Part I: Partisan gerrymandering Rears Its Head in Courts, Haunts State Legislatures

Photo Via WPR

AAMIR JAMIL: Partisan gerrymandering across the country is shifting the political landscape for 2024. Lawsuits against vote dilution and racial gerrymandering have the potential to add Democratic-leaning seats in Southern states, but state courts addressing partisan gerrymandering could add several competitive seats in both red and blue states, as Republican and Democratic-leaning state legislatures slash competitive seats.

This first installment of my partisan gerrymandering series covers the court battles that will shape 2024. Ongoing litigation in Wisconsin and New York could add Democratic seats in the House of Representatives while cases in North Carolina and Ohio are expected to strengthen Republicans. 

Wisconsin, famous for extreme gerrymandering, could see new maps in 2024 after a monumental state Supreme Court election. Justice Janet Protasiewicz, who was elected last year, established a liberal majority that could overturn gerrymandered maps and order a redraw. In 2022, the Wisconsin Supreme Court selected legislative and congressional maps after Gov. Tony Evers (D) vetoed state-drawn maps that heavily favored Republicans. The Republican majority on the Court decided to adopt a map nearly identical to the 2010 gerrymander enacted by Republicans. While the map has not yet been challenged in court, such litigation is widely expected.

Beyond gerrymandering, Wisconsin Republicans are weighing extreme measures to solidify their grip on power. Republican leaders in the state senate and assembly threatened to impeach Protasiewicz for saying she believed the maps were “rigged” during the judicial campaign, calling for her to recuse herself from any redistricting case (she chose not to). They later dropped the threat, believing they could circumvent the courts by creating a supposedly neutral redistricting commission. A nonpartisan commission would draw maps, but the legislature would have to approve them, while the legislation positioned the legislature to approve their own maps when the process inevitably breaks down. Similar systems in Iowa and New York saw state legislatures reject maps chosen by commissions, pressuring the commission to instead draw a map favorable to the ruling party. While Evers vetoed the bill, the supermajority could conceivably override it.

New York is also in court as state Democrats push for mid-decade redistricting. The conflict began all the way back in 2014, when disgraced former Gov. Andrew Cuomo (D) passed a law giving redistricting power to a bipartisan commission. The commission, however, is not truly independent, as the legislature can draw the maps if they reject two commission-drawn maps, which the Democratic supermajority of the state legislature has capitalized upon. After the commission failed to draw maps, the legislature drew their own gerrymander, enshrining Democratic power. The New York Court of Appeals upheld a lower court ruling that overturned the maps, ruling the maps unconstitutional. Rather than drawing a remedial map, though, the defiant legislature submitted virtually identical maps, leading the Court to appoint a special master to draw a fair map. 

The new map, with no partisan advantage, saw Democrats lose four seats, when their original map would have eliminated five Republican seats. New York Democrats, fresh off defeat, have returned to court, with an appeals court ruling that the remedial map was only a temporary fix, though the ultimate result of this ongoing litigation remains uncertain.

As Wisconsin and New York voters continue to battle gerrymandering in court, North Carolina and Ohio have continually defied court-ordered redrawing and waited out judicial elections to protect their maps. North Carolina’s long history of gerrymandering continued with the 2020 redistricting cycle, though this 2020 redistricting cycle has been marked by extreme gerrymandering and partisanship. The state legislature gerrymandered the map, but the majority-liberal North Carolina Supreme Court struck down the map as violating the right to free and fair elections. They appointed a special master who designed a fairer map. 

The temporary map was created knowing that the state legislature would redraw it in 2024. In the 2022 elections, Republicans won the state’s three Supreme Court elections, establishing a conservative majority, which has not only let the state legislature redraw the map any way they wanted, but also ruled partisan gerrymandering constitutional. The court reversed its decision on fair maps that was released just a year prior, establishing a  worrying precedent of legal gerrymandering and of courts reversing decisions based on the affiliation of the majority.

North Carolina Republicans have taken their newfound freedom to new heights, drafting an even more gerrymandered map that could flip four seats for Republicans. Three Democrats will be dead on arrival, leaving them to face the possibility of retirement or a state-wide run. Rep. Jeff Jackson (D)’s district was eliminated, pushing him to run for Attorney General. Democrat-affiliated legal groups and voter protection organizations have pledged to bring the map to court for vote dilution, as the sole competitive and African-American leaning district is currently represented by Rep. Don Davis (D). 

North Carolina is now a perfect example of how parties go to great lengths to protect their power. Despite President Joe Biden winning 48.6 percent of the vote in the state, it would be virtually impossible for Democrats to win more than four Congressional districts, constituting under 30 percent of the 14-seat delegation. The Brennan Center for Justice ranked the new map as one of the worst gerrymanders in the country.

Ohio mirrors North Carolina’s case, as Ohio Republicans waited to act until  the retirement of Ohio Supreme Court Chief Justice Maureen O’Connor. After the Court struck down their first congressional map for political gerrymandering, Republicans passed a virtually identical map, leading the Court to strike it down again, though it was used for the 2022 elections. 

After the Ohio Supreme Court was tasked with reviewing Ohio’s appeal to reverse the holding that the current map is unconstitutional, voter groups dropped their lawsuit. This means that the map will remain for 2024. Still, this may have been the best case scenario, as Ohio must redistrict for the 2026 elections (Ohio’s anti-gerrymandering amendment requires a bipartisan majority on the commission for the maps to last a full decade rather than two election cycles, which was not present in 2020). This gives voting groups time to pass a new redistricting ballot measure rather than allowing the legislature to redraw the maps and further gerrymander the state for 2024. Another aspect to the political calculus is the voting advocacy groups’ desire to avoid seeing a more conservative Ohio Supreme Court outright legalize partisan gerrymandering, as in North Carolina.

Overturning partisan gerrymandering in Wisconsin and the potential revival of gerrymandering in New York could net Democrats at least seven seats, and potentially even more if the New York legislature passes a map similar to the last round’s. Still, Republicans are not doomed. Redraws in North Carolina and  Ohio will net Republicans around seven seats. Even though districts will be less competitive after this redistricting cycle, these legal battles could create a back-and-forth and leave the House with slim majorities.

Part II will cover the states which survived the courts without even having to defy them, though their maps only protected political power to varying degrees, as well as states with notable cases of gerrymandering.

Aamir Jamil is a columnist for On the Record. He is from New Jersey and is a freshman studying government and Spanish in the College. He is interested in the roles policy and law play in politics.