Republicans have repeatedly been obstructed by local courts in their attempts to draw maps that will make it easier for them to win elections. They are trying to eliminate the power of state supreme courts, which can interfere with the politically-charged redistricting process.
Officials from the GOP said that after setbacks in Pennsylvania and North Carolina’s supreme courts, they need to focus more on winning seats for those bodies. Republicans were especially upset in North Carolina where the Democratic majority of the state court blocked a map drawn in the GOP-controlled state legislature that was illegally tilted towards one party. The state court approved the map on Wednesday with three fewer Republican-dominated House seat.
Republican legislators in North Carolina requested the U.S. Supreme Court restore their old map. This would have given them 10 of the 14 House seats and stopped state courts from redrawing the congressional maps.
“If a redistricting procedure more violative to the U.S. Constitution exist, it is difficult to imagine it,” the GOP legislators wrote in an appeal to the Supreme Court. Conservatives hold a 6-3 majority.
As state courts play a more prominent role in the once-a-decade redrawing legislative lines, there is an increase in their appeal and attention to state supreme court races. The process is usually controlled by the legislature, which can manipulate the lines to get as many voters for their party as possible in as many districts they can draw. This process is known as gerrymandering.
Even under the best circumstances, this process can trigger an avalanche in litigation. This has fuelled the intensity of litigation in state courts, as the conservative majority of the U.S. Supreme Court in 2019 ruled that federal courts cannot rule on cases involving partisan gerrymandering. Federal courts are allowed to intervene in cases involving race-based line-drawing. State courts are the last resort for most redistricting legal disputes.
This week, the GOP’s anger at state courts escalated after the Democratic-majority Pennsylvania Supreme Court rejected the recommendation of a lower court to adopt a GOP drafted map that decreased the number of Democratic-leaning House seat despite the fact that Democrats largely cover areas where state population growth is occurring. The high court instead chose a map drawn up by Democratic plaintiffs. It combined two Republican-held seats that were particularly stagnant in population growth.
The North Carolina Supreme Court approved maps drawn by a lower court in compliance with an earlier ruling that had invalidated the state legislature’s congressional map.
Despite Republican criticisms, state courts don’t always rule on partisan lines.
For example, the Republican chief justice of Ohio’s Supreme Court joined three Democrats in repeatedly throwing out maps drawn by the GOP state legislature and redistricting committee as illegal partisan-gerrymanders. A GOP majority Ohio court ordered members of the state map-drawing committee — including Republican Governor. Mike DeWine was summoned to a hearing next week about why they shouldn’t be held in contempt of the Ohio court for drawing maps that aren’t in line with its instructions.
The request of a Republican Governor was rejected by the Florida Supreme Court earlier this month. Ron DeSantis will bless his most controversial feature of the map, which is to dissolve a North Florida district that was drawn to allow Black voters to elect their representatives.
These rulings are one of the reasons this redistricting cycle went better than expected for Democrats. With all large states, except Florida, done with their maps by the party, it has remained fairly even with Republicans despite the fact that the GOP controls line-drawing in more states.
Kelly Ward Burton, executive director at the National Democratic Redistricting Coalition, stated that “we are not winning because of the political natures the supreme court,” “We are winning because Republicans have broken the law.”
The Republican frustration is evident in the filing of the North Carolina appeal. Their lawyers cite a U.S. Constitution provision that states set the rules for elections to Congress. This is similar to the legal argument the GOP used in the days following the 2020 presidential election to limit the count of late-arriving postal ballots in Pennsylvania. Experts say that if the court accepted the argument, it could revolutionize how elections are conducted in America by removing almost all judicial oversight.
Rick Hasen, a University of California-Irvine law professor, said that “it’s a huge issue that hung over 2020 election.” It could be a big case, but it might not be the case that the justices want to use in order to resolve this.”
To address its state court problems, the GOP wants to use traditional political tools. Chris Christie, an ex-Governor of New Jersey, said this week that the Senate race and the top of the ticket for a governor’s race are crucial. You must pay close attention to the Supreme Courts of your elected representatives if you want fair House districts.
Christie argued that Democratic organizations like the NDRC, which focuses on the election of Democratic judges in 22 states with high-court elections, are part the problem. They point out the spending of the organization in North Carolina’s 2018 supreme-court race. The campaign of Democrat Anita Earls was the decisive vote. The group also donated $250,000 to the state Democratic Party which gave Earls $199,000 more.
Over the past decade, Republicans and their allies spent millions on North Carolina Supreme Court elections. The GOP suggested that it might sue to have the new North Carolina maps overturned in federal court. They claim the state courts infringe on federal election control or give Black voters an inordinate amount of weight in line-drawing decisions.
It also plans to contest the supreme court election in this fall when two of the Democratic justices that make up a 4-3 majority will be up for reelection. Maureen O’Connor (chief justice of Ohio), who defied her party’s wishes, has retired and her seat will be up for grabs in November. Republicans claim that if the GOP wins one of the two state races, the Legislature will be able to redraw the state’s maps in 2024.
Christie stated that “These elections for the supreme court of North Carolina and Ohio this fall are extremely important.”
Pennsylvania’s Democrats enjoy a three-justice majority, and there are no upcoming elections for any of the justices. The Republican state legislature tried to limit the court’s powers since 2018 when it ruled that the Legislature had illegally gerrymanded the map last decade to favor the GOP. Pennsylvania legislators have suggested impeachment of the court or other limitations to its power. One state senator introduced a bill this week that would prohibit it from drawing new maps lasting more than two years.
Michael Li, a redistricting expert at the Brennan Center for Justice, New York, said that state courts have become increasingly pivotal in political and electoral battlegrounds, as the conservative majority of the U.S. Supreme Court reverses rights guaranteed by previous court majorities. He cited a number of recent rulings that have weakened the Voting Rights Act, as well as the court’s upcoming abortion case which could overturn Roe v. Wade, which legalized the procedure nationwide.
Li stated that “we may be living in an age in which it’s almost state-by-state, not only in redistricting, but also in a variety of rights.” People are realizing that the world is changing.
