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Redistricting and the Coming Collisions Between Partisans and Courts

As state courts prepare to weigh in on accusations of gerrymandering, lawmakers across the country are hard at work trying to change those courts’ ideological balance.

The Florida Supreme Court building in Tallahassee, Fla.
The Florida Supreme Court building in Tallahassee, Fla.
(Scott Keeler/Times/TNS)
With new Census data in hand, legislatures across the country are already at work redrawing election districts, and many of them will try to skew those districts to benefit their party’s congressional and legislative candidates. Inevitably, voters and party organizations will ask state courts to decide whether the gerrymandered districts violate their respective state constitutions.

The previous redistricting cycle resulted in litigation in many states, and a few state courts did order new districts. The new districts ordered by courts in North Carolina and Pennsylvania, for example, were crucial to Democrats maintaining their majority in the U.S. House of Representatives.

Similar lawsuits are expected this year in states where one party controls the redistricting process but not the state’s supreme court. In many of these states, legislators have proposed radical changes to judicial elections, sometimes with the explicit goal of changing the ideological direction of the courts that will likely rule their new election maps. Voters in some Midwestern states have approved new redistricting reforms, and the high courts tasked with interpreting the new rules are facing pivotal elections to determine control of those courts.

In some states with divided government, pending lawsuits have already asked the courts to draw new districts if the political branches deadlock. In Wisconsin, where the governor is a Democrat, the Republican-controlled Legislature has called on the conservative state Supreme Court to draw districts, while Democrats have asked federal courts to intervene. The other lawsuits are also in states with Democratic governors and Republican-controlled legislatures, such as Pennsylvania. In 2018, the Democrat-dominated Pennsylvania Supreme Court struck down congressional districts for violating the constitutional right to “free and fair” elections.

North Carolina’s election districts — both congressional and legislative — were struck down by state courts in the fall of 2019, just weeks after the U.S. Supreme Court ruled that federal courts can’t police partisan gerrymandering. A state court ruled that “extreme partisan bias” in election districts violated the rights of voters under the North Carolina constitution. Republican legislators didn’t appeal the ruling to the state Supreme Court, which had a 6-1 Democratic majority at the time. The outcome had been anticipated since the election of a progressive majority to the high court in 2016. Republican legislators, who acknowledged skewing the districts to help the GOP, had repeatedly tried to manipulate judicial elections or change the courts in what many observers attributed to a desire to preserve their election districts.

Because North Carolina’s redistricting process doesn’t include the governor, the Republican-led Legislature will redraw the districts again this year. Any attempted gerrymander could face roadblocks at the state Supreme Court, where the current narrow 4-3 Democratic majority is up for grabs in next year’s election.

Similar redistricting battles, along with efforts to change the makeup of the state courts that rule on new political maps, are brewing across the country. In Alaska, for instance, the state Supreme Court struck down election districts in 2012, and since then Republican lawmakers have tried to change how judges are chosen. The court could intervene again this year if the state redistricting commission, which includes a narrow GOP majority, draws districts that Democrats perceive as unfair.

The Florida Supreme Court in 2015 struck down the state’s congressional districts for violating a voter-approved requirement that districts not favor either party. But Republican Gov. Ron DeSantis, who has the authority to appoint most members of the state’s judicial nominating commission, has shifted the high court far to the right with his appointments, and the court is rapidly rolling back precedents established by the previous liberal majorities. This time around, the justices may not be as eager to strike down the Republican-led Legislature’s districts.

In Massachusetts, Democratic legislators have enough votes to override the Republican governor’s veto, giving them the chance to gerrymander districts to favor their party. The state’s Supreme Judicial Court would hear any lawsuits over the districts, and all seven justices were appointed by the Republican governor from a list drawn up by a nominating commission. In 2019, legislators proposed a bipartisan bill that, had it passed, would have given Democrats power to unseat incumbent justices.

In three Midwestern states, the two parties are battling for control of the courts that will likely weigh in on redistricting. Democrats won pivotal high-court elections last year in Ohio and Michigan, where voters have approved a new redistricting process. Illinois Democrats lost a high-court election last year in a district that has since been redrawn by the Legislature.

Democrats won a majority on the Michigan Supreme Court in 2020, and they’ve already had to weigh in on the new redistricting commission, which was approved by voters in 2018 after the revelation of a 2011 email from a lawyer for the Michigan Chamber of Commerce who helped redraw districts. The lawyer for the Chamber, which has spent millions of dollars to elect Republican high-court candidates, had said the map-drawers had “spent a lot of time providing options to ensure we have a solid 9-5 [U.S. House] delegation in 2012 and beyond.” The 9-5 congressional imbalance remained through two election cycles, when Democrats got more total votes.

Ohio’s election districts were also gerrymandered by Republican legislators in the last redistricting cycle. And the state Supreme Court, which has long had a GOP majority, signed off on the districts in 2012. Since then, voters have approved amendments creating a bipartisan redistricting commission that includes elected officials. If the commission’s districts don’t garner bipartisan support after two attempts, the Legislature can draw districts on party lines, but those districts are only in place for four years. The Ohio Supreme Court, which currently has a 4-3 Republican majority, could end up weighing in. Democrats will have the chance to win a court majority next year, and the Legislature recently made high-court elections partisan.

The Democratic majority in the Illinois statehouse has already passed new legislative election districts, and some Republicans argued that they’re skewed to benefit Democrats. The state Supreme Court, which has a Democratic majority, upheld the Legislature’s previous districts. But the GOP will have the chance to gain a majority on the high court in next year’s election, after a Democratic justice was unseated by voters last year.

In June, the Illinois Legislature passed a bill that redrew high-court election districts, including the district where the justice was unseated and where outdated boundaries had grown to favor the GOP. When lawmakers changed the districts, Republicans accused them of gerrymandering high-court elections. It won’t be the last such accusation as lawmakers redraw election districts across America.
Billy Corriher is a writer whose work focuses on judges, voting rights and the courts. He can be reached at billy@thesupremecourts.org.
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