What Democrats and Republicans Agree On: Gerrymandering the Courts

Last Monday, Republicans in the Louisiana House tried to pass a proposed constitutional amendment to redraw election districts for the state Supreme Court, while adding two seats to it. The effort came up short, but it was just the latest move by a state legislature to try to change how high court justices are elected. Just three days earlier, Illinois Gov. J.B. Pritzker, a Democrat, signed a bill that redraws election districts for his state’s Supreme Court, a move observers believe is aimed at maintaining his party’s 4-3 majority in next year's elections. And Republicans in Montana and Pennsylvania passed bills in the past year to create districts for their high courts, both of which currently have progressive majorities and whose members are now elected statewide.

Why the rush to create new supreme court election districts? Aside from ideological considerations, the high courts will likely have an opportunity to rule on the congressional and legislative election districts that will be drawn later this year. The Pennsylvania Supreme Court, for example, ruled in 2018 that lawmakers had violated the state constitution by gerrymandering congressional districts. The Republican-led Legislature responded by trying to impeach the justices who ruled against it, and it passed an amendment last year that, if approved a second time by lawmakers and then ratified by the voters, would allow legislators to draw districts that advantage Republican candidates.

For those who don’t think judicial gerrymandering is good for democracy, the solution is clear: Instead of politicians redrawing judicial election districts on party-line votes, states should establish independent, nonpartisan redistricting processes. They could create new entities modeled on existing redistricting commissions, but they must include experts on judicial administration, prioritizing criteria like court workloads and judicial diversity.

What we see now in states across the country, however, is politicians gerrymandering the courts — redrawing high court election districts in ways that favor their party’s candidates.

KEEPING CONTROL IN ILLINOIS

Illinois voters ousted a Democratic justice last November, setting up the potential for the GOP to gain a majority in next year’s elections. Voters in the Third District, which had become more conservative in the decades since it was drawn, failed to give Justice Thomas Kilbride the required 60 percent approval needed to keep his seat in the nonpartisan “retention” election. Billionaire Ken Griffin donated millions of dollars to a group that ran ads attacking the incumbent.

Soon after Kilbride lost, Democratic legislators decided to redraw the districts for the high court. There were wild population disparities among the previous districts, and advocates of redistricting argued that two of the districts, including the Third, favored the GOP. The new Third District includes two arms that stretch south from the Chicago suburbs and west into the middle of Northern Illinois. Unlike Kilbride’s district, the new version excludes rural counties along the border with Iowa.

Republicans argue that the new district, where the pivotal election will occur next year, favors Democrats. Senate Minority Leader Dan McConchie said the bill drags the state Supreme Court into “the same behind-closed-doors deal-making that is so indicative of the machine politics that has ruled this state for so long.”

Yet the last time Republicans controlled the Legislature, in January 1997, they passed a bill that would have redrawn the districts. The state Supreme Court struck it down for violating the state constitution’s requirement that three justices be elected from a single district in Cook County, which includes Chicago. Conservatives have long complained that this mandate disadvantages Republicans.

BIG CHANGES IN MONTANA

This year, Republicans control the executive and legislative branches of Montana’s government for the first time in decades, but their deregulatory agenda could face roadblocks at the state Supreme Court, which has halted some mining projects in recent years.

Lawmakers have considered several changes to judicial elections, including a bill to make them partisan. Like Republicans in other states, Montana legislators recently eliminated the commission that screened potential judicial nominees and selected the most qualified candidates, from which the governor chose a nominee.

Lawmakers also put an amendment on the ballot next year to establish seven districts for high court elections, one for each justice. The Legislature approved the amendment last month on a mostly party-line vote, with a handful of Republicans voting no.

The amendment was sponsored by Rep. Barry Usher, a Republican affiliated with a group that has spent big in Montana Supreme Court elections. Usher said the districts “would help get our Supreme Court a little more aligned with our electorate.” The districts were drawn with the help of a Republican consultant who previously worked for a conservative high court candidate, and Democrats argued the districts would unfairly help GOP candidates.

LOUISIANA HOUSE DIVIDED

The Louisiana Senate, facing a lawsuit demanding new districts for the state Supreme Court, passed a constitutional amendment with bipartisan support in April to redraw the districts and add two seats to the court. If ratified by the voters, the amendment would have created a nine-member court and required lawmakers to redraw its election districts after every census.

But when the amendment reached the House, Democrats began to criticize it. Republicans voted against adding language proposed by Democrats that would have required legislators drawing the districts to give Black voters an equal opportunity to “elect candidates of their choice,” language borrowed from the Voting Rights Act.

Louisiana’s population is around one-third African American, but only one of its seven justices is Black. Democrats pointed out that if the goal of the amendment was proportional representation, three of the nine districts would include a mostly Black voting-age population.

House Republicans held a vote on the amendment last Monday, and it failed by several votes. The amendment probably wouldn’t have made it that far if not for the lawsuit filed by voting-rights groups two years ago challenging the lack of diversity on the high court. The court’s lone Black justice occupies a seat that was created in the 1990s, after the U.S. Supreme Court ruled that the Voting Rights Act required the state to avoid diluting the political power of Black voters when drawing judicial election districts.

Though the amendment lost bipartisan support in the House, it would have required future legislators to cobble together a bipartisan two-thirds supermajority to redraw the districts. If they couldn’t, the court would have been in charge of drawing its own districts.

Bipartisanship itself shouldn’t necessarily be the goal of judicial redistricting, but states should have a process for making changes to the courts as their populations change, without a fierce political battle every time. States shouldn’t have to go decades without revising their judicial election districts. For now, however, it's likely that we'll see more of the same partisan warfare over the courts that has unfolded in state capitols across the country this year.

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