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.”