In one of the most important political developments of our time, top state and federal courts across America are rejecting extreme redistricting, or gerrymandering, which is an insidious form of political segregation.
After the 2010 Census, GOP leaders drew maps sorting their state's most reliable voters into congressional and state legislative districts. Political consultants, mostly Republicans, segregated reliable voters by race and party affiliation. Cynically, they created these maps to ensure that GOP candidates would get winning margins and supermajority rule in otherwise purple states.
Extreme gerrymandering has been the foremost reason Republicans have had a U.S. House majority this decade. It’s why the GOP has had legislative monopolies in numerous states such as Pennsylvania, North Carolina, Wisconsin, and Ohio, where after gaining a lock on political power, they imposed a catalog of right-wing policies.
But as 2018 begins, there have been a series of state and federal court rulings in redistricting cases that are akin to referees throwing the flag for dirty play. Segregating voters by race is already illegal, while sorting voters by party affiliation is increasingly being ruled illegal. The open question, as the Supreme Court will rule later this spring on partisan gerrymandering, is, will the 2018 midterm elections be widely affected? Or will the 2020 election cycle be the soonest that new and more equitable political maps will emerge?
Right now, it doesn’t appear Democrats will gain much of a boost in 2018's elections. Dems need 24 more seats to retake the House. In short, most of the legal fights will not be resolved in time to get new maps into play before the 2018 season is underway.
“The actual marginal partisan seat gain/loss isn't the frame I'd choose to describe what's going on (though I certainly understand why it's a frame others adopt),” Justin Levitt, an election law and redistricting expert at Loyola Law School, wrote in an email. "To use a sports analogy, there may be reasons for an in-game penalty/fine/suspension structure for flagrant fouls that are worthwhile even if they don't meaningfully change the in-game win probability, and that are certainly worthwhile even if they don't actually change the final win/loss result.”
In other words—with the possible exception of Pennsylvania's congressional districts—the gerrymander cases and rulings are more likely to be a persistent reminder in the court of public opinion, though not legal opinion, that the GOP will pursue any tactic to win elections, as opposed to being a gamechanger in 2018's swing states.
“I think that at this point, the only congressional map likely to get redrawn in time for the 2018 elections is Pennsylvania—and I think it's very likely to be redrawn for 2018,” Levitt said. “There's an infinitesimal chance in Maryland [the only case where Democrats abused the process], and North Carolina, and also Texas, that the maps are redrawn for 2018... but by delaying the resolution of the cases, the Supreme Court essentially punted to 2020.”
This week, Pennsylvania’s Supreme Court ruled that its 18 House districts (13 are held by the GOP) are a partisan gerrymander that “clearly, plainly and palpably” violate the state’s constitution. Two weeks earlier, a federal appeals court reaffirmed that North Carolina’s 13 House districts are also a hyper-partisan gerrymander (10 are held by the GOP). That ruling was quickly appealed to the U.S. Supreme Court, which delayed it from being implemented. The High Court’s action means the state’s pro-GOP political map (redrawn and then rejected by the appeals court) will remain in place for 2018.
“Yup,” Levitt said. “It's likely that the existing 2016 ‘remedial' maps will be the maps for the 2018 elections.”
The Court has reviewed more gerrymandering cases in recent years than it has in decades. These began with segregating voters by race, which is illegal. The Court ruled the GOP had created illegal maps in North Carolina, Texas and Alabama using voters' race to "crack and pack" districts. The justices ordered the states to redo their maps. The Republicans did, but barely changed the resulting representation, prompting more litigation from Democrats crying foul.
Extreme partisan redistricting is a new issue before the Court. Starting with a Wisconsin case heard last fall, it has been considering what is a fair way to measure extreme partisanship. A legal team headed by Nicholas Stephanopoulos, a professor at the University of Chicago Law School, came up with measuring “wasted votes.” While Chief Justice John Roberts openly ridiculed that modeling, there was speculation that the Court will issue a standard to measure excessive partisanship. That’s because it also took a GOP appeal over Maryland’s Democratic-led gerrymander of one House seat, suggesting it will chasten both parties.
What sets Pennsylvania apart is that its state Supreme Court ruled against the GOP based on the state constitution. As Levitt explained, the separation of state and federal oversight of elections has deep precedents. The U.S. Constitution says the states are to oversee elections. That won’t stop the GOP from appealing the Pennsylvania Supreme Court ruling, which includes an expedited timetable to redraw maps in time for its 2018 primaries. But it does make it unlikely the Supreme Court will step in.
Levitt believes the GOP will try to block Pennsylvania. “I expect them to ask the Supreme Court for a stay, and then I expect them to ask the Supreme Court for cert [to take the appeal]. From their perspective, there's no downside in the attempt. … I think it's exceedingly unlikely to work. I know the political consequences aren't quite as stark, but Supreme Court intervention in the Pennsylvania state case would actually be a bigger legal grenade than Bush v. Gore” [the 2000 Supreme Court ruling that stopped a presidential recount in Florida, making George W. Bush president].
Levitt said that every state legislature could quickly redraw their U.S. House and state districts, if they had the political will.
“How long does it take a motivated legislature? Each legislature generally has a bunch of maps in their back pocket. If a decision doesn't seriously cabin [restrict] their authority, they could turn out a new map in 24 hours,” he said. “If a decision did seriously cabin their authority, taking them by surprise, that'd take longer—but if a legislature were so motivated, there’s no question that they could be working on a variety of scenarios now, to have several contingency plans, one of which they'd be able to put in place the day after a ruling.”
But that would mean ceding power, which Levitt said partisans are loath to do.
“The legislature is motivated to do exactly the opposite,” he said. “Delaying is absolutely a partisan tactic by the legislatures in question. And though I don't think this is why they ruled as they did, the Supreme Court's decisions to press pause (to stay the drawing of new maps, or to decline to expedite some of the other cases, or to take Maryland, and hold Wisconsin for Maryland, which is almost certainly what will happen) has a bunch of impacts, including partisan ones.”
These delays mean we will not see many new political maps emerge in 2018.
“I think that delay has already happened,” Levitt said. “I think the chances of relief in 2018 are slim for everything other than Pennsylvania. It's not just the general election; it's the filing deadline for the primary, followed by the primary, followed by the general election—and courts hate messing with the timing of those elections. It's also that the legislature usually gets first crack at a relief map, and then there's a fight about that map (witness North Carolina).”
“That's all part of the reason why the Pennsylvania state court order has things on such a tight pace,” he continued. “They gave the Pennsylvania legislature three weeks to draw a new map, and essentially said that they'd make up their mind about that map, or implement their own, four days after receiving it. That's lightning pace, and the reason for the lightning pace is to align the new map more or less with the primary election schedule that's already in place.”