WSJ review of Nick Seabrook’s new book, One Person, One Vote: A Surprising History of Gerrymandering in America.
Category Archives: redistricting
Opposition to Louisiana’s Request for a Supreme Court Stay in Redistricting Case Now Posted
“What We Lose When We Lose Competitive Congressional Districts”
Lee Drutman for 538:
Competitive congressional districts have been steadily disappearing for decades. In the current redistricting cycle, six highly competitive districts in the House of Representatives were drawn out of existence. The Cook Political Report estimates that less than 8 percent of congressional districts will be competitive come November.
This is a problem. It’s not because competitive districts are a powerfully moderating force on our democracy — instead, the decline of competitive districts is a problem that reflects deeper causes of partisan polarization and leaves the overwhelming majority of Americans in places where their votes don’t matter, and where parties and candidates don’t need to work for anybody’s votes.
Governing in America requires compromise. But when over 90 percent of congressional districts lean toward one of the two major parties, that means most representatives have little incentive to compromise. In fact, representatives increasingly face strong pressures to be very partisan, which has made governing very difficult.
But perhaps more importantly, when there isn’t competition, citizens and parties have little reason to show up and vote. Instead it becomes the highly organized donors and activists who are engaged, while the rest of the district is ignored. It’s true that competitive districts might not produce especially moderate candidates, but they are important when it comes to engaging and informing citizens. And this participation has valuable spillover effects for communities, well beyond our elections. …
“Pennsylvania’s congressional map returns to the court”
Much attention has been devoted recently to the increased calls for emergency relief from the Supreme Court in fast-paced ligation on the shadow docket. When the justices deny an emergency application, however, that is not necessarily the end of the road. The party that sought relief can still file a petition for certiorari seeking oral argument and full review on the merits of the larger issue, even though the court’s decision may come after the result the party had hoped to avoid has occurred. This week we highlight petitions asking the Supreme Court to consider, among other things, whether to weigh in on a major question for congressional elections that has repeatedly ricocheted around the shadow docket.
Pennsylvania lost a seat in the House of Representatives after the 2020 census, and so was required to draw a new map before the 2022 midterm elections. In January, its Republican-controlled state legislature chose a map that would have resulted in nine Democratic-leaning congressional districts and eight Republican-leaning districts. The state’s Democratic governor vetoed the map. After a flurry of litigation, the Pennsylvania Supreme Court in late February voted 4-3 to impose a different map that would favor Democrats in 10 of 17 congressional districts.
On March 7, the justices denied two emergency appeals on the shadow docket to revive the new congressional maps drawn by Republican state legislators in Pennsylvania as well as in North Carolina. Ten days later, Republican challengers in the North Carolina case filed a cert petition; that petition was up for consideration at the justices’ conference this week. Now, a former Republican congressional representative for Pennsylvania has filed a cert petition in his state’s case, urging the justices to grant the two petitions together for full merits review next term.
In Costello v. Carter, former Rep. Ryan Costello asks the court to answer two questions related to the drawing of states’ maps for congressional elections. The first question, also presented in the North Carolina case, regards the independent-state-legislature theory: whether the Constitution’s vesting of state legislatures with the authority to set the “Times, Places, and Manner” of elections in Article I, Section 4 precludes state courts from interfering with the maps or other rules those legislatures set for elections. Four justices (the number it takes to grant a cert petition) indicated that this question deserves the court’s full attention when the court declined to intervene in the North Carolina lawsuit.
Costello also asks the justices to consider whether a separate provision of federal elections law invalidates the Pennsylvania Supreme Court’s choosing of a new map in defiance of the legislature. In 2 U.S.C. § 2a(c), Congress laid out the procedures that govern a state’s elections after a census count and before formal redistricting takes place. The statute says that “if there is a decrease in the number of Representatives and the number of districts in such State exceeds such decreased number of Representatives, they shall be elected from the State at large.” Costello argues that, because Pennsylvania’s 18 districts “exceed[ed]” the state’s 17 House seats remaining after the 2020 census, the state court’s map violated the instruction from Congress that the state’s next congressional election be at-large until it “is redistricted in the manner provided by the law thereof after any apportionment.”
With Florida’s Maps in Place, 2022 Redistricting Cycle Basically Done
N.Y. Times offers this summary of the 2022 redistricting cycle. Key points:
- Litigation over congressional maps continues, but it is unlikely to change the maps before November.
- This redistricting cycle “has created a much less competitive House map than before.”
- The Democrats may “have come out of the map-drawing battles in slightly better shape than before they began,” but it is debatable and the political winds do not favor their capturing that advantage.
- Florida’s new map “dismantles a congressional district held by Representative Al Lawson, a Black Democrat, and strongly boosts Republican odds of capturing other competitive House seats,” and may or may not violate the State’s constitution. A lower court held it did.
Breaking–Florida Supreme Court won’t block DeSantis redistricting map
The Florida Supreme Court has declined to block the state’s new congressional map on the ground that it lacks jurisdiction. The congressional map that will go into effect is the one backed by Republican Gov. Ron DeSantis and previously struck down, in part, on the ground that it diminished the voting rights of African Americans. One Justice (LaBarga) wrote a dissent. Axios summarizes the litigation.
“Supreme Court Spurns Texas GOP Lawmakers on Voting-Map Testimony”
Bloomberg Law–The U.S. Supreme Court has rebuffed a request to protect “three Republican lawmakers from being questioned under oath in lawsuits by the Biden administration and civil rights groups that claim new voting maps in Texas are racially discriminatory.” The legislators asked the Court to rule they were protected by legislative privilege from being deposed. Lower courts had rejected those assertions as premature and the Supreme Court left those decisions in place. The Court is scheduled to decide Merrill v. Milligan next term, a case expected to result in a further narrowing of the scope of the Voting Rights Act by the conservative Court.
NY Times Profiles Jonathan Cervas, the Special Master Who Drew New York’s Congressional Districts
Great profile of Jonathan, who was an excellent student of mine at UCI in my election law course.
“Florida redistricting lawsuit: Appeals court rejects court-ordered maps”
Andrew Pantazi:
A Florida appeals court ruled against an attempt to use new court-ordered congressional maps in the state’s 2022 elections.
The 1st District Court of Appeal found that a lower court’s injunction was “unlawful on its face” because it not only struck down Florida’s redistricting maps, but it ordered the state to use new ones.
Injunctions, the appellate court ruled, should preserve the status quo, which in this case would’ve meant only striking down the new maps signed by Gov. Ron DeSantis. The Legislature then would’ve had the onus to attempt to try again at redistricting, or under federal law, the state might have tried to have all 28 districts elected on an at-large statewide basis.
The opinion does not address whether DeSantis’ redistricting maps are constitutional or not, and it doesn’t address whether the state is required to maintain a Black ability-to-elect district in Jacksonville.
The unanimous opinion was written by Judge A.S. Tanenbaum, a DeSantis appointee who previously represented the Florida House and the Department of State, both of which were sued in the case. The opinion focused narrowly on whether the court used an appropriate injunction when it ordered new maps.
The voting-rights groups who brought the original lawsuit, including Black Voters Matter, have also asked the Florida Supreme Court to lift the stay and urge elections officials to continue down the path of preparing for either version of a congressional map while the high court decides on a full appeal.
The Supreme Court, however, has not yet agreed whether it will hear that appeal, and the plaintiffs’ experts previously said today was the deadline to implement a new map.
Special Master Persily’s Proposed NH Congressional Redistricting Plan Posted
You can find it here.
Ohio Supreme Court Rejects Legislative Maps Again; Chief Justice O’Connor, a Retiring Republican, Calls Out Redistricting Commission Members and Republican Judges on 6th Circuit Panel
The commission’s refusal—on four occasions—to abide by this court’s rulings has created a crisis that it has the ability to resolve. Yet, despite the federal court majority’s feigned interest in “buy[ing] Ohio more time to both make a new map and find ways to shorten the implementation of that map,” id. at *25, it effectively instructed the Republican members of the commission that all they had to do to get their way was to wait out the clock until May 28—despite the valid order of this court ordering the commission to adopt an entirely new General
Assembly–district plan that complies with the Ohio Constitution by May 6, League of Women Voters of Ohio v. Ohio Redistricting Comm., _ Ohio St.3d , 2022- Ohio-1235, N.E.3d _, ¶ 78-79 (“League IV”).
In light of this court’s limited role in the redistricting process, setting aside differences and working together is the responsibility of the commission members in upholding their oaths of office as elected officials—oaths that are taken not to ensure that one political party has a supermajority but to obey Ohio’s Constitution.
Setting aside differences and working together is surely also what Ohio’s voters envisioned that the commission members would do in exercising their responsibilities as part of the commission….The latest actions by the commission make clear that without the federal court’s April 20 opinion, there might have been a chance at getting Ohioans a fair map. The federal-court majority brushed off Chief Judge Marbley’s supposition that the Republican members of the commission would “wait out the clock rather than work with the legislature and the Ohio Supreme Court to figure out a new map and, if necessary, a revised election timeline.” Gonidakis, 2022 WL 1175617, at *25, fn. 19. But as Chief Judge Marbley predicted, they did just that….
The Ohio Supreme Court and the Ohio Constitution should not be held hostage by a redistricting commission acting according to partisan directives and a legislature that has created a crisis due to its own inaction. Any threat to Ohioans’ right to vote in this scenario stems entirely from the commission’s repeated failures to comply with this court’s rulings and the General Assembly’s refusal to set a workable primary date. The remedy, then, should not be the approval of an unconstitutional map that rewards those who created the crisis to begin with. The remedy, instead, must be to craft a resolution of the manufactured crisis by those with the authority to do so—the commission and the legislature.
Supreme Court Poised to Decide within Weeks Whether to Take Up Case Raising “Independent State Legislature” Theory–with Potential Big Implications for 2024 Elections
The Supreme Court is poised to decide before it breaks for the summer whether to hear Moore v. Harper, a case raising the question whether the North Carolina Supreme Court had the power to rein in the North Carolina General Assembly’s partisan gerrymander of the state’s congressional districts. Opponents of the lawsuit asked to delay filing their opposition until June 20, but the Supreme Court required that briefs be filed by May 20, and they have been. That gives enough time for the Court to decide before the expected end of the term in June or early July whether to hear the case next term. It’s a case with potentially enormous implications for the 2024 elections and beyond.
As issue is the viability of the “independent state legislature theory.” As I explained in this Slate piece, when North Carolina Republicans sought emergency relief in the Supreme Court in this case, this suit “if successful would not only restore the state legislature’s ability to engage in partisan gerrymandering and perhaps tip control of Congress, but would radically alter the power of state courts to rein in state legislatures that violate voting rights in federal elections.” Further:
The Supreme Court accepting North Carolina’s argument would lead to some horrible consequences. First, it would neuter state courts’ abilities to rein in partisan gerrymandering, further undermining democratic representation. Second, the Supreme Court would be acting in a way that could tip control of Congress to Republicans.
But most importantly, siding with North Carolina could profoundly alter the balance of power between state courts and state legislatures. It could essentially neuter the ability of state courts to protect voters under provisions of state constitutions against infringement of their rights. This would apply not only to redistricting but to laws restricting registration and voting practices. It would allow hostile legislature to run roughshod over legislative rights. It could lead to major voter suppression policed by neither state courts nor federal courts, given the Supreme Court’s shrinking of the federal Voting Rights Act’s protections.
There are some good reasons for the Supreme Court not to take this case, not the least of which is that the state legislature seems to have empowered the state courts to review redistricting decisions, meaning there would be no violation of the legislature’s “power” even if such power exists.
But four Justices expressed interest in this theory when the Court denied a stay in this case, and former Judge Luttig believes the Court is going to have to resolve this issue sooner rather than later:
Only last month, in a case from North Carolina the Court declined to hear, Moore v. Harper, four Justices (Alito, Thomas, Gorsuch and Kavanaugh) said that the independent state legislature question is of exceptional importance to our national elections, the issue will continue to recur and the Court should decide the issue sooner rather than later before the next presidential election. This case involved congressional redistricting, but the independent state legislature doctrine is as applicable to redistricting as it is to presidential elections.
But there are dangers on the horizon in this case or another one. As I’ve written about Justice Alito’s dissent from a stay in this case:
If J. Kavanaugh ultimately goes along with the Alito reasoning, it will take only one more Justice to agree in order to overturn over two centuries of practice involving interpretation of state election law by state courts. Chief Justice Roberts’ dissent in the Arizona redistricting case from 2015 put him very much in sympathy with Alito’s position on the merits; he might demur for prudential reasons, but who knows? And Justice Amy Coney Barrett is a complete mystery, as she has not weighed in on this. I expect the major action is going to be building a strong record, based upon originalist style scholarship, that the independent state legislature theory, as currently understood, is contrary to the original understanding of the Constitution. There’s a strong case to be made, and it will be one of the first tests to see how serious Justice Barrett takes such historical arguments.
Further, as I wrote in the Harvard Law Review Forum, some of the more extreme forms of the doctrine could facilitate election subversion in 2024 with state legislatures appointing slates of electors that would negate the choices of voters for President. Keep your eye on this.
“A GOP power grab shatters 30 years of political progress for Black voters in Galveston County “
Texas Tribune reports that “Republicans dismantled the only Galveston County commissioners precinct in which voters of color held political clout.”
“Carver Park in Texas City, created during segregation, is considered the first African American county park in the state. It sits on land donated by descendants of freedmen who survived slavery and pioneered one of Texas’ oldest Black settlements, the footprint of which sits just a few blocks away.
Until last year, the park sat at the heart of Galveston County’s Precinct 3 — the most diverse of the four precincts that choose the commissioners court, which governs the county along with the county judge. Precinct 3 was the lone seat in which Black and Hispanic voters, who make up about 38% of the county’s population, made up the majority of the electorate.
. . . .
But the white Republican majority on the Galveston County’s commissioners court decided last November to dismantle Precinct 3. Capitalizing on its first opportunity to redraw commissioner precincts without federal oversight, the court splintered Black and Hispanic communities into majority-white districts.
Under the final map, which will be used for this year’s election and possibly for a decade, white voters make up at least 62% of the electorate in each precinct, though the county’s total population is only about 55% white. Because white voters in Galveston — like Texas generally — tend to support different candidates than Black and Hispanic voters, the map will effectively quash the electoral power of voters of color.”
“House Democrats scramble after redistricting lessens competitive edge”
Court rulings in Florida and New York have Democrats working harder to keep their seats. The article offers a round up of the likely political effect of the new maps. Two tidbits stand out:
First, “Redistricting . . . has eliminated 18 competitive seats according to a Washington Post analysis, making it less likely that either party can have more of an edge in future races.”
Second, Jonathan Cervas, the special master who drew New York’s maps, seems to have de-prioritized incumbency protection. Recognizing there are arguments on both sides, I do want to say that may make life worse for the party, but it could be good for the public’s faith in democracy.