As both sides Gerrymander furiously, state courts block the way

State courts in Democratic and Republican states have aggressively overturned gerrymandered political maps, as this year’s redistricting battles drag on and begin to create chaos in the upcoming primary election.

In Maryland, a state judge last week dismissed a map of Congress drawn by Democrats, citing an “extreme gerrymander.” In North Carolina, the State Supreme Court in February invalidated maps drawn by Republicans. And in New York, a state judge ruled Thursday that a map drawn by Democrats was “unconstitutionally drawn with political bias.”

The flood of rulings reflects an emerging reality: that state courts, rather than federal courts, have become a primary firewall against gerrymandering as Democrats and Republicans try to carve maximum advantage from the cards that they control. The parties were encouraged to do so by a 2019 Supreme Court ruling that federal courts cannot hear partisan gerrymandering challenges, although they can still hear racial gerrymandering challenges.

At the same time, however, state judges in at least five states — many, but not all, of the party opposing whoever drew the districts — slapped distorted maps like illegal partisan gerrymanders.

“There’s a fire, and at least some people are holding the hose,” said Chad Dunn, an election lawyer who has represented Democrats in redistricting cases.

Many appeals and final rulings remain, but for now the flurry of court rulings leaves the redistricting round pretty much where it has stood for weeks: in a surprising draw.

Neither Republicans nor Democrats have gained a distinct advantage through the once-in-a-decade process in which state legislatures draw maps and party allies fight for them in court. This round hasn’t turned out to be the nightmare many Democrats feared, but recent court rulings have slowed their attempt to return to a more even map through their own aggressive gerrymandering.

The legal back and forth also left some states’ maps in limbo relatively late in the primary schedule, creating confusion in states like North Carolina and Maryland that had to delay primary elections. Delays resulting from legal challenges are common in redistricting rounds, but the process is happening especially late this year as the pandemic has significantly delayed census results and slowed the start of redistricting.

In states like New York and North Carolina, the judge or judges vacating one party’s cards came from the other party.

“That’s clearly a factor, and while I don’t want to call the courts partisan, judges do matter,” said Michael Li, a redistricting expert at the Brennan Center for Justice. He added that judges who were willing to hear such cases and decide favorably for the challenger, “often happened to be the opposing party to the party that drew the cards.”

But in other cases, judges have defied political expectations.

The tightly divided and conservatively controlled state supreme courts of Ohio and Wisconsin have sided with the Democratic cards – although in each case the court has a swing judge who often sides with the members liberals. And in Wisconsin, the state Supreme Court’s choice of a map drawn by Governor Tony Evers, a Democrat, was later overturned by the US Supreme Court.

In Maryland, an aggressive map drawn by Democrats was struck down last week by a state court judge, Lynne Battagliawho served as chief of staff to former Senator Barbara A. Mikulski, a five-term Democrat from Maryland who was appointed US State’s Attorney by President Bill Clinton.

Doug Mayer, the president of Fair Maps Maryland, the organization aligned with Gov. Larry Hogan, a Republican, who has challenged state maps, said his lawyers told him not to say anything in public about politics of Justice Battaglia and that “I’m very glad I did it. Gerrymandering, Mr. Mayer said, should be a practice that both major parties agree to eliminate.

“I think gerrymandering is voter suppression, no matter who does it,” Mayer said. “Republicans doing it in Texas and North Carolina are just as bad as the SOBs here. More people need to say that.

This year, the Supreme Court has issued inconsistent rulings on whether lower courts can order legislatures back to the drawing board.

In February, judges reinstated a congressional map of Alabama after a lower court ordered the Republican-controlled state to draw a majority-black second district. But in March, the Supreme Court struck down a congressional map of Wisconsin drawn by the state’s Democratic governor and ordered a new map produced.

“This unprecedented act and inconsistent application of the judiciary is patently and regrettably undemocratic,” said Eric H. Holder Jr., former attorney general and chairman of the National Democratic Redistricting Committee.

Marc Elias, a Democratic lawyer and prominent voting rights advocate, argued that his defense of cards that clearly help Democrats was not incompatible with his fight against Republican gerrymanders.

“What voters want from a fair map in Alabama won’t necessarily be the same in a state like Maine,” he said. “I tend to look at state maps and ask a question, ‘Is this legal or not?’ I leave it to others to be social scientists as to whether they think it’s wrong or not for other reasons.

State courts are a relatively new venue for redistricting cases. For decades, most legal challenges to gerrymandered maps have taken place in federal courts, and the Voting Rights Act of 1965 has often been used to challenge unfairly drawn districts.

But in 2017, four years after the Supreme Court gutted many of the Voting Rights Act’s protections, the League of Women Voters challenged 2011 Pennsylvania Congress cards in the state court system, arguing that the state Constitution “protects the right of voters to participate in the political process, express political opinions, join or support a political party, and to vote “.

The Pennsylvania Supreme Court, which leaned towards the Democrats, sided with the women’s group in January 2018, finding the cards had “clearly, plainly and manifestly” violated the State Constitution. The decision served as a signal to lawyers and good government groups across the country.

“There is a renewed interest in this rich vein of state constitutional law and state constitutional tradition that many people had overlooked, because as lawyers we have been training for 60 years that the Federal Court is the place where we go to assert rights,” Mr. Li says. “And we have kind of tended to treat state courts and state constitutions almost like a son-in-law. And then we realize there’s actually a lot out there.

Comments are closed.