Category Archives: redistricting

Breaking: North Carolina Supreme Court Grants Rehearing in Case Striking Down Congressional Districts as a Partisan Gerrymander, Potentially Mooting U.S. Supreme Court’s Independent State Legislature Case, Moore v. Harper

On a 5-2 vote along party lines, the North Carolina Supreme Court has granted rehearing to reconsider its decision striking the state’s congressional districts as unconstitutional partisan gerrymanders under the state constitution. It is also considering the state districts as well as a separate voter id case; these were each decided just before the partisan majority on the Supreme Court changed. Justice Earl in her dissents calls out the court for granting the unusual rehearing and rejecting Common Cause’s motion to dismiss; the says that this is going to further politicize the judiciary and undermine the legitimacy of the courts.

The court put the congressional districting briefing on a very quick time frame, and it raises the question whether the U.S. Supreme Court’s decision in Moore v. Harper could become moot, after a lot of briefing and argument has already been considered by the Supreme Court on the independent state legislature theory.

As I recently wrote,

Back on November 9, I wrote:

Could the Flipping of the North Carolina Supreme Court to Republican Control Moot the Moore v. Harper Case about the Independent State Legislature Doctrine?

With news that the North Carolina Supreme Court has flipped to Republican control, there is a good chance that the this court’s holding that partisan gerrymandering violates the state constitution will be overturned. That ruling will allow Republicans to draw a partisan gerrymander of North Carolina’s congressional districts in time for the 2024 elections.

But it also may moot Moore v. Harper, the big “independent state legislature”/Elections Clause case. That case argues that the North Carolina’s ruling violated the power of the state’s general assembly to decide on the shape of congressional districts.

There have been a ton of amicus briefs filed (including my own) and oral arguments are set for December 7. Not clear to me how quickly a case could make it to the state Supreme Court to cause it to reconsider its partisan gerrymandering ruling, and if there might be an incentive to hold those suits to get a ruling from the U.S. Supreme Court on this issue.

Now, via Democracy Docket, comes this this petition for rehearing in the North Carolina Supreme Court in the remedial phase of the Harper case involving the maps. The case specifically asks for the original holding—-that the North Carolina congressional districts are an unconstitutional partisan gerrymander under the state constitution—be overturned.

If that case is overturned before the Supreme Court decides Moore, it seems to me that it likely moots the case.

Indeed, I wonder if SCOTUS will delay deciding this case if the NC Supreme Court grants rehearing.

I don’t know that the NC court would do so. As Marc Elias argues, doing so would be a radical act. But it could happen and then call into question whether we will find out the vitality of the independent state legislature theory or not in Moore.

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“In Ohio’s Redistricting Redo, a New Justice and a New Speaker Will Steer the Ship”

New at Bolts Mag:

It’s Groundhog Day in Columbus. After a protracted redistricting battle last year that saw Republicans adopt a relentless barrage of gerrymanders, only to have them repeatedly struck down by the state supreme court, Ohio must again draw new maps in advance of the 2024 elections.

But the cast of characters who will steer the process got reshuffled last week, with two newcomers set to play influential roles. 

Meanwhile, the Republican chief justice who had sided with Democrats in last year’s gerrymandering cases exited the stage on Dec. 31. 

Some Democrats hope that they secured a new Republican ally—this time in the legislature, where Jason Stephens was unexpectedly elected Speaker thanks to a bipartisan coalition that included all House Democrats—and that this may mitigate the maps’ partisan bias upfront, before they reach judicial review. But once they do, the GOP’s odds of securing favorable rulings for its gerrymanders has shot up dramatically due to a new conservative justice. 

“I suspect the political tricks to undermine democracy will go the distance,” said Desiree Tims, the head of Innovation Ohio, a progressive organization that lobbies for fair maps and is part of Ohio’s Equal Districts coalition. “The redistricting process should unfold in a democratic way, which has not been our experience in Ohio.” 

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“Federal judges strike down SC’s 1st Congressional District as racial gerrymandering” (With Link to 33-page unanimous ruling)

Post & Courier:

A panel of federal judges in South Carolina has concluded that the state’s coastal 1st Congressional District was drawn in such a way that it discriminates against Black voters and must be redesigned before the end of March.

The ruling was issued Jan. 6 by three federal judges: Richard Gergel, Mary Geiger Lewis and Toby Heytens. Their decision came less than two months after the federal trial ended in a downtown Charleston courtroom.

“The Court finds that race was the predominant factor motivating the General Assembly’s adoption of Congressional District No. 1,” the judges wrote. “With the movement of over 30,000 African American residents of Charleston County out of Congressional District No. 1 to meet the African American population target of 17%, Plaintiffs’ right to be free from an unlawful racial gerrymander under the Equal Protection Clause of the Fourteenth Amendment has been violated.”

The redistricting case stemmed from an amended complaint filed earlier this year by the South Carolina chapter of the NAACP.

The suit accused state Republican lawmakers of unconstitutionally redrawing lines in the state’s 1st, 2nd and 5th Congressional Districts to disadvantage Black voters — a violation of the 14th and 15th Amendments.

In their opening statements, the lead attorney for the state chapter of the NAACP argued that the congressional lines drawn by the General Assembly were drawn for political gain and not on the basis of race.

“Partisanship,” said Leah Aden, deputy director of litigation at the NAACP Legal Defense and Educational Fund. “That cannot be the goal if the rights of minority voters are trampled on to achieve that advantage.”

You can find the ruling at this link.

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“In the End, Redistricting Didn’t Hurt (And May Have Even Helped) House Democrats”

Dave Wasserman for Cook Political Report:

Amid this week’s chaos, an occasional TV sound byte has been that House Republicans might not even have won their razor-thin majority without a boost from redistricting. After all, our pre-election estimate was a GOP gain of up to three seats from new maps alone. Instead, 2022’s results show it didn’t hurt — and even may have even helped — Democrats, another reason Kevin McCarthy has had such difficulty reaching 218 votes.

In December, FiveThirtyEight’s Nathaniel Rakich and Elena Mejia wrote an excellent piece hypothesizing how the House outcome might have been different had redistricting not occurred, concluding that the decennial process likely didn’t cost Democrats the House.

Our analysis, using an approach similar to the Cook PVI, arrives at a similar conclusion: Republicans wouldn’t have won the House without gerrymanders in Florida, Georgia, Tennessee and Texas. But overall, Democrats fared slightly better than they would have under old maps thanks to their own gerrymanders in Illinois, Nevada, New Mexico and Oregon and a temporary court-drawn map in North Carolina.

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“Chief justice in Ohio map flap: Court attacks harm democracy”

AP:

 Ohio Chief Justice Maureen O’Connor isn’t rattled on a personal level by the political attacks she endured from fellow Republicans during Ohio’s protracted redistricting fight. She’s confident she “did the right thing” in ruling their proposed political maps unconstitutional.

What does concern the retiring jurist is the ignorance and lack of respect for foundational government principles that she believes their actions demonstrated.

O’Connor drew GOP wrath for joining three Democrats on the seven-member Ohio Supreme Court to repeatedly invalidate the state’s new, Republican-drawn legislative and congressional maps. The maps remain in limbo as O’Connor exits the court Dec. 31 because of age limits.

“The people that voiced a need to remove me from office through impeachment really don’t have a grasp on our Constitution, or democracy, or checks and balances,” O’Connor, 71, told The Associated Press in a year-end interview last week. “And, unfortunately, they are in the Legislature.”

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“Civil Rights Advocates File Federal Lawsuit Over Mississippi’s Racially Gerrymandered Maps”

Release:

Civil rights advocates today challenged Mississippi’s 2022 state legislative district maps for unlawfully diluting the voting strength of Black Mississippians.

The American Civil Liberties Union, ACLU of Mississippi, Lawyers’ Committee for Civil Rights Under Law; Morgan, Lewis & Bockius LLP, Mississippi Center for Justice, and civil rights attorney Carroll Rhodes are representing the Mississippi State Conference of the NAACP and voters from across the state in the federal lawsuit.

The lawsuit charges that the 2022 maps deny Black residents in areas throughout Mississippi an equal opportunity to participate in the political process and elect candidates of their choice, in violation of Section 2 of the Voting Rights Act of 1965. It also charges that the state gerrymandered certain district lines by improperly using voters’ race, in violation of the U.S. Constitution.

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The Profound Ahistoricism of Moore v. Harper

The Supreme Court will hear arguments tomorrow about the scope of state legislative authority to determine “the time, place, and manner” of federal elections. Petitioners’ position is that state legislatures are freed from state constitutional constraints when they make decisions about where polling places are located, how many hours polls have to be open, the terms on which early or absentee voting is available, and—most importantly—how congressional districts are drawn. In making these choices, state legislatures, they argue, do not need to abide by state supreme court decisions interpreting their state constitutions.

Election lawyers, constitutional scholars, and interest groups from across the political spectrum have raised significant questions about this interpretation of the Elections Clause. They have questioned the practicality of this so-called Independent State Legislature Theory, and they have raised doubts about the evidence supporting Petitioners’ textualist and originalist claims. Petitioners have been chastised for relying on fake historical documents and for cherry picking quotes from famous nineteenth-century legal commentators.

Few, however, have highlighted the more profound ahistoricism of Petitioners’ position. Petitioners make much of the dearth of evidence of state court decisions striking down state legislation regulating federal elections. But they present no information about how elections were administered for much of the nineteenth century.

Indeed, a reader of the briefs—an earnest law clerk, for example—could easily be left with the impression that elections in the early nineteenth century worked essentially like they do today. Nothing could be farther from the truth. The kind of time, place, and manner regulation at the heart of Moore v. Harper largely did not exist until the late nineteenth century.

Elections through the late nineteenth century were shockingly informal by modern standards. While state constitutions set voter qualifications and residency requirements, there was very little by way of what we would call time, place, and manner regulations. Early elections were festive occasions in which voting took places over the course of several day, often with free drinks. In the early 1800s, states did intervene to replace viva voce voting with written ballots, and by 1868, American Legal Treatise writer, Thomas M. Cooley would assert that “[t]he mode of voting in this country, at all general elections, is almost universally by ballot.” Still, the process of voting was extremely rudimentary.

The first written ballots were simply pieces of paper upon which one recorded a vote. More importantly, even when handwritten written ballots were replaced with printed ballots, it was the political parties who handed them out to voters. Factions of the same party would provide different slates of candidates to voters on their competing paper ballots, and the state played no role in monitoring the process. A few cities eventually required parties to use a single-color paper when distributing ballots. Before 1870, even voter registration requirements were exceedingly rare. Where they existed, they simply required local officials to keep a list of eligible voters.

It was only in the late nineteenth century that state legislatures began in earnest to pass time, place, and manner regulations as we know them. State courts were quickly asked to review the constitutionality of the new laws by partisans. When they did, state courts applied the provisions of their state constitutions–and they did so without distinguishing between the applicability of their rulings to state as compared to federal elections.

An earnest reader of the briefs could just as easily come away with the impression that, like today, Congress was divided into single-member districts in the early nineteenth century and that states diligently redistricted each decade, as required by the Constitution. But it was not until the Apportionment Act of 1842 (yes 1842!) that single-member congressional districts were mandated. At the time of its enactment, there were twenty-six states in the Union. 10 states used at large voting for House elections. Petitioners offer no information about how often states actually redistricted before 1842 (or after). This silence is particularly glaring given that in the period prior to Baker v. Carr, despite the constitutional requirement, states frequently did not redraw their state or congressional maps. In the absence of such information, what exactly can be made of the fact that no state court appears to have invalidated a state legislature’s congressional map on substantive state-constitutional grounds?

Finally, this same earnest reader—this law clerk without a lot of historical background—could easily miss a very basic historical fact: Federal courts did not exercise general federal question jurisdiction, as we know it, until 1875—the end of Reconstruction. This is why state courts were the primary forum for resolving disputes in the nineteenth century.

Petitioners may have answers to the implications of these many historical differences. No doubt their fallback position to the last is that the critical issue is not which court exercised jurisdiction but what constitutional law they apply. But the fact that they have felt free to submit tens of pages of briefing with no mention of the profound institutional changes to the practicalities of our electoral and judicial systems since 1789 is telling about the fundamental flaws of the law office history that drives originalism today.

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“Republicans’ Supreme Court argument on redistricting could backfire”

Sam Wang oped for WaPo:

But if the Republicans win in the U.S. Supreme Court, the result on a national scale would almost certainly benefit Democrats. Why? Because outside North Carolina, only swing states and blue states have curbed partisan gerrymandering. In Pennsylvania, New York, Connecticut, Minnesota, New Hampshire, Wisconsin and Virginia, this was done through the intervention of governors or voting-rights-minded state courts; in Arizona, California, Michigan and Colorado, citizen initiatives gave redistricting authority to independent commissions.

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“How redistricting shaped the midterms”

Politico:

Both parties entered the latest redistricting cycle seeking to press their advantages where they could.

The first election held under the new lines showed both succeeded — though Democrats had their most ruthless gerrymanders thrown out in the courts and the GOP did not, giving Republicans an edge that just might have carried them to a narrow House majority.

“The Democrats’ redistricting strategy was right. I think it worked,” said Kelly Ward Burton, the president of the National Democratic Redistricting Committee, which oversaw the party’s 2022 mapmaking.

Democrats’ excesses in New York and Maryland — where they drew maps to excise the few Republican seats remaining — were checked by the courts, even though similarly gerrymandered GOP maps were allowed to stand by conservative jurists. But independent commissions and strategic Democratic maneuvering did help blunt larger Republican gains.

“If they would have been able to do everywhere what they did in Florida,” Ward Burton said of Republicans, who netted four districts in the state, “we would be having a totally different conversation about the House right now.”

Now that the 2022 midterms are in the books, here are five takeaways about how the map lines drove the results — and what comes next.

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“Flip of Michigan Legislature highlights role of fair maps”

AP:

Democratic candidates for the Michigan House and Senate won a majority of votes this year, translating into their party winning control of both legislative chambers. That may seem like a natural result, but it hasn’t been in previous elections.

While Democrats also won a majority of votes in 2018 and 2020, Republicans won majorities in the Legislature. The difference this time: Candidates ran in new districts drawn by a citizens commission instead of ones crafted by Republican lawmakers that were designed to help keep their party in power.

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“Did Republicans Gerrymander Their Way to Victory?”

Sam Wang for The Atlantic:

Republicans have gained control of the House of Representatives, but their majority will be tiny. Such close division has triggered many what-if discussions. Some have focused on New York, where Democrats performed poorly. The Democratic legislature had drawn a map in early 2022 that was designed to give the dominant party its best possible performance, even in a bad year. However, a court-ordered replacement map undid this gerrymander, shifting the outcome in multiple seats.

Did this single action cost Democrats control of the House of Representatives? Some political operatives and journalists in New York think the answer is yes. But that’s not the most important question. Better to focus on whether the New York map is fair—and, in the larger view, to ask whether maps nationwide yielded a representative result overall.

More from Sam here.

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