Groups wanting to flip control of the U.S. House of Representatives—or keep it in Republican hands—largely won’t benefit immediately from redistricting court decisions ahead of the 2018 midterm elections, election law scholars told Bloomberg Law.
Partisan gerrymandering challenges—that is, challenges over how much a state can consider politics in drawing districts—have had historic success recently. Still, it will take several months or longer to sort out the flurry of cases moving through the courts, including the Supreme Court, and even longer to implement any changes.
One big exception could be Pennsylvania following a surprise state-court ruling there that could benefit Democrats handsomely next fall if allowed to stand. But time is drawing short for states to redraw districts in other redistricting challenges.
“The closer we get to the elections, the more difficult it will be to remedy any maps that are held unconstitutional in time for the election,” Stuart Naifeh, of the Demos think tank in New York, told Bloomberg Law. Demos is involved in its own high court voting challenge over voter purges by Republicans in Ohio.
The U.S. Supreme Court’s focus in dealing with inequitable voting districts is to get it right for the long term, election law professor Richard L. Hasen, of the University of California at Irvine School of Law told Bloomberg Law. So they’re willing to put up with some inequitable voting districts in the short term, he said.
As a result, even if the Supreme Court agrees that state legislatures acted unconstitutionally, new maps are unlikely to be developed before the mid-term elections, Hasen said.
Moreover, Naifeh said the justices often are reluctant to permit substantial changes in voting rules close to an election. That was evident in its recent decision to block a lower court order to redraw congressional boundaries in North Carolina.
All 435 seats in the House of Representatives are on the ballot Nov. 6. Democrats are looking to flip 24 of them to reach 218 and upend the Republican majority weighed down by President Donald Trump’s low approval ratings.
House delegations in states at the center of many court redistricting battles, including North Carolina and Pennsylvania, are led by Republicans. Democrats dominate the Maryland delegation. Both parties are looking for any edge nationally in what’s shaping up to be a ferocious midterm campaign with potentially historic consequences.
Democrats are hoping partisan gerrymandering challenges could give them an edge.
For the first time in three decades courts struck down voting districts—in Wisconsin, North Carolina, and Pennsylvania—because Republican-led state legislatures considered politics too much during the redistricting process. But the Supreme Court has put several of those rulings on hold while it considers whether partisan considerations in redistricting can ever run afoul of the Constitution, or if it’s just an inevitable part of the process.
In October, it heard arguments in the Wisconsin case, Gill v. Whitford, filed by Democrats. And it will hear Benisek v. Lamone March 28, which was brought by Republicans protesting Democratic-drawn districts in Maryland. Decisions are expected in both cases by the end of June, which likely wouldn’t give those states enough time to redraw districts, if necessary.
Pennsylvania may be another story. The state Supreme Court Jan. 22 struck down voting districts there for favoring one party over another. Republicans, who dominate the Keystone State’s congressional delegation, 12-5, “clearly, plainly and palpably” violated the state constitution when it disadvantaged Democrats, the court said.
Republicans who run the legislature have asked the U.S. Supreme Court to intervene, and the court has shown some interest in the case by asking for a response to Pennsylvania’s stay request.
Still, high court review here is tricky because the Pennsylvania Supreme Court based its decision on that state’s constitution, rather than the U.S. Constitution. This could put the case outside of the U.S. Supreme Court’s authority.
If the Supreme Court passes on Pennsylvania, the new maps could be in place by Election Day, and Democrats could pick up as many as six seats, according to one projection. If the justices take up the case—or even pause the lower court’s decision while it decides whether to take the case—the current maps would likely stay in place this election cycle.
Ruth Greenwood, of the Campaign Legal Center in Washington, said political parties have brought dozens of partisan gerrymandering claims since the Supreme Court first recognized that partisan considerations in redistricting could violate the Constitution in 1986 in Davis v. Bandemer.
But it’s only recently that partisan gerrymandering claims have been successful, with the 2016 Wisconsin ruling opening the floodgates for similar claims, Greenwood said. The Campaign Legal Center is counsel to several groups challenging state voting districts, including the Wisconsin case.
One reason for the recent success of partisan gerrymandering claims are technological developments, UCI’s Hasen said. The “development of modern data analytics and artificial intelligence has made it possible to generate gerrymandered district maps that are virtually guaranteed to entrench one party in power,” Naifeh added. After the 2010 census, state legislatures “adopted a number of these extreme, computer-aided gerrymanders,” Naifeh said. “For example, Wisconsin, North Carolina, and Virginia put into place gerrymanders that essentially guaranteed Republican control of the state legislature for the foreseeable future.” The same was true of Democrats in Maryland, the GOP plaintiffs in Benisek v. Lamone argue.
As a result of these advancements, this decade has seen some of the most brazen gerrymanders in history, making it easier for courts to strike them down, Hasen said.
Hasen said the Wisconsin and Maryland cases are the ones to watch. If the Supreme Court lays out a standard for when partisan gerrymandering can be considered unconstitutional, it will seismically affect redistricting going forward, Lisa Soronen, of the State and Local Legal Center in Washington, told Bloomberg Law.
“A totally new set of rules would apply to redistricting,” Soronen, whose group advocates for state and local governments at the Supreme Court, said.
These partisan gerrymandering cases likely won’t affect the results of the 2018 elections, but the effect on 2020 and beyond could be huge.
KENNEDY IN THE MIDDLE
The outcome of those cases is still very much up in the air, Hasen said. Following arguments in the Wisconsin case, there seemed to be four justices firmly on the side of allowing partisan gerrymandering claims to go forward, four firmly against that idea, and Justice Anthony M. Kennedy in the middle, Hasen said. The court is likely to hold on to the Wisconsin case until it’s ready to decide the Maryland challenge and do both together, Michael Li, of the Brennan Center for Justice, New York, told Bloomberg Law.
Even if the Supreme Court agrees that partisan gerrymanders can go too far, its decision will likely come too late to alter the results of the 2018 mid-term elections, Hasen said.
Courts not only have to worry about the November general election, but also primary elections and the even earlier candidate-filing deadlines.
That’s why lower courts striking down voting districts as partisan gerrymanders have set aggressive schedules for adopting new maps in time for the elections.
“In the recent decision in North Carolina, the court gave the state just 3 weeks to draw a new map,” Naifeh said. There, a federal district court panel found Republicans unfairly drew congressional maps and ordered a redo.
As expected, however, the Supreme Court put that case on hold, making it unlikely that the new map will be in place by the state’s Feb. 28 candidate filing deadline.