Category Archives: redistricting

Insightful Preview of Upcoming VRA Case

Linda Greenhouse has written, John Roberts’s Long Game. Is this the End of the Voting Rights Act?–an insightful preview of Merrill v. Milligan, which will be argued on October 4. The lengthy Atlantic article cuts straight to the point:

“The justices have framed the question for this round as ‘whether the State of Alabama’s 2021 redistricting plan for its seven seats in the United States House of Representatives violated Section 2 of the Voting Rights Act.’ But the real question, the perilous one underlying that seemingly benign formulation, is this: Is Section 2 itself constitutional?

The rest of the article proceeds to explain the intersections between John Roberts’s early career and the doctrinal backstory. It is too bad she did not directly explain City of Boerne v. Flores (1997) which would bolster why she is right to be concerned, but otherwise I found this a very accessible summary of the stakes.

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“Newly gerrymandered districts might hurt Democrats less than you think”

 Marion CampisiTommy RatliffStephanie Somersille and Ellen Veomett for WaPo’s Monkey Cage:

This November, members of Congress will be running in new districts based on the 2020 Census data. So how might the new district maps influence the midterm elections — and perhaps more important, which party wins control of the House?

Of course, many issues will affect that result, from the fact that the president’s party usually loses seats in the midterms, to the Supreme Court Dobbs decision, inflation, and the Trump investigations, and any surprises between now and November. We can’t offer any predictions on those factors. But our research finds that this round of gerrymandering hurt Democrats less than the maps in place during the 2020 elections for the House. Here’s how we know….

How can we calculate and compare the impact of gerrymandering across the whole country? By using a new metric that can give an idea of how many districts each party is winning due to gerrymandering in each state. We call it the “GEO metric,” for Geography and Election Outcomes.

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“Ohio Supreme Court Chief Justice Maureen O’Connor says she’ll join anti-gerrymandering effort after leaving office”

Cleveland.com:

Ohio Supreme Court Chief Justice Maureen O’Connor said Thursday she plans to campaign to try to end gerrymandering in Ohio once she leaves office at the end of the year.

O’Connor commented Thursday on her future plans during her State of the Judiciary address, the final of her judicial career as she prepares to leave office due to judicial age limits. O’Connor, a Republican, was the swing vote in numerous Ohio Supreme Court rulings this year striking down GOP-drawn maps as illegally gerrymandered.

Meanwhile, advocates behind this year’s redistricting litigation also said Thursday they’re assessing their future options as state Republicans are on the cusp of ignoring yet another Ohio Supreme Court deadline to produce a constitutional map for future elections.

O’Connor’s decision to join the court’s Democrats in a series of 4-3 rulings angered Republicans, leading them to effectively excommunicate her from the party as they accused the majority of exceeding its legal authority. As the protracted redistricting litigation caused May’s state legislative primary to be delayed until August, state lawmakers in turn threatened to impeach O’Connor or slash the court’s budget. While they didn’t follow through on their threats, state legislative leaders have taken to effectively ignoring the court’s redistricting orders as they wait for O’Connor to leave office at the end of the year.

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Missouri Files Bonkers Amicus Brief in Moore v. Harper Case Arguing That Not Even Congress Can Limit a State Legislature’s Partisan Gerrymandering

The main dispute in Moore v. Harper, currently pending before the Supreme Court, is whether state legislatures may be constrained by other state actors (such as state courts applying state constitutional provisions protecting voting rights) when they pass rules in federal elections. The argument that legislatures are unconstrained is one based on the language in the Elections Clause (Art. I, section 4) that gives state “legislatures” the right to set the “manner” of conducting congressional elections, subject to congressional override. The question is whether to read the term “legislature” in the context of a state’s lawmaking process, which normally includes state judicial review an application of the state constitution. In Moore, the North Carolina Supreme Court held that the state constitution limited the state legislature’s partisan gerrymandering of congressional districts.

A bunch of briefs got filed today supporting Petitioner and arguing that the Supreme Court can have no role. But those briefs all assume that Congress could override state legislatures on setting rules for congressional redistricting.

All except for Missouri’s brief, for John Ashcroft, the Secretary of State. It makes a convoluted legal argument that redistricting is not a “manner” of conducting elections, and so the Elections Clause would not apply. Under this argument, Congress would have no power to override a state partisan gerrymander of congressional districts. In this view, under the Tenth Amendment, Congress cannot say anything about how states redistrict for congressional elections. From the brief at page 22: “Suppose the Missouri legislature passes a 7R-1D map; absent compactness or racial concerns, can Congress nevertheless revise that map as a 4R-4D map? If Congress can ‘make or alter’ state maps, can it do so for purely partisan reasons?” So the state legislature can engage in whatever partisan gerrymandering it wants, but Congress can do nothing.

Missouri’s theory is bonkers for a few reasons. First, if it were true that redistricting was not covered by the Elections Clause and Congress had no role, why would it follow that the Constitution gives plenary power to gerrymander to the state legislature? Instead, the power to draw districts would be determined under state law, which presumably includes the state supreme court applying the state constitution.

If Missouri was correct, then Congress would lack the power it currently asserts in a federal statute to require congressional redistricting to be done with single member districts.

And if Missouri was correct, then the Supreme Court in a series of cases in which the Court noted that Congress could act to regulate redistricting were wrong. Missouri’s brief on that point says: “To the extent the Court concludes Rucho, Arizona State Legislature, and Vieth nevertheless control, for the reasons articulated in this Brief, those cases should be overruled to the extent they conclude redistricting falls within the ambit of the Elections Clause. See, e.g., Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2265 (2022) (‘An erroneous interpretation of the Constitution is always important’ under existing stare decisis doctrine).”

And if Missouri was correct, it would mean that Congress would lack the power under the Voting Rights Act to require minority voting rights to be considered in drawing congressional districts. This last point shows that Missouri ignores Congress’s other powers to act to regulate redistricting, such as enforcing the 14th and 15th amendments.

I don’t expect this argument to get traction. But I’m surprised that Missouri would go out on a limb like this.

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“All pain, whose gain? The surprising implications of a new legal theory for redistricting”

Sam Wang:

Lots of pixels have been spilled on a legal theory once considered fringe, the Independent State Legislature doctrine. This theory threatens to wreak havoc with centuries of election law. Two upcoming Supreme Court redistricting cases cite this doctrine. Both are brought by Republican-controlled legislatures, so you’d think it would be of net benefit to their party. I did the math. Like the web ads say, the answer might surprise you.

Until recently, the theory was considered radical. It is based on Article I and II of the Constitution, which assign state-level power to regulate federal elections to legislatures. In two cases, Moore v. Harper and Costello v. Carter, lawyers representing Republican legislators question how much of a role the word “legislature” leaves for state courts.

A favorable ruling would go against precedents going back to George Washington’s first term of office. Ironically, the North Carolina General Assembly itself, represented in Moore v. Harper, passed a law two decades ago explicitly handing authority over redistricting to the state Supreme Court they now oppose. But recent Supreme Court rulings – on abortion, on religious expression, and on election law – make clear that the Court is unafraid to break from the past when there’s power or policy at stake.

If the Supreme Court does rule in favor of the theory, voters across the nation will take a major hit in the form of fewer competitive seats. Legislators generally draw safer districts than courts or independent commissions. I have analyzed ten states whose redistricting will potentially be affected by the ISL doctrine. In these states, up to 25 competitive Congressional districts would be replaced by single party-drawn plans. That’s over half of the competitive districts drawn this year! (Contrary to what is being said out there, there’s actually a fair lot of competition in the new maps. That’s a topic for a different day.)

The Independent State Legislature theory would disrupt the partisan balance that has emerged in many states. To determine this, I estimated what a party-blind redistricting process would produce in the ten states* that would be currently affected by the theory. The Princeton Gerrymandering Project has performed computer simulations** and used fairness metrics to identify neutral ranges of outcomes. Only two states, both under single-party control, have outcomes outside the range, Florida (R) and Maryland (D). Left unchecked, single-party control would let the other eight states join them.

However, Congressional power is determined not by single states, but by their combined total representation. So let’s add it all up….

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“Can computer simulations help fix democracy?”

WaPo:

After the release of the 2020 Census, legislatures across the country redrew their states’ congressional district maps, just like they do every decade. And, just like every decade, aggrieved citizens sued them for gerrymandering — the process whereby politicians craft district boundaries to ensure their own parties’ victory.

But this time around, something has changed. A technological revolution, decades in the making, has added a sharp new arrow to those citizens’ quiver of legal arguments. Known as algorithmic redistricting, the technology has persuaded judges to throw out gerrymandered maps in several states, including New York and Ohio.And it will be part of a case before the Supreme Court in October that could play a role in the 2024 election and the future of voting rights.

Here is how it works.

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“Activists in Florida say Black voters have seen their political power curtailed”

NPR:

A combination of new election laws and congressional redistricting has made it harder for Black communities in Florida to organize and vote, activists say.

Florida, which concludes its primary elections on Tuesday, is among various Republican-led states that have passed laws since the 2020 election that place new restrictions on voters — as well as on third-party groups that play a big role in registering racial minorities in Florida.

Ben Frazier and his small civil rights organization, the Northside Coalition of Jacksonville, recently spent an afternoon in the city helping a group of older Black voters update their voter registration.

That way, Frazier said, there are no issues when they go to vote.

“We don’t want your voter registration form to be thrown out for any reason,” he said. “They are doing a lot of different things to suppress the Black vote in this city and in this state.”

Last year, Republican lawmakers in Florida passed Senate Bill 90, a sweeping law requiring people to apply to vote by mail more often. It also set new limits on drop boxes. And this year, legislators passed Senate Bill 524, which creates new and harsher penalties for voter registration organizations for things like turning in forms late.Sponsor Message

And notably, Frazier said, the latter law created a new policing unit focused on voting crimes.

“I think all of that has a chilling effect. People are afraid of the police,” he said. “We know that this is one of many attempts to suppress the Black vote.”

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Must Read Michael Wines in the NYT: “Maps in Four States Were Ruled Illegal Gerrymanders. They’re Being Used Anyway.”

NYT:

Since January, judges in Alabama, Georgia, Louisiana and Ohio have found that Republican legislators illegally drew those states’ congressional maps along racial or partisan lines, or that a trial very likely would conclude that they did. In years past, judges who have reached similar findings have ordered new maps, or had an expert draw them, to ensure that coming elections were fair.

But a shift in election law philosophy at the Supreme Court, combined with a new aggressiveness among Republicans who drew the maps, has upended that model for the elections in November. This time, all four states are using the rejected maps, and questions about their legality for future elections will be hashed out in court later.

The immediate upshot, election experts say, is that Republicans almost certainly will gain more seats in midterm elections at a time when Democrats already are struggling to maintain their bare majority.

David Wasserman, who follows congressional redistricting for the Cook Political Report, said that using rejected maps in the four states, which make up nearly 10 percent of the seats in the House, was likely to hand Republicans five to seven House seats that they otherwise would not have won.

Some election law scholars say they are troubled by the consequences in the long run.

“We’re seeing a revolution in courts’ willingness to allow elections to go forward under illegal or unconstitutional rules,” Richard L. Hasen, a professor at the U.C.L.A. School of Law and the director of its Safeguarding Democracy Project, said in an interview. “And that’s creating a situation in which states are getting one free illegal election before they have to change their rules.”

Behind much of the change is the Supreme Court’s embrace of an informal legal doctrine stating that judges should not order changes in election procedures too close to an actual election. In a 2006 case, Purcell v. Gonzalez, the court refused to stop an Arizona voter ID law from taking effect days before an election because that could “result in voter confusion and consequent incentive to remain away from the polls.”

The Purcell principle, as it is called, offers almost no guidance beyond that. But the Supreme Court has significantly broadened its scope in this decade, mostly through rulings on applications that seek emergency relief such as stays of lower court rulings, in which the justices’ reasoning often is cryptic or even unexplained.

Conservatives say the Supreme Court’s wariness of interfering with election preparations is common sense.

“It creates all kinds of logistical issues. Candidates don’t know where they’re running,” said Michael A. Carvin, a lawyer at the firm Jones Day who has handled redistricting cases for Republican clients in a host of states and helped lead the legal team supporting George W. Bush in the 2000 presidential election dispute. Should the original map be upheld later, he said, returning to it would be “triply disruptive to the system.”

Critics argue, though, that the court is effectively saying that a smoothly run election is more important than a just one. And they note that the longstanding guidance in redistricting cases — from the court’s historic one person, one vote ruling in 1964 — is that using an illegal map in an election should be “the unusual case.”

The Purcell doctrine is not always applied to Republicans’ benefit. In March, the court cited an approaching primary election in refusing to block a North Carolina Supreme Court order undoing a Republican gerrymander of that state’s congressional map.

But scholars say such decisions are the exception. “It just so happens that the unexplained rules in election cases have a remarkable tendency to save Republicans and hurt Democrats,” said Steven I. Vladeck, a University of Texas law professor who addresses the issue in a forthcoming book, “The Shadow Docket.”

“It would be one thing if the court was giving us a compelling or even plausible explanation,” he added. “But the granting of a stay these days is often done with no explanation at all.”

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Cert. Petition Asserts Racial Gerrymandering of PA State Legislative Districts

Here’s the question presented by the cert petition in Benninghoff v. 2021 Legislative Reapportionment Commission, brought by Pennsylvania’s Republican House Majority Leader:

Pennsylvania’s Legislative Reapportionment Commission admittedly made extensive use of race in constructing up to 14 state legislative districts. The Commission “positioned” Pennsylvania voters into districts because of their race, drawing majority-minority and influence districts in Philadelphia, Allentown, and elsewhere, even though it admitted its use of race went well beyond what the Voting Rights Act of 1965 (the “VRA”) required. The Commission asserted race was not “predominant” because it allegedly first “focused” on traditional districting principles and its districts “performed well” on various traditional districting criteria metrics like average compactness or overall municipal splits. The Pennsylvania Supreme Court held, without written opinion, that the plan complied with the U.S. Constitution.

The question presented is whether districts drawn for transparently racial reasons, without a VRA-compliance justification, satisfy the Fourteenth Amendment merely because the redistricting authority also satisfied traditional districting principles.

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CLC on “The Supreme Court’s Role in the Degradation of U.S. Democracy”

From the first page of the hard-hitting report, available here, that Campaign Legal Center released today:

The time has come to talk about what the Supreme Court is doing to American democracy. For more than half a century—roughly during the second half of the last century—the Court played a pivotal role as a protector of democracy. Then came the Roberts Court, with the arrival of Chief Justice Roberts and Justice Alito in 2005. The Roberts Court has turned on our democracy, choosing in every important case to reach results undermining popular sovereignty and equal voting rights. This behavior has accelerated and become increasingly extreme with the arrival of Justices Gorsuch, Kavanaugh, and Barrett. The Court has greenlit laws that make it harder to vote, especially for people of color, the poor, and the young, and permitted unbridled gerrymandering to entrench political factions unable to win majority approval. At the same time, the Roberts Court has invalidated or critically weakened laws designed to protect voting rights and reduce the undue influence of money in politics. These decisions, taken together, form a stark and troubling pattern of distorting democracy at every opportunity.

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2022 Cook Partisan Voting Index

Available here, with maps for each congressional district and state. “Now that all 50 states have finalized new lines for the 2022 elections, the Cook Political Report is pleased to introduce the 25th Anniversary edition of the Cook Partisan Voting Index (Cook PVI℠) for all 50 states and 435 congressional districts, reflecting new post-redistricting boundaries. First introduced in 1997, the Cook PVI measures how each state and district performs at the presidential level compared to the nation as a whole.”

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