Democrats are expected to lean heavily on state Supreme Courts in the upcoming fight over redistricting after key pathways to fighting maps gerrymandered by Republicans were cut off to them.
The starting gun for redistricting was fired Thursday with the release of detailed census data, which will inform the drawing of both congressional and state legislative districts in every state. Republicans have a yawning edge in the map-drawing process, having full control in states that will delineate 187 House districts, while Democrats will have full control to demarcate just 84.
Democrats already start the process on their back foot in the fight over the maps after a 2020 cycle of missed opportunities, when the party failed to flip a single state legislative chamber. And a 2019 Supreme Court decision ruling that lawsuits over partisan gerrymanders raise a political question outside of federal courts’ purview leaves Democrats with one main recourse for challenging GOP maps drawn along partisan lines: state courts.
Democrats are not forfeiting their option to go to federal court, particularly since potential complaints of maps unfairly grouping voters of color are still covered under the Voting Rights Act and fall under federal courts’ jurisdiction. But state courts are anticipated to play a growing role in light of the 2019 decision in Rucho v. Common Cause and the recent explosion of partisan gerrymandering complaints.
“Right now, it's the only viable litigation strategy Democrats will have to contest partisan gerrymanders now that the U.S. Supreme Court has effectively closed the federal courthouse doors to these cases,” said David Daley, an expert on partisan gerrymandering.
The new strategy was sparked in 2018 and 2019, when decisions from state courts led to Republican maps in Pennsylvania and North Carolina being redrawn, handing Democrats more seats in those states.
Democrats say they have fertile ground to launch similar lawsuits moving forward under various state constitutions.
Thirty different state constitutions include some form of requirement that elections be “free” or “fair,” according to the National Conference of State Legislatures.
“The intent of the law is clear in those states, and the judges should follow them. And we will fight for that,” said Kelly Burton, the president of the National Democratic Redistricting Committee, which was founded by former Attorney General Eric HolderEric Himpton HolderArkansas legislature splits Little Rock in move that guarantees GOP seats Oregon legislature on the brink as Democrats push gerrymandered maps Christie, Pompeo named co-chairs of GOP redistricting group MORE and has supported redistricting lawsuits.
Democrats already launched a small handful of lawsuits in state courts in Louisiana, Minnesota and Pennsylvania in April just hours after preliminary census data was released. The complaints say courts there should be ready for gridlock in the redistricting process and prepare to draw the maps themselves.
All three states have Democratic governors and Republican-controlled legislatures.
Those suits are expected to be the first of many as the redistricting battles get underway given the furious pace at which suits have already been filed against election results relating to the 2020 presidential race.
“I can confidently say that the  midterm elections will be the most litigated midterm elections, and the 2021 redistricting cycle will be the most litigated redistricting cycle. And that's just because that's of the trajectory that we're on,” Marc Elias, Democrats’ top elections lawyer, said in an interview.
Democrats will be heavily reliant on litigation as experts and operatives forecast that gerrymandering could take on a newly intense form in the 2021 redistricting process.
First, the growing availability of legislators to identify specific voters and draw increasingly precise maps has only grown with improving data gathering technology. And with the threat of more sweeping federal suits based on partisan complaints being taken off the table, Democrats worry redistricting will entrench them further in the minority in Republican-led states.
“The level of gerrymandering that we saw after 2010 was like nothing we've ever seen before, and I predict the level of gerrymandering we'll see in 2021 is going to make 2010 look like child's play,” Elias said.
The redistricting fight is expected to play out in an array of battleground states with Republican-led legislatures, including Arizona, Florida, Georgia, Michigan, Minnesota, North Carolina, Ohio, Pennsylvania, Texas and Wisconsin. But while some of those states have Democratic governors, the party’s failure to capture any of their state legislative chambers will make them more reliant on the courts to serve as a bulwark against maps that give Republicans an even bigger edge.
Still, going through state courts has its drawbacks. For one, several states elect judges, including justices to their supreme courts, leaving complaints about partisan gerrymandering in partisan hands.
“The question is if you're in, say, a Republican state that has a Republican-elected court system, are they really going to be hospitable to a gerrymandering claim in state courts under the state constitution?” said Michael Parsons, a scholar at the New York University School of Law.
Democrats still have avenues to file claims in federal court, including by alleging that a gerrymander is based on a community’s racial makeup and that a map violates voters’ equal protections. However, experts warn that Republicans can argue those gerrymanders are based on partisanship, and thus kick them over to state courts under the Rucho ruling.
“I think it unfortunately complicates racial gerrymandering claims, which have been a successful route for challenging maps in the past,” said Parsons. “Because now states can say, ‘yes, we packed all of these individuals into a district, but it's because they're Democrats. The racial impact was not on our mind, we packed them because of their party not because of their race.’ And so that would actually be a more successful and viable defense nowadays.”
Democrats also gerrymander, and are expected to do so in Illinois, Maryland and New York. But Republicans have far more opportunity to draw advantageous maps based on where they control state legislatures, raising the stakes for Democrats heading into the 2022 midterms.
The power of an effective court strategy bore out in Pennsylvania and North Carolina, where the combined six-seat swing toward Democrats more than accounts for the party’s current five-seat House advantage. But Democrats will be fighting tooth and nail to fight redistricting maneuvers that alone could hand Republicans the majority before even considering existing swing seats.
“It ends up being about a net gain of a dozen or so for Republicans if they take the most aggressive route that is before them, which, given what they've done in the 2011 cycle on, and given everything that Republican officials have been saying, I don't think there's any sense that they won't take full advantage of this process everywhere that they can,” Daley said.
Beyond the midterms, redistricting will impact state legislative races and House contests for the next decade. And if past is precedent, this year’s maps could even hand Republicans an advantage in state legislative races through 2031 – the next time redistricting will occur.
“Republicans had a free hand to draw state legislative maps in 2011 in Florida, North Carolina, Wisconsin, Pennsylvania, Ohio and Michigan. Those are some of our most competitive swing states. Democrats did not retake a single chamber of either legislative branch in any of those states for the last 10 years,” Daley said. “The maps that were drawn in the last decade were historic in their permanence.”
For their part, Republicans appear unfazed by the looming threat of Democratic litigation, boasting of their strong showing in 2020 and saying they’re ready for a court battle.
“While we are proud of what we accomplished in 2020 to preserve fair redistricting processes in key states, we know Holder, Obama, and the liberal billionaires bankrolling them have every intention to ‘sue until it’s blue’ in Republican-led states across the country to compensate for their massive failures at the ballot box last November,” said Republican State Leadership Committee Communications Director Andrew Romeo.