The U.S. Supreme Court won’t review a congressional redistricting law enacted by the Republican-controlled Kansas Legislature that some voters and Democrats saw as political gerrymandering.
The nation’s highest court said Monday without explaination that it won’t hear an appeal of a Kansas Supreme Court ruling from May 2022 that partisan gerrymandering does not violate the state constitution. Eleven voters had challenged the redistricting law.
Category Archives: redistricting
“North Carolina’s high court seems inclined to toss past redistricting rulings”
Republican justices look ready to use their new majority on the North Carolina’s state Supreme Court to tear up the state’s congressional maps, and the new ones would likely favor the GOP up and down the ballot.
The Tar Heel state’s highest court heard arguments Tuesday about a case surrounding the power to set the state’s internal political boundaries. A previous iteration of the state Supreme Court ruled that the congressional lines drawn by GOP lawmakers were an illegal partisan gerrymander, and during the 2022 midterms a court-ordered congressional map that resulted in an even split in the state’s congressional delegation ended up being used….
Three key North Carolina justices signaled a degree of hostility to the arguments brought by attorneys representing the groups that defended the current congressional maps in the state.
The court is taking up the question of fairness of the state’s maps after the makeup of the court changed last November — now-Justices Richard Dietz and Trey Allen won a pair of state Supreme Court seats that flipped the balance of the court from a 4-3 liberal one to a 5-2 conservative one.
Dietz, Allen and Chief Justice Paul Newby — who was in the minority in last year’s 4-3 ruling — were the only three conservative justices to speak during Tuesday’s hour-long arguments in Raleigh.
Newby suggested in his questioning that there was no way for the courts to properly adjudicate what actually would constitute a “fair” map in the state — and suggested the question might be better left to lawmakers. He pressed Lali Madduri, an attorney who argued on behalf of the plaintiffs, on how lawmakers and judges should interpret metrics used to measure partisan fairness, and if advisers to the court who either make those measurements or draw the lines should be subject to an ethics code.
“How does the General Assembly determine that ‘all voters have equal voting power?’” he asked, implying it wasn’t feasible.
Allen, at one point, seemed to say arguments against gerrymandering could spin out of control. He picked up on a line of questioning from Newby, wondering if the court should apply those principles of fair elections to county and municipal elections — or even school boards or other local offices.
The two Democratic judges left on the North Carolina high bench sought to defend their past majority opinion. Justice Anita Earls pushed Phillip Strach, who represented Republican lawmakers, on his arguments that the court did not have jurisdiction to determine the fairness of the maps and that it was a political question left to lawmakers.
“How the next House majority could be decided in the courts in 2023”
Zach Montellaro for Politico:
Republicans are readying to plow ahead with ambitious gerrymandering despite previous reprimands from state courts — now that they’ve elected judges who are less likely to thwart their plans.
The first test of this strategy comes Tuesday when North Carolina’s GOP-dominated state Supreme Court will hear arguments on whether its previous Democratic majority erred in tossing out the initial map Republican legislators drew just two years ago. The move has drawn loud complaints from Democrats that the court only granted a redo now that the partisan balance has changed.
Between that and a similar remap looming in Ohio — where the state Supreme Court has also taken a lurch to the right since throwing out multiple GOP maps before the last election — Republicans could more than double their five-seat House majority through redistricting alone. That would give Speaker Kevin McCarthy a much-needed cushion in 2024.
“No Rest Between Censuses for Congressional Mapmakers; What used to be a once-a-decade redistricting fight between political parties is now in perpetual motion, and up to 29 seats in 14 states are already at risk of being redrawn.”
For just about all of the nation’s history, politicians would fight over redistricting for a short period after each once-a-decade census, then forget about congressional maps until the next reapportionment.
Now, a string of lawsuits and in-the-works state referendums are poised to redefine the battles over state legislative and congressional lines and leave the country in a state of perpetual redistricting.
The dynamic is an escalation of the scattered redistricting battles over the last decade. Not since 2012 and 2014 have all 50 states’ congressional lines remained constant for consecutive elections, a streak unlikely to be broken next year. The National Democratic Redistricting Committee estimates that up to 29 seats in 14 states could be redrawn based on lawsuits that have already been filed. Scores more seats could change if the Supreme Court rules later this year that state legislators have ultimate authority to draw the lines….
he next movement on redistricting is likely to come in Ohio and North Carolina, where Republicans who control the state governments are poised to redraw congressional maps to give their party an added advantage. Texas lawmakers are also redrawing their maps.
Democrats have challenged maps in four states — Alabama, Louisiana, Georgia and Texas — for violating Section 2 of the Voting Rights Act that prohibits racial discrimination. Democrats have also filed a lawsuit in state courts in their effort to undo congressional maps in Florida and Utah.
In New Mexico, Republicans are suing to overturn congressional district maps.
And the outcome of the Wisconsin Supreme Court election in April will determine whether a Republican-drawn gerrymander of state legislative lines survives. Four other states — Michigan, North Carolina, Ohio and Pennsylvania — have state Supreme Court elections in the next five years that could shift the balance of power and change how district lines are drawn.
“Republicans and the Purple Crayon: How to Fix Partisan Gerrymandering in Wisconsin and Elsewhere”
Tom Zoellner in the LA Review of Books.
Why Haven’t the Parties in Moore v. Harper (At Least Publicly) Alerted the Supreme Court That The Case May Be Mooted by the North Carolina Supreme Court?
With news today that the Supreme Court cancelled oral argument in the Title 42 case on immigration after the Biden DOJ informed the Court that the Title 42 policy will end in a few months with the end of the declared covid emergency, I checked again over at the Supreme Court docket in Moore v. Harper, the so-called “independent state legislature” case with potentially profound implications for election law.
The last entry on the public docket is a Dec. 21 letter from the parties letting the Court know that the North Carolina Supreme Court had issued an order an opinion on the partisan gerrymandering remedy in the same case, which the parties now refer to as Harper II. That was one of the last opinions issued by North Carolina’s Supreme Court before it went from Democratic majority to Republican majority.
I wrote at Slate back on February 6 about how the North Carolina Supreme Court took the highly unusual step of granting rehearing in Harper II, and the petition for rehearing asks that court to reconsider the underlying ruling in Harper I (the very same case now up before the U.S. Supreme Court) holding that partisan gerrymandering violates the state constitution. If the North Carolina court agrees that partisan gerrymandering is just fine under the state constitution, that almost certainly moots the case before the U.S. Supreme Court.
That rehearing grant, as well as a quick oral argument schedule that will have the case heard next month, would seem to be worth bringing to the Supreme Court’s attention. Perhaps there have been conversations with the clerk’s office that are not reflected on the public docket. Otherwise, this is very curious.
North Carolina Supreme Court Schedules March 14 Oral Argument in Rehearing in Harper, the Partisan Gerrymandering Case that Could Moot Moore v. Harper (the Independent State Legislature Case) at SCOTUS
Here is the order. That gives plenty of time for the North Carolina Supreme Court to do what I expect, which is to reverse the earlier holding that partisan gerrymandering violates the North Carolina constitution, before the Supreme Court would rule in the related case, Moore v. Harper.
A ruling eliminating partisan gerrymandering under the North Carolina constitution would almost certainly moot the pending Moore v. Harper case at the Supreme Court, raising the question of the so-called “independent state legislature theory.” I explained why in this Slate piece and in this Bloomberg Law podcast.
Meanwhile, no party at the Supreme Court has yet notified the Court about the rehearing grant, at least not according to what is reflected in the public docket.
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.
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.
“Statewide Investigation of California’s 2020 Local Redistricting Cycle Finds Widespread Gerrymandering to Protect Incumbents, Underscores Benefits of Independent Commissions”
New Common Cause report.
“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.”
“Federal judges strike down SC’s 1st Congressional District as racial gerrymandering” (With Link to 33-page unanimous ruling)
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.
“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.
“Chief justice in Ohio map flap: Court attacks harm democracy”
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.”
“Civil Rights Advocates File Federal Lawsuit Over Mississippi’s Racially Gerrymandered Maps”
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.