather than federal court. The plaintiffs seek to invalidate the state’s 2011 congressional map on partisan gerrymanding grounds, using provisions of the state constitution. In late December, the judge ruled that the seats were drawn to aid the GOP, but that they were not drawn in a way that was unconstitutional. But the state Supreme Court has a Democratic majority, so this ruling could be overturned.

Expected partisan impact: Again, the Democrats would gain from throwing out a GOP-designed map that currently favors Republicans.

 

State: Pennsylvania

Case: Diamond v. Torres

Seats affected: U.S. House

History: This is a partisan gerrymandering challenge to the congressional districts, but on a different theory. On Nov. 22, a federal district court stayed further action until the Agre v. Wolf trial is complete.

Expected partisan impact: There is no expected impact until the other Pennsylvania cases are adjudicated.

 

State: North Carolina

Seats affected: U.S. House

Case: Common Cause v. Rucho

History: This is a challenge to the remedial congressional map drawn in 2016 on the grounds of partisan gerrymandering. A three-judge federal panel conducted a four-day trial in October, and a decision is pending.

Expected partisan impact: “The outcome of partisan gerrymandering cases could have a big impact on North Carolina’s congressional and legislative districts,” says Jonathan Kappler, executive director of the North Carolina Free Enterprise Foundation, “but until we have more specific rulings and guidance from the U.S. Supreme Court, the political consequences are unknown.”

 

State: Michigan

Seats affected: Legislative

Case: League of Women Voters v. Johnson

History: The Michigan League of Women Voters and 11 Democrats filed suit to challenge a Republican legislative map on Dec. 22, on partisan gerrymander grounds.

Expected partisan impact: The Democrats stand to gain -- the GOP holds both chambers in this swing state -- but this case is so new that it’s premature to predict how it will play out.

 

Racial Gerrymandering Cases

State: Texas

Seats affected: U.S. House and state legislature

Case: Abbott v. Perez

History: This two-part case -- congressional and legislative seats -- stems from a lawsuit filed in 2011 asserting that both maps drawn by Republicans violated the Voting Rights Act. The rulings were later applied to maps redrawn in 2013. In March, a panel of federal judges ruled, 2-1, that four congressional districts were invalid, including some because they were deliberately drawn to injure voters on the basis of race – potentially a more serious problem than other racial gerrymanders. (Two of the districts, drawn by the legislature in 2011, had already been redrawn by the court in 2012 and enacted by the legislature in 2013, so only two districts remained to be redrawn in 2017.) The following month, by the same 2-1 margin, the panel ruled that several state House districts were problematic as well. In a series of rulings in August, the court ordered the state to redraw both maps. But in September, the U.S. Supreme Court’s conservative majority stayed the redrawing pending an appeal, handing Republicans at least a temporary victory. The existing districts are expected to stand for the 2018 election.

Expected partisan impact: “The most likely outcome of a redrawing of the state’s congressional districts would be to reduce the number of Republican seats by one,” says Rice University political scientist Mark P. Jones. But given that a new round of redistricting is set to follow the 2020 Census, any new lines would only impact the partisan balance in the 2020 election. “I don’t think there is too much concern among the GOP elite, because they feel they have a reasonable prospect for victory in the Supreme Court, and, even if the justices find the districts unconstitutional, Republicans would still be able to control the districting process in the 2019 legislative session.”

 

State: Virginia

Seats affected: State legislature

Case: Bethune-Hill v. Virginia State Board of Elections

History: In 2014, a group of plaintiffs challenged Virginia’s 2011 Republican-drawn state legislative map on racial grounds. Their argument was rejected by a federal three-judge panel, and the plaintiffs appealed to the Supreme Court. On March 1, the justices, in a 6-2 decision, disagreed and returned the case to the trial court with instructions to use a new standard.

Expected partisan impact: A favorable decision for the plaintiffs “would undoubtedly help Democrats,” says Geoffrey Skelley, associate editor of Sabato’s Crystal Ball at the University of Virginia Center for Politics. “Every district in question in the case was drawn with at least a 55 percent black voting-age population. If the lines were redrawn such that more black voters ended up in nonmajority-black districts bordering the ones in question, that would undoubtedly make those bordering districts more Democratic.”

 

State: North Carolina

Seats affected: State legislature

Case: Covington v. North Carolina

History: A three-judge federal panel ruled that 28 state legislative districts had been racially gerrymandered and ordered lawmakers to redraw the districts. The legislature proceeded to do that in August, but when the court reviewed the new districts, they found several that they considered problematic. So the three-judge panel appointed a special master, Nathaniel Persily of Stanford, to redraw several districts. His proposal is slated for review by the panel in January 2018. The GOP-led legislature has indicated that if the court approves the special master’s proposal, they’ll likely appeal to the U.S. Supreme Court. The election timetable might need to be pushed back, depending on how the case plays out.

Expected partisan impact: “Even under the most optimistic takes from Democrats, it’s unlikely they would be able to break the GOP majorities in one or both chambers,” says Kappler of the North Carolina Free Enterprise Foundation. “But the real goal for Democrats is to win enough seats in one or both chambers to break the GOP supermajority, thereby making Democratic Gov. Roy Cooper’s vetoes more relevant.”

 

State: North Carolina

Seats affected: U.S. House and state legislature

Case: Dickson v. Rucho

History: The plaintiffs argue that the 2011 congressional and legislative maps are racially gerrymandered. The North Carolina Supreme Court, in a 4-2 decision, found the districts in question to be constitutional. The case then ping-ponged between the U.S. Supreme Court and the state courts. A three-judge panel at the Wake County Superior Court is currently considering the case in light of other court rulings on the North Carolina maps.

Expected partisan impact: The ruling is too far away to say definitively what the impact will be.

 

State: Georgia

Seats affected: State legislature

Case: Georgia State Conference of the NAACP v. Georgia (consolidated with the case Thompson v. Kemp)

History: Plaintiffs are challenging two state House districts from a 2015 mid-decade redistricting plan. In August, a three-judge panel dismissed partisan gerrymandering claims but did not rule on racial gerrymandering claims. Those claims are proceeding in federal district court.

Expected partisan impact: Modest, given the small number of seats in question, in a state with large Republican majorities.

 

State: Alabama

Seats affected: State legislature

Case: Alabama Legislative Black Caucus v. Alabama

History: Plaintiffs argued that the Alabama Legislature had packed too many African-Americans into certain districts when redrawing legislative lines in 2012. The case reached the U.S. Supreme Court, where in 2015 the justices -- by a 5-4 majority, including Anthony Kennedy -- sent it back to federal district court with instructions to draw new districts. The three-judge federal district court panel sided with the plaintiffs on 12 districts out of the 36 in question, barring the use of the 12 districts. The legislature enacted new maps in May 2017. The panel rejected the remaining concerns by the plaintiffs, and the time to appeal is closing.

Expected partisan impact: Given political patterns in the state, “there is no way that the current process will change GOP control of the Legislature,” says former U.S. Rep. Glen Browder, an emeritus professor of political science at Jacksonville State University.

 

Geography Cases

State: Virginia

Seats affected: State legislature

Case: Vesilind v. Virginia State Board of Elections

History: This 2015 case, being pursued in state court, challenges 11 House and Senate districts, saying they violate the state constitution by prioritizing partisan criteria over compactness. The initial ruling sided with the state, but the Virginia Supreme Court has agreed to hear the appeal.

Expected partisan impact: The impact from a pro-plaintiff ruling would be less clear for this case, says Skelley of Sabato’s Crystal Ball. However, he adds, “if we consider the potential timing of special elections under hypothetical new maps in the not-too-distant future, Democrats would be far happier to have elections in the present political environment than Republicans. President Trump is very unpopular in Virginia and Democrats showed in the November election that they’re currently more engaged and animated.”