After the New York state Supreme Court this week dashed Democrats’ hopes of winning district elections this decade, the party faces an increasingly precarious legal environment in the bipartisan struggle to define legislative lines .
The New York Circuit Court of Appeals on Wednesday overturned a map that Democrats have been struggling with the local state legislature, ruling that a bipartisan expert will instead draw the boundaries for the state’s 26 congressional districts. It was at least the fifth time this cycle that a state court has ruled that maps drawn by its legislature were overly biased, with a Democratic map also falling in Maryland and Republican-drawn maps in Kansas, North Carolina and Ohio were also thrown away.
Still, Republicans are favored to win the state Supreme Court races in North Carolina and Ohio in November, which would allow those GOP-controlled lawmakers to implement more partisan maps before 2024. In contrast, the 4-3 decision in New York came from a court appointed entirely by Democrats, a party now bound by a bipartisan process enshrined in the state’s constitution.
“Democratic judges are not as inclined to condone extreme partisan maneuvering as Republican judges are,” said Lakshya Jain, an associate professor at the University of California-Berkeley who writes about district elections on the Split Ticket website. “Democrats have long pushed for constituency reform and anti-gerrymandering legislation,” Jain noted, and that seeps into her judges’ preferences.
The biggest test of this potential legal asymmetry is occurring in Florida, where Democrats and civil rights groups are contesting a congressional card pushed through by Republican Gov. Ron DeSantis the GOP-controlled legislature there. Lawmakers had initially lashed out at the map, which aggressively favors their party for dissolving two pluralistic black districts, potentially in violation of the state’s Fair Districts Amendment, which requires lawmakers to chart districts where racial and linguistic minorities live choose their elected representatives.
Republicans insist they obeyed the law in Florida, though many legal experts disagree.
“This is not a difficult legal question,” said Douglas Spencer, law professor at the University of Colorado-Boulder. “It would be a complete abandonment of the rule of law if they took the most manipulated map in American history and left it standing.”
Spencer said he’s optimistic that the Florida state Supreme Court will eventually tear down the card, but notes he’s in the minority among experts on redistribution. That’s because six of the seven members of the state Supreme Court were appointed by Republican governors.
Democrats anxiously began the ten-year circuit elections, with Republicans in control of winning far more congressional seats. This is due to a combination of the GOP’s success in the state elections and the Democrats’ reform push, which has led them to cede line-drawing powers to independent commissions in states they control, like Colorado.
But Democrats have been relatively successful, bringing the typical 2020 House seat close to President Joe Biden’s five-point winning margin. Until the New York and Florida lawsuits are over, it’s impossible to gauge exactly how the party has fared, but it’s likely the map will still lean more toward Democrats than it did after 2010, when Republicans used their dominance in the Statehouse to to try to secure a majority in the House of Representatives through partisan cards. But much of the Democrats’ gains came from New York, the most populous state in which the party controlled line-drawing and one where it could snag up to four House seats on its party ticket.
The recent spate of lawsuits in state courts stems from a court ruling at the end of the last redistribution cycle. In 2019, the conservative majority of the U.S. Supreme Court ruled that federal courts have no role in overseeing partisan gerrymanders or maps explicitly drawn to one party’s advantage by distorting lines to attract enough voters to be reliable to win elections.
This has triggered the reallocation of litigation to state courts. “In many ways, state courts have been the heroes of this cycle,” said Michael Li of the Brennan Center for Social Justice, which opposes gerrymandering and pro-reforms redistribution.
But Li noted that state courts have weaknesses that the federal system does not. The makeup of many state courts changes from election to election, making decisions in places like North Carolina and Ohio dependent on which party has the political winds in November. State courts are also patchy — in some states like New York, they’re aggressively taking down Gerrymander, while in places like Texas the state Supreme Court is so conservative that civil rights groups routinely don’t even bother asking him for help, they do instead, federal courts do challenge maps drawn by the GOP-controlled legislature over the past several decades.
There is even more uncertainty about the legal landscape of this cycle’s redistribution, as the conservative majority of the US Supreme Court has indicated that it could rewrite the rules for drawing legislative districts by lot. In February, Conservatives at court said they could revise district draw standards to meet the Voting Rights Act’s requirement that minorities have the opportunity to elect their own representatives, rather than being simply dispersed among voters of other races. And in March, four conservative justices said they wanted to consider arguments by Republican attorneys that only state legislatures — and not state courts — call the shots in creating congressional maps.
Still, redistributive reformers said they remain encouraged by the courts’ performance so far this cycle. Common Cause’s Suzanne Almeida, a frequent trial opponent against Gerrymander, found that courts in Republican states like Ohio have joined those in deep Democratic states like New York in striking down partisan cards.
“If I ruled the world,” Almeida said, there would be national standards against gerrymandering to ensure distorted maps in a large state didn’t flip the entire congressional map. But a Democratic proposal for just that fell through in Congress earlier this year. So Almeida said, “We’ll get the wins we can get.”