As Gerrymanders Get Worse, Options to Overturn Them Get Weaker
Persuading judges to undo skewed political maps was never easy. A shifting judicial landscape is making it harder.,
Voting-rights advocates are in a North Carolina state court in Raleigh this month, arguing in three lawsuits that Republican gerrymanders of the State Legislature and the state’s 14 seats in the House of Representatives are so extreme that they violate the state Constitution.
Only two years ago, some of the same lawyers were arguing that remarkably similar Republican gerrymanders of the same legislature, drawn a decade ago, violated the same clauses of the constitution. That trial ended with a resounding verdict in their favor, but only after the gerrymandered maps were used for almost a decade.
Winning those kinds of cases, however belatedly, now appears much more of a long shot. Experts say that even as gerrymanders become ever more egregious, the legal avenues to overturn them are becoming narrower.
“The good news is that litigation will probably go a little faster than in the last decade,” Richard L. Hasen, an election-law expert at the University of California, Irvine, and a longtime critic of gerrymanders, said this past week. “The bad news is that it will progress faster because the plaintiffs will lose.”
More and more states — mostly Republican like Ohio and Texas, but now Democratic ones like Illinois — are drawing maps that effectively guarantee that the party in power stays in power.
North Carolina underscores how high the stakes and how weak the legal guardrails are.
With a Democratic governor, two Republican senators and a split record in recent presidential elections — the state voted for Barack Obama in 2008 and Republicans narrowly since then — North Carolina voters are as evenly divided as any in the nation. But legislative and congressional maps approved this month by the Republican-controlled Legislature lopsidedly favor Republicans.
According to PlanScore.org, a nonpartisan website, if the North Carolina vote under the new maps were split 50-50 between the two parties following recent voting patterns, it would give Republicans a 64-56 edge in the State House and a 32-18 margin in the State Senate.
The new congressional map is even more tilted, giving Democrats an advantage in only three of the state’s 14 House seats, down from the five they hold now.
The racial impact of the maps is sweeping. The government accountability watchdog group Common Cause said a quarter of the 36 state legislative seats held by African Americans, all Democrats, would be likely to flip Republican. The district containing the seat that a Black congressman, Representative G.K. Butterfield, has occupied since 1992 also lost much of its Black constituency, and he chose to retire at the end of this term.
“The Legislature handed us a map that’s an extreme political gerrymander and an extreme racial gerrymander,” Mr. Butterfield said last week. “It’s unconscionable, and it’s unconstitutional.”
North Carolina Republicans say they used neither racial nor political data in drawing the maps. Asked whether the State Senate map was a partisan gerrymander, the Republican co-chairman of the Senate redistricting committee, Senator Paul Newton, replied, “The courts will decide that.” But, he added, “No, it’s not. It is fair, and should be a fair and legal map.”
Democrats and voting-rights advocates strongly disagree.
Under Voting Rights Act rules in place before the Supreme Court gutted the law in 2013, “the Justice Department wouldn’t have approved these maps,” said Allison Riggs, the co-executive director of the Southern Coalition for Social Justice, which is representing plaintiffs in one lawsuit.
But that is not the only legal avenue constricted in recent years.
The Supreme Court in 2019 ended a decades-long debate over the constitutionality of partisan gerrymandering, saying it was up to Congress, not the courts, to fix politically skewed maps.
Redistricting at a Glance
Every 10 years, each state in the U.S is required to redraw the boundaries of their congressional and state legislative districts in a process known as redistricting. Following the 2020 census, several states are set to gain or lose seats in Congress.
- What Is Gerrymandering? Gerrymandering happens when governing parties try to cement their power through strategic redistricting, redrawing boundaries so that the party’s candidates are more likely to win seats.
- In Texas: The state’s Republican leadership aims to lock in the party’s advantage in Washington over the next decade by building on the political map previously gerrymandered in 2010.
- In Illinois: Democrats in Illinois proposed highly gerrymandered congressional maps that would consolidate their power and cut the number of Republican seats to three from five.
- In New York: Attempts at redistricting in New York have turned into two proposed map options.
- In Other States: With the redistricting process well underway, Republicans are jockeying for a structural advantage, while Democrats are trying to squeeze everything they can out of their limited leverage.
The court also has made it harder to prove that political districts were drawn to reduce minority voters’ clout, a violation of the remaining rules of the Voting Rights Act. A 2018 Supreme Court ruling in a Texas case said that a state’s record of racial discrimination in redistricting — long a factor in such cases — couldn’t override the assumption that lawmakers were acting in good faith, even when they drew districts that clearly locked in their own power.”
That ruling, with the green light for partisan gerrymandering, is prompting lawmakers to try to dodge lawsuits with a new argument: Maps that dilute minority votes aren’t racially biased. They’re just efforts to neuter political rivals.
Beyond that, legal challenges face a much less sympathetic federal bench remade by the 226 right-leaning judges and three Supreme Court justices confirmed during the Trump administration. Mr. Trump’s choices flipped the partisan balance of three of the 13 appeals courts and filled about one in four district court seats.
The onslaught of gerrymanders would further shrink an already minuscule number of competitive seats in state legislatures and the House of Representatives. Even before the latest maps, partisan advantages were so one-sided that four in 10 seats in state legislatures were uncontested. In the House of Representatives, gerrymanders could reduce the number of competitive districts — now perhaps 51 of the chamber’s 435 seats — by a quarter, said David Wasserman, the chief expert on the House at the Cook Political Report.
“It used to be the people’s House, elected every two years to make it the most responsive,” said Edward B. Foley, a constitutional law scholar and director of Election Law at Ohio State University. “By eliminating competitive districts, you’re making it the least responsive.”
In North Carolina, gerrymanders and lawsuits opposing them are a constant. Suits contesting Republican-drawn maps were filed in 2011, 2013, 2015, 2016, 2018 and 2019. Republicans grudgingly redrew them under court order in 2016, 2017 and 2019.
Understand How U.S. Redistricting Works
This year is different in one key respect: All three suits have been filed in state court, the only courts left to contest partisan gerrymanders — and the courts that gave plaintiffs their rare victory in 2019.
In one, the N.A.A.C.P. and Common Cause claim new maps of the State House and State Senate break state rules aimed at complying with the Voting Rights Act. Another, by the state League of Conservation Voters, an environmental advocacy group, argues that both the legislative and congressional maps are racial and partisan gerrymanders.
In a third, 13 North Carolina Democrats, financed by a Democratic Party affiliate, call the new House of Representatives map a partisan gerrymander. Under state law, two of the cases will go to three-judge panels and then, if appealed, to the state Supreme Court.
Given the long odds facing federal lawsuits, the switch to state courts may become a trend. “There’s a surprising number of opportunities for these state constitutional challenges,” said Marina K. Jenkins, the director of litigation and policy at the National Democratic Redistricting Committee, an arm of the Democratic Party.
The reason is that states offer a clear avenue to attack unfair maps that is absent in federal lawsuits. Forty-nine state constitutions enshrine a right to vote (Arizona, the exception, has an implicit voting-rights guarantee), and 30 require that elections be free or “free and equal.” The federal Constitution contains neither clause.
Both a North Carolina three-judge panel in 2019 and the Pennsylvania Supreme Court in 2018 cited guarantees of free and equal elections in rulings striking down partisan gerrymanders. That could guide other states in interpreting similar clauses, said Joshua A. Douglas, an expert on state election laws at the University of Kentucky law school.
As a result, some legal challenges to gerrymandered maps could come down to the political complexion of state courts, which the nonpartisan website Ballotpedia estimates tilt Republican in 27 states and Democratic in 15. A few high courts, most notably the Texas Supreme Court, have reputations as graveyards for voting-rights suits.
North Carolina’s does not. But a decision by the Republican Legislature in 2018 to elect Supreme Court justices by party affiliation, scrapping nonpartisan elections, has made politics central to many cases. That could have a significant impact on gerrymandering suits, starting with the League of Conservation Voters filing.
That suit, like all redistricting suits, will be heard by a three-judge panel appointed by the chief justice of the Supreme Court. And that chief justice, Paul Newby, is a Republican who in November defeated the Democratic incumbent by 401 votes out of nearly 5.4 million cast. On Friday, he named two Republicans and one Democrat to the panel.
That could well bode a reversal of the panel’s earlier rejection of partisan map-drawing.
Mr. Butterfield said more is at stake in the House lawsuit than the partisan balance in the state.
“What they’re doing in my state, they’re doing in Texas and Georgia and Ohio,” he said. “It’s seismic. It’s monumental. It’s a gerrymandering epidemic that’s not just going to damage the Democratic Party. It will inflict damage on our democracy.”