The Supreme Court just decided that federal courts have no say in whether it’s okay for lawmakers to use partisanship to draw their electoral districts. It’s a controversial decision that means all challenges to partisan gerrymandering in the federal courts essentially evaporate now.
The problem for Democrats is that the federal courts have been their main avenue to knock down Republican-drawn maps and get districts redrawn that don’t heavily favor Republicans. (Both parties gerrymander, but Republicans control more state legislatures than Democrats, so they’ve been able to redraw more districts in their favor over the past decade.)
Courts have said it’s unconstitutional to use voters’ race to draw maps. But in recent years, the notion that it’s wrong to use voters’ partisanship has been building steam, too. Lower courts have struck down partisan gerrymandering in states like North Carolina, Wisconsin and Maryland. The first two would have given Democrats more seats in Congress and state legislatures, while getting courts to strike down Maryland’s maps would have benefited Republicans.
Now, redistricting advocates have a much heavier lift to try to change maps drawn specifically to favor one party.
The most obvious is that they could go through state courts rather than the federal ones. That worked in Pennsylvania, when the state’s Supreme Court struck down all GOP-drawn maps and essentially allowed Democrats in Congress to pick up more seats in a state crucial to giving them the majority in the House of Representatives in 2018.
That’s what redistricting advocates in North Carolina plan to do next. “North Carolina can’t force redistricting reform on its legislature, but it can take it to the state courts, and we will go to the state courts,” said Allison Riggs, senior voting rights attorney for the Southern Coalition for Social Justice, which argued the North Carolina redistricting case at the Supreme Court.
But North Carolina, ground zero for the redistricting fight, has a partisan Supreme Court, which means the fight begins at the ballot box first.
And that brings us to an even heavier lift for redistricting advocates: getting lawmakers to give up their map-drawing power. (Most states leave it to the state legislature to draw maps.)
That requires two things: 1) winning elections for redistricting advocates, and 2) persuading those lawmakers to push reforms where they give up their own power to keep themselves elected, like appointing independent commissions to draw the maps.
The courts don’t require winning elections first, which is one reason it has been such a popular avenue for redistricting fights — indeed, the main avenue. And even if advocates successfully switched gears and motivated people to vote in high numbers for lawmakers who support redistricting reform, it isn’t always a guarantee of success.
Republicans in North Carolina (and Democrats in Maryland) have drawn districts so that many of their lawmakers are protected even in a wave election. “One of the problems with the North Carolina gerrymander was even with a high turnout, it wasn’t possible for North Carolinians to produce different outcomes even if they wanted it,” Riggs said.
Redistricting advocates have had some success going around legislatures and asking voters whether they wanted to set up redistricting commissions. Pildes points out that in 2018, five states had independent redistricting commissions on the ballot, and it passed in all five states. “That’s a very significant development,” he said.