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House Democrats’ path back to the majority could run through the Supreme Court

The Early 202

An essential morning newsletter briefing for leaders in the nation’s capital.

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In today’s edition …  Harris’s visit to Philippine islands could raise tensions with China … What we’re watching: Sen. Graham will appear before a grand jury in Fulton County, Ga., today ... … but first …

The campaign

House Democrats’ path back to the majority could run through the Supreme Court

When Democrats recaptured the House majority in 2018, they were aided by legal victories in the preceding years that produced more favorable maps for the party in Florida, Pennsylvania and Virginia.

Days after losing the majority this cycle, Democrats are eyeing a similar strategy to help them retake the House in 2024 — and this time redistricting lawsuits alone could put them in a position to erase Republicans’ fragile majority.

Democrats are suing to overturn congressional maps in six states they weren’t able to undo before the midterm elections: Alabama, Florida, Georgia, Louisiana, Ohio and Texas. If courts side with them, Democrats believe it could be the difference between the majority and the minority.

  • “I certainly think that were we to win the majority of those cases [and keep the seats they currently hold], Democrats would be in control of the House of Representatives,” said Eric Holder, the former attorney general who chairs the National Democratic Redistricting Committee (NDRC). “I don’t think there’s any question about that.”

Marina Jenkins, the NDRC’s director of litigation and policy, estimated Democrats could pick up nine to 13 seats if they prevailed in all six cases — enough seats to flip the House.

Republicans say the strategy is doomed, especially after voters elected conservative state Supreme Court justices in Ohio and North Carolina.

“It makes total sense that Democrats would try to bring back their ‘sue-to-blue’ strategy, because it did work for them in the middle part of the last decade,” said Adam Kincaid, the president and executive director of the National Republican Redistricting Trust. “But it failed in 2022. It was the first time the NRRT was around to push back against these liberal lawsuits.”

No longer ‘one-and-done’

Democrats started the NDRC in 2016 to exert greater control over the once-a-decade redistricting after Republicans dominated the process following the 2010 Census. Republicans countered in 2017 by forming the NRRT.

In interviews, NDRC President Kelly Burton and Holder credited the group’s efforts with helping to limit Republicans’ gains in the House.

“Our redistricting strategy worked,” Holder said.

But Marc Elias, a leading Democratic election lawyer, said it’s misleading to think of redistricting as something that happens once a decade. Instead, it’s a never-ending legal battle.

  • “Redistricting is no longer a one-and-done phenomenon,” Elias said. “It is an ongoing phenomenon that as we saw in the last decade can have profound consequences as we get later and later into the decade.”

Redistricting lawsuits helped Democrats gain nine House seats between 2010 and 2020, Elias said. If Democrats hadn’t brought those suits, the party might not have held onto its House majority in 2020.

Legal battlegrounds

Here are the six battlegrounds where Democrats’ most important redistricting lawsuits are being fought:

  • Alabama, Georgia and Louisiana: Three federal judges threw out Alabama’s new congressional map in January and ordered the state legislature to draw a new one that included two districts likely to elect Black representatives — a victory for Democrats — but the Supreme Court reinstated the map while Alabama appealed the ruling. Similar cases in Louisiana and Georgia were stayed pending the outcome of the Alabama case, in which the Supreme Court heard arguments last month. If the court rules in Democrats’ favor, “I expect we will see additional minority-opportunity districts in each of those three states,” Elias said — and maybe two in Georgia.
  • Florida: Democrats are suing under federal and state law in Florida, where Republican Gov. Ron DeSantis’s map scrapped a district linking Tallahassee and Jacksonville with a large population of Black voters. The new map hit Democrats hard, reducing the number of districts that President Biden carried in 2020 from 12 to eight — but the state could be tough legal terrain for Democrats. “Florida is a super-uphill battle, and we are clear-eyed about that because of the hostility of the judiciary in that state,” Jenkins said.
  • Ohio: The state Supreme Court rejected the new maps drawn by the state’s Republican-led redistricting commission in July and ordered commissioners to draw a new one by Aug. 18. They did not. Ohio Republicans appealed last month to the U.S. Supreme Court, which hasn’t agreed to hear the case yet.
  • Texas: This is the most complicated legal landscape of all the states Democrats are fighting in, and it’s unclear when the suits there will be resolved or how many more competitive seats they might yield if Democrats prevail. “I hesitate to hazard a guess because it is such a dynamic situation in that so many different groups are litigating and asking for different kinds of relief,” Elias said.
Potential pitfalls

Kincaid doesn’t expect the maps in Ohio — where Democrats picked up a seat in the midterms — will get any better for Democrats if they’re redrawn. He defended the maps in the other states and warned that any victories Democrats win in court could backfire on them.

  • “If the Supreme Court adopts some sweeping new application of the Voting Rights Act [in the Alabama case], we expect to bring significant offensive litigation in places where Democrats drew maps,” Kincaid said, though he declined to specify where.

If Democrats prevail in Texas, he added, “they could open up the map for a more Republican-friendly map than we currently have.”

Michael Li, a senior counsel at the Brennan Center for Justice who is an expert on redistricting, agreed that Democrats could pick up as many as a dozen House seats if they prevailed in all six states. But he also agreed with Kincaid that Texas Republicans might draw a map that’s worse for Democrats that the current one if plaintiffs win there. The same is true in North Carolina, he added, where the current map must be redrawn before 2024 and where Republicans this month gained control of the state Supreme Court.

Rep. Ami Bera (D-Calif.), one of two lawmakers vying to lead the Democratic Congressional Campaign Committee, said he suspected Rep. Richard Hudson (R-N.C.), the incoming chairman of the National Republican Congressional Committee, would take a special interest in his home state’s maps.

“We’d better be fighting tooth and nail and using whatever legal tools we can use, but also getting our candidates ready to defend themselves,” Bera said.

At the White House

Harris’s visit to Philippine islands could raise tensions with China

Vice President Harris concluded her week-long trip through Asia today in the Philippine island of Palawan.

The trip brought Harris to the edge of the disputed South China Sea and could raise tensions with Beijing shortly after President Biden met recently with Chinese President Xi Jinping at the Group of 20 summit in Bali, Indonesia.

“China has staked a claim on a majority of the South China Sea, and the Philippines has lodged diplomatic protests against China’s maritime activities in the region, as local fishing communities have reported dwindling fish availability and displacement from their traditional fishing grounds amid hostilities from the Chinese coast guard,” our colleague Meryl Kornfield, who is on the trip, reports.

Harris has used the trip to reaffirm strong ties between the United States and the Philippines and signal support for the country in its disputes with China.

“So, to all of you here today, I say: The U.S.-Philippines Alliance is strong. We are committed to you. We are committed to your success. And to all the lives and livelihoods that rely on your work,” she said Tuesday in remarks delivered aboard a Philippine Coast Guard vessel.

What we're watching

Sen. Lindsey O. Graham (R-S.C.) will appear before a grand jury in Fulton County, Ga., today regarding his phone conversation with Georgia Secretary of State Brad Raffensperger (R). Graham asked Raffensperger about “reexamining certain absentee ballots” in the state to “explore the possibility of a more favorable outcome” for former president Donald Trump after he lost to Biden, per the subpoena.

The long-awaited testimony comes after Graham, who called the conversation “legislative fact-finding,” made multiple attempts to block the subpoena. Jurors have already heard from Rudy Giuliani and Georgia Gov. Brian Kemp. Former White House chief of staff Mark Meadows, former national security adviser Michael Flynn and former House speaker Newt Gingrich have also been ordered to testify but are pushing back.

The Data

Hundreds of mass shootings in 2022, visualized: “There have been more than 600 mass shootings so far this year in the United States, according to the Gun Violence Archive,” per our colleagues Júlia Ledur and Kate Rabinowitz. “At least five people were killed and 18 more injured in a shooting at Club Q, an LGBTQ club in Colorado Springs, this weekend. It comes less than a week after a shooting at University of Virginia in Charlottesville left three dead.”

  • “Mass shootings — where four or more people, not including the shooter, are injured or killed — have averaged more than one per day so far this year. Not a single week in 2022 has passed without at least four mass shootings.”

The Media

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There was a ROAST session at the White House 🦃

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