State courts continue redrawing maps, as Supreme Court backs off

With primaries quickly approaching, state courts are likely to act faster on redistricting cases

An activist holds up a sign in front of the Supreme Court in 2018.  (Bill Clark/CQ Roll Call file photo)
An activist holds up a sign in front of the Supreme Court in 2018. (Bill Clark/CQ Roll Call file photo)
Posted February 10, 2022 at 1:01pm

Hours after the federal Supreme Court let Alabama keep in place a congressional map that a lower court found in violation of the Voting Rights Act, Ohio’s Supreme Court struck down for a second time its state map on gerrymandering grounds.

The Ohio court ordered its legislature to try a third time to redraw its district lines. The ruling came just days after the high court in North Carolina similarly rejected its state’s congressional map and ordered boundaries redrawn.

With more than 20 redistricting cases still pending, any other orders to redraw congressional maps are likely to emerge from state courts, after the Supreme Court seemingly bowed out in Monday's decision on Alabama. There, Justice Brett M. Kavanaugh, in a concurring opinion, argued against redrawing the state’s map because there wasn’t enough time before its May 24 primary. 

[Supreme Court signals few map changes before midterms]

Michael Li, senior counsel for the Brennan Center for Justice at New York University Law School, called the recent state court decisions “a bright spot” in this current redistricting cycle.

“As the federal courts seem to be retreating from the democracy space, I think the defenders of democracy may increasingly be the states themselves,” Li said.

Redistricting experts have said the process may determine control of the House, which Democrats currently hold by 10 seats. So far, court-ordered redraws of Ohio and North Carolina congressional maps have benefited Democrats, coming in states where Republicans control the mapmaking process.

Litigation over the Voting Rights Act or political gerrymandering is separate from so-called impasse litigation — where both federal and state courts consider how to handle state governments with split partisan control that have not finished the redistricting process. Litigants have such cases ongoing in Pennsylvania, Louisiana, Wisconsin and Minnesota.

State court successes

In state courts, litigants have found success in an arena the Supreme Court removed itself from: partisan gerrymandering.

The Supreme Court ruled in Rucho v. Common Cause in 2019 that federal courts could not consider partisan gerrymandering claims because they were best left to the states. So far this year, challengers to GOP-drawn maps have used that to their advantage in Ohio and North Carolina courts.

In its ruling last month, Ohio's high court tossed the map passed last year by the state’s Republican-controlled legislature, saying it violated a 2018 constitutional amendment on redistricting. Language barring any plan “that unduly favors or disfavors a political party” means the legislature has to redraw the maps in advance of a March 4 candidate filing deadline, the court ruled.

In North Carolina, the state Supreme Court issued a 4-3 ruling requiring the state to draw a new map with a partisan breakdown more closely resembling the state’s overall voting results. 

Critics of the map argued it diluted the power of minority voters. Bob Phillips, the executive director of Common Cause North Carolina, one of the map’s challengers, told reporters on a call Wednesday that the state wants to be “the leader of the path forward to a better way with regards to redistricting.”

“We watched all this train wreck and simply decided we could not sit back and see racist gerrymandered maps locked in for the next decade that will ensure one party in power at the expense of voters of color,” Phillips said.

Challengers of North Carolina’s map successfully argued that Republicans would likely win 10 or 11 of the state’s 14 newly drawn congressional seats — in a state former President Donald Trump won by 1 percentage point in 2020.

Asher Hildebrand, a former Democratic congressional staffer and now a political science professor at Duke University, said the ruling goes beyond a 2019 case that resulted in a new congressional map for the 2020 election.

“It is a really full affirmation of the idea that diluting voting power based on partisan affiliation is a violation of voters constitutional rights,” Hildebrand said.

Hildebrand said the ruling could result in significant changes in the state’s congressional map, including shoring up a traditionally Black district in the northeast part of the state. Rep. G.K. Butterfield, D-N.C., currently holds the seat and announced his retirement last year, calling the state’s new map “racially gerrymandered.”

Challengers in other states, including Pennsylvania and Florida, still have state litigation pending.

Allison Riggs, chief counsel for the Southern Coalition for Racial Justice, told reporters on a call Wednesday that Common Cause intervened in a “bizarre” Florida case where Gov. Ron DeSantis asked for the state Supreme Court to preemptively rule a draft map he drew constitutional. The draft would remove a Black-majority congressional district in the northern part of the state, where voting is polarized along racial lines. On Thursday, the state's high court rejected DeSantis' request for an advisory opinion.

Riggs said the governor's map would have violated the state’s fair districts constitutional amendments, an avenue for state courts to address partisan gerrymandering explicitly left open by the Supreme Court. 

“We understand the way that race is a proxy for partisanship and partisanship sort of puts a target on the back of voters of color,” Riggs said.

Alabama reversal

The Supreme Court’s 5-4 vote Monday staying the lower court order marks the first time the justices have weighed in on a congressional map this redistricting cycle.

Li noted that litigants challenging federal maps under the Voting Rights Act are increasingly pursuing longer-run strategies that could result in years of delay while the cases play out. In Texas, for example, challengers to the state map have sought a weekslong trial in the fall that would not resolve in time for the midterm elections.

Democrats in Congress seized on the ruling to push for passage of their Voting Rights Act bill, which have stalled in the closely divided Senate. 

In a floor speech Tuesday, Sen. Richard J. Durbin, D-Ill., said the Supreme Court decision in the Alabama case undermined the law’s protections. He pointed to the 2013 Supreme Court decision in Shelby County v. Holder that overturned the framework used for Justice Department preclearance of election changes, as well as more recent decisions that curtailed the reach of other parts of the law.

“As a result of these decisions, legal protections for voters of color throughout the country are being systematically dismantled by the Republican Party through state legislatures and, sadly, by our federal courts,” Durbin said.