After New York state's top court this week crushed Democratic hopes of coming out ahead in this decade's redistricting cycle, the party faces an increasingly precarious legal environment in the hyper-partisan battle over drawing legislative lines.
New York's Court of Appeals on Wednesday overturned a map that Democrats muscled through the state legislature there, deciding that a nonpartisan expert will instead draw the lines for the state's 26 congressional districts. It was at least the fifth time this cycle a state court has ruled that maps drawn by its state legislature were too partisan, with a Democratic map in Maryland also falling and Republican-drawn ones in Kansas, North Carolina and Ohio being tossed out as well.
Still, Republicans are favored to win state Supreme Court races in North Carolina and Ohio in November that'd enable those GOP-controlled legislatures to implement more partisan maps before 2024. In contrast, the 4-3 New York decision came from a court appointed entirely by Democrats, a party that now finds itself bound to a bipartisan process written into the state's constitution.
“Democratic judges are not really as inclined to excuse extreme partisan gerrymandering as Republican ones are,” said Lakshya Jain, a lecturer at the University of California-Berkeley who writes on redistricting at the website Split Ticket. “Democrats for a long time have been pushing for redistricting reform and anti-gerrymandering legislation,” Jain noted, and that seeps into their judges' preferences.
The biggest test of this potential legal asymmetry comes in Florida, where Democrats and civil rights groups are challenging a congressional map that Republican Gov. Ron DeSantis pushed through the GOP-controlled legislature there. Legislators had initially balked at the map, which aggressively favors their party, because it dismantles two plurality-Black districts in possible violation of the state's Fair Districts Amendment, which requires lawmakers to draw districts that let racial and linguistic minorities pick their chosen representatives.
Republicans insist they've followed the law in Florida, though many legal experts disagree.
“This is not a difficult legal question,” said Douglas Spencer, a law professor at the University of Colorado-Boulder. “It would be a complete abdication of the rule of law if they take the most gerrymandered map in American history and let it stand.”
Spencer said he's optimistic Florida's state supreme court will ultimately strike down the map but notes he's in a minority among redistricting experts. That's because six of the seven members of the state supreme court were appointed by Republican governors.
Democrats began the once-a-decade redistricting cycle anxiously, with Republicans in control of drawing vastly more congressional seats. That's due to a combination of GOP success in state elections and that Democrats' reform push has led them to cede line-drawing power to independent commissions in states they control, like Colorado.
But Democrats were relatively successful, shifting the typical House seat close to President Joe Biden’s five-point margin of victory in 2020. Until the end of the New York and Florida litigation, it's impossible to precisely evaluate how the party did, but it's likely the map will still lean more toward Democrats than after 2010, when Republicans used their statehouse dominance to try to lock in a House majority through partisan maps. But much of Democrats' gains came in New York, the most populous state where the party controlled line-drawing and one where it stood to net as many as four House seats in its partisan map.
The recent flurry of state court actions are due to a legal ruling at the tail end of the last redistricting cycle. In 2019, the U.S. Supreme Court's conservative majority ruled that federal courts have no role in policing partisan gerrymanders, or maps drawn explicitly to benefit one party by contorting lines to capture enough of its voters to reliably win elections.
That kicked redistricting litigation into state courts. “State courts have in a lot of ways been the hero this cycle,” said Michael Li of the Brennan Center for Social Justice, which argues against gerrymandering and for redistricting reform.
But Li noted state courts have vulnerabilities that the federal system doesn't have. The composition of many state courts change from election to election, making rulings in places like North Carolina and Ohio dependent on whichever party has the political winds at its back in November. State courts are also uneven — in some states such as New York they aggressively strike down gerrymanders, while in places like Texas, the state supreme court is so conservative that civil rights groups have routinely not even bothered to ask it for help, instead going to federal courts to challenge maps drawn by the GOP-controlled legislature in recent decades.
There's even more uncertainty over the legal landscape of redistricting this cycle because the conservative majority on the U.S. Supreme Court has indicated it may rewrite the rules that govern the drawing of legislative districts. In February, conservatives on the court said they may revise the standards on how to draw districts that comply with the Voting Right Act's requirement that minorities get a chance to choose their own representatives and are not simply scattered among voters of other races. And in March, four conservative justices indicated they wanted to consider Republican lawyers' arguments that only state legislatures — and not state courts — have the say in drawing congressional maps.
Still, redistricting reformers said they remain heartened by how courts performed in this cycle so far. Suzanne Almeida of Common Cause, a frequent litigant opposing gerrymanders, noted that courts in Republican states like Ohio have joined ones in deep Democratic states like New York in striking down partisan maps.
“If I ran the world," Almeida said, there'd be national standards against gerrymandering to ensure skewed maps in one big state don't tilt the entire congressional map. But a Democratic proposal for just that foundered in Congress earlier this year. So, Almeida said, ”we are taking the wins that we can take."