Gerrymandering

The nationwide battle over gerrymandering is far from over

Thursday's Supreme Court ruling merely moves the battlefield to the states.

By STEVEN SHEPARD and SCOTT BLAND

The Supreme Court’s ruling Thursday that federal courts have no business deciding how much partisan gerrymandering is too much didn’t end the fight over how politicians draw political lines — it just moved the battlefield.

Democrats and reformers wanted the high court to set standards for when politically motivated map-making goes too far. Instead, justices accelerated the race between the two parties to tilt the system to their advantage by electing as many governors and legislators as possible or, in some states, getting voters to support ballot measures to take the redistricting process out of politicians' hands by 2021.

That’s when states will redraw their maps to conform to the 2020 census — now, without a worry that federal courts will throw them out for being excessively partisan.

But this is hardly the end of the story.

While the justices closed off filing legal challenges to gerrymandering in federal courts, they explicitly said those lawsuits are still fair game in state courts. It was there that Democratic-aligned plaintiffs successfully demolished Pennsylvania’s GOP-drawn congressional map before the 2018 elections.

“We’ll be fighting in the states to ensure that we have a fair redistricting process,” said Eric Holder, the former attorney general, who is now the chair of the National Democratic Redistricting Committee. “We will use the state courts where we are no longer able to use the federal courts.”

That means the high court’s ruling not only raises the stakes for legislative elections, it also heightens the importance of securing liberal or conservative majorities on state high courts, whether they are appointed by governors or directly elected by voters. Because the U.S. Supreme Court has a limited role in overseeing how state supreme courts interpret state laws, those state judges could become the final authority determining which maps stand or fall after the next round of nationwide redistricting.

The new importance of state courts will be on full display next month in North Carolina, where Democratic-linked plaintiffs allege GOP state legislators violated state law in drawing the congressional map. While the Supreme Court’s decision Thursday preserved North Carolina's GOP-drawn congressional map, Democrats can now take a similar case to the state Supreme Court. Six of the seven justices on that court ran as Democrats.

“We believe that this is a fruitful avenue,” said Kathay Feng, the national redistricting director at Common Cause, the good-government group that brought the North Carolina litigation to overturn the map.

Republicans expect Democratic groups to pick up the strategy and unleash it across the country after the 2020 census, after their success in Pennsylvania and the attempt in North Carolina.

“It’s clear, and Democrats have already signaled this, that they’re going to be taking these cases to state courts,” said Jason Torchinsky, general counsel for the National Republican Redistricting Trust. “That opens a Pandora’s box at the state level. State judiciaries are going to have to wrestle with the same questions” that the Supreme Court just did, Torchinsky continued — except in dozens of courtrooms around the country with different judges and different provisions of state constitutions at play.

Republicans also plan to fight Democrats outside the courtroom, said Adam Kincaid, NRRT's executive director. "The next phase of redistricting is going to be about [Democratic] groups doubling down on their attempts to flip state courts," Kincaid said, noting that Republican groups had recently boosted a conservative judge to victory in a nationally watched Wisconsin court race.

While the Supreme Court says federal judges can’t police partisan gerrymandering, it doesn’t mean that all gerrymandering is constitutional. Roberts stressed that Thursday’s ruling does not make racial gerrymandering — using race or ethnicity to pack voters into districts — permissible, and federal courts will still police that issue.

But Paul Mitchell, vice president of Political Data Inc., said he worried that — because the federal courts now can’t evaluate partisan gerrymandering claims — legislators who draw gerrymandered maps will cloak race-based mapmaking as actually motivated by party.

“We know partisanship can be used as a proxy for ethnicity, so this could provide the pretext for a type of racial gerrymandering where people say ‘Democrat’ instead of ‘Latino’ or ‘black,’ and ‘Republican’ instead of ‘white.’ And now, ‘OK, you can gerrymander,’” Mitchell said.

Democrats say litigation is only one page in their playbook, however. Already, some states have independent redistricting commissions or other guardrails against extreme partisan gerrymandering — including a number that have adopted them in recent years.

As if to draw a roadmap, Chief Justice John Roberts cited a number of state-level reforms in his majority opinion. He mentioned Florida’s “Fair Districts” amendments to the state constitution, which state courts used to throw out that state’s congressional maps in 2015 after finding GOP lawmakers violated the amendment’s prohibitions against any political consideration in redistricting.

Roberts also cited amendments to state constitutions approved by voters in Colorado and Michigan in the 2018 midterms that created redistricting commissions. Voters in Ohio also approved a proposal earlier in 2018 to give the minority party in the legislature more power in the redistricting process moving forward.

Democrats want to expand the practice. Holder said his organization — which also has the explicit backing of former President Barack Obama — was exploring pushing changes to the redistricting process in Arkansas, New Hampshire and Oklahoma in 2020.

Moves toward independent commissions aren’t just coming from Democrats, however. Maryland Gov. Larry Hogan, a second-term Republican, ran on redistricting reform and had urged the Supreme Court to strike down his state’s map, a Democratic gerrymander. After the court declined on Thursday, Hogan called the ruling “terribly disappointing” — but pledged to continue the fight for a nonpartisan commission to draw district lines.

“It is, and will continue to be, one of my highest priorities as governor,” Hogan said.

But some of those commissions may also be in peril at the high court. In 2014, justices ruled 5-4 that Arizona’s independent commission, which was approved by voters, did not violate the constitutional provision that state legislatures govern congressional elections. Then-Justice Anthony Kennedy joined the court’s liberal bloc to form the majority in that case, with Roberts writing a blistering dissent.

Kennedy was a moderate on redistricting cases — he suggested that gerrymandering could go too far but never was able to marshal a majority of justices to agree on a single standard. Since his replacement on the court by Justice Brett Kavanaugh, reformers have worried that the precedent set in Arizona could be at risk, with the new conservative majority ruling that only legislatures themselves can redraw congressional lines.

“It is something that gives me some degree of concern,” Holder said Thursday, adding that it would be “appalling” if the court overturned that decision.

Holder expressed some measure of optimism, however, noting that Roberts mentioned some of these voter-approved commissions in his majority opinion as evidence that the states can police themselves.

“It seems like there is an acceptance of the existence of these commissions,” Holder said.