David Toscano: “State Supreme Courts Open New Front in the War on Hyperpartisan Redistricting”

The following is a guest post from David Toscano:

Ohio, Pennsylvania, and North Carolina have been on the frontlines of partisan division for over a decade, often being viewed as swing states in national electoral contests.  Now, each state’s Supreme Court occupies a similar position—making waves by using their state constitutions to overturn partisan redistricting maps and leveling the playing field for the parties in the upcoming midterm elections.

As the former minority leader in the Virginia House of Delegates, I felt the impact of hyper partisan redistricting up-close and personal. Despite Virginia Democrats winning four of five gubernatorial races between 2005 and 2017 and electing two US senators during this period, Republicans held a 7-4 majority in the state’s congressional delegation for much of the period. As recently as 2016, Republicans outnumbered Democrats in the House of Delegates 66 to 34.  Why? Because state Republicans controlled the 2011 redistricting process and passed maps that enabled them to retain control of Virginia’s congressional delegation and generate massive majorities in the House of Delegates.  After many years,  the federal courts struck down both the congressional and state House maps, and forced fairer districts to be created. Virginia Democrats then flipped the congressional composition in their favor, 7-4. And in 2019, Democrats won control of the Virginia House.

Entering the decennial redistricting process last year, Republicans held power in many more states than Democrats.  In 23, they had a “trifecta”, a situation where one political party controls both legislative bodies and the governorship in a state. By contrast, Democrats only had 15, meaning that the GOP could dictate maps in many more places. Many political pundits predicted that Republican control over redistricting would inevitably create more GOP victories in the midterms and almost certainly lead to a changeover in power in the US House of Representatives. Dave Wasserman at the Cook Report opined in early 2021 that “Republicans might reasonably expect to net between zero to ten seats …. from reapportionment and redistricting alone,” thereby gaining the six they need for control.

It also appeared unlikely that federal courts would provide any relief.  The U.S. Supreme Court is markedly more conservative and recently held, in Rucho v. Common Cause, that federal courts cannot hear lawsuits challenging partisan gerrymanders.  Democrats continued efforts to use their control of states like Illinois and New York to create new blue congressional seats where they could, but otherwise appeared to be out of weapons to combat the GOPs use of traditional partisan gerrymandering–until reformers began fighting in state courts, and using provisions in state constitutions not explicitly found in our federal charter to upend Republican plans to lock-in red majorities.  

In Ohio, Pennsylvania, and North Carolina, advocates are using language from state constitutions that is not typically found in the U.S. charter to successfully win fairer maps.  

Pennsylvania has perhaps the strongest language of the three: “Elections shall be free and equal; and no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage.” That language did not prevent the GOP-controlled legislature from passing a voting map in the last redistricting that gave Republicans a decided advantage, but opponents used before the state supreme court, that, in 2018, found the plan unconstitutional. In this redistricting round, no map was passed, as the Republican Assembly deadlocked with the Democratic Governor.  The state Supreme Court, a body where elected Democrats hold a 5-2 majority, were asked to intervene because of the impasse. They issued a map that, according to the nonpartisan  Campaign Legal Center, does not appear to favor one party over the other.  

In North Carolina, arguments against the hyper partisan plan adopted by the legislature last year also focused on free elections.  In the Tar Heel state, where Democratic Governor Roy Cooper is constitutionally precluded from vetoing a redistricting plan, the GOP assembly drew districts to create a 11-3 Republican advantage in Congress.  The state Supreme Court, however, said no, holding that the plan violated the state constitution’s free elections clause and the equal protection clause by denying voters “substantially equal voting power on the basis of partisan affiliation.” Two weeks later, the court issued its own map with districts divided roughly equally between parties.

These decisions would typically resolve the issue.  But Republicans in both states appealed to the U.S. Supreme Court.  Ultimately, SCOTUS declined to hear the cases, leaving maps in the two states in place for this fall.  In the process, however, the justices left the door open to review future state court decisions in this arena under the independent state legislature doctrine, a controversial theory that, if adopted, could decimate the ability of state courts to short-circuit unconstitutional actions of legislatures.

The Ohio story is not yet complete. The state is unique among the three, if only because it has a redistricting commission.  But far from being nonpartisan, the group is stacked with Republicans, with the result their maps would likely produce massive GOP majorities in the Assembly and the congressional delegation. The ACLU and League of Women voters sued, and the Ohio Supreme Court twice rejected the plan, holding that it violated the language of the state constitution that “No general assembly district plan shall be drawn primarily to favor or disfavor a political party.”  Whether the legislature’s apparent inability to produce a constitutional plan will compel the court to issue its own is not clear.  Given the Supreme Court’s recent reaction to the Pennsylvania and North Carolina plans, any map drawn by the state judge’s will probably be the one utilized this November.

Will these actions by these states make a difference in who is elected this fall? Undoubtedly so.

Will they allow Democrats to retain control of the House of Representatives? No one knows. But one thing is clear: a new dynamic is in place, one that places states even more at the center of who will control the country and guide policy in the years ahead.

David J. Toscano is an attorney and the former minority leader in the Virginia House of Delegates.  He is the author of Fighting Political Gridlock: How States Shape Our Nation and Our Lives, published in 2021 by the University of Virginia Press.  

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