Democrats and Republicans fighting over the decennial process of redrawing state political boundaries are increasingly turning to state courts, putting pressure on ordinarily overlooked state Supreme Court justices who will have a disproportionate new impact on the future of the U.S. House of Representatives.
The importance of those courts was on display Wednesday, when the Ohio Supreme Court ruled against Republican-drawn state legislative maps that would have effectively guaranteed GOP dominance of the legislature for at least four years. Chief Justice Maureen O’Connor, a Republican, ruled that the maps violated provisions of a 2015 constitutional amendment that required Ohio’s new redistricting commission to avoid favoring one party or the other.
In Virginia, the state Supreme Court approved new district boundary lines drawn by a pair of court-appointed special masters, one nominated by each party, after the state’s new redistricting commission failed to reach consensus.
The influence of state courts is hardly new — courts in states like Florida, Virginia, Pennsylvania and North Carolina ordered new congressional or legislative district boundaries in recent years after disputes over the last decade’s series of maps.
But their importance has grown this decade, after the U.S. Supreme Court effectively took the federal judiciary out of the business of judging the constitutionality or legality of partisan gerrymandering in a critical 2019 decision.
In that decision, Rucho v. Common Cause, Chief Justice John Roberts effectively laid the responsibility for judging a gerrymandered map at the feet of state courts.
“In his opinion, Justice Roberts mentioned state courts as an avenue for addressing partisan gerrymandering,” said Rebecca Green, co-director of the Election Law Program at William & Mary Law School.
Republicans are challenging Democratic-friendly remaps in New Jersey and Maryland. Democrats are taking Republican remaps to court in North Carolina; a group of Black Democrats is challenging Michigan’s new redistricting commission, which they say dilutes the power of Black voters in and around Detroit.
Lawsuits are also pending in Minnesota, Wisconsin and Pennsylvania, which have not finalized their redistricting plans, as well as in Idaho and Alaska, where plaintiffs are challenging other lines.
“Plaintiffs challenging these things may find state courts may be more amenable to these suits,” said Joshua Douglas, an election law expert at the University of Kentucky’s Rosenberg College of Law. “They know that the courts are not favorable given the huge number of Trump appointees that have reshaped the federal courts.”
Attorneys backing each party can still use federal courts to challenge redistricting decisions on certain grounds, including potential violations of the Voting Rights Act. Cases are pending in South Carolina, Georgia, Alabama, Arkansas, Montana, Virginia and Louisiana.
But when it comes to questions of partisan gerrymandering that are now outside the scope of federal courts, state courts now provide the best avenues for a legal challenge.
“State constitutions have hooks that the federal constitution doesn’t have to allow plaintiffs to challenge maps on partisan grounds. For example, they have clauses that require elections be free and fair,” Green said. “They also have, in some cases, different formulations of the First Amendment that make it easier to make a case based on the freedom of association.”
About half the states have clauses in their constitutions that require elections to be free and equal, Douglas said. Though it is up to the respective courts to decide what that language means, some of the lawsuits argue that maps that unduly advantage one party over the other lead to inherently unequal elections.
“In those states, there’s a viable path to make a claim against those maps,” Douglas said. “It’s a renewed attention to and a renewed elocution of the theory of state constitutions being used to protect the right to vote.”
The shift in focus from federal courts to state courts has not been lost on either Democratic or Republican groups that aim to influence the redistricting process, said Douglas Keith, an attorney at the Brennan Center for Justice’s Democracy Program. Spending on state Supreme Court elections has risen dramatically in recent years, especially in states where the winning justice will eventually have a say over district lines.
“We have seen groups both on the right and the left in recent cycles state that they are getting involved in judicial elections because of the importance of these courts when it comes to the redistricting fights in this election cycle,” Keith said. “They outright said we are getting more involved in these fights because the courts are going to play a big role in redistricting.”
He pointed to a recent election in Wisconsin, where former Attorney General Eric HolderEric Himpton HolderMichigan Republicans sue over US House district lines State courts become battlegrounds in redistricting fights New Hampshire Republicans advance map with substantially redrawn districts MORE, who now heads the National Democratic Redistricting Committee, campaigned for the Democratic-backed candidate. At the same time, the Republican State Leadership Committee has been the most significant outside player on behalf of Republican-backed judicial candidates.