Republicans are threatening to eliminate the remaining avenues available to anyone who wants to challenge partisan gerrymandering and racially discriminatory redistricting, now that they see a friendly six-vote conservative supermajority on the Supreme Court.
These new GOP-backed challenges come after the Supreme Court gutted the key Section 5 of the Voting Rights Act in its 2013 Shelby County v. Holder decision. Section 5 had required states and jurisdictions with a record of racial bias to get advance approval for district maps and certain election laws. In 2019, the Supreme Court also ruled that federal courts have no say on partisan gerrymandering claims in its Rucho v. Common Cause decision.
The current redistricting process is the first since the court handed down those two decisions. Litigants have seen some success in federal district and appeals courts in challenging racially discriminatory maps under Section 2 of the Voting Rights Act, as opposed to the now neutered Section 5. Both Democrats and Republicans are also seeing success in their challenges to partisan gerrymandering, now filed in state courts after the Supreme Court removed federal courts from the equation.
But both of these avenues for legal relief will disappear if the GOP is successful in removing all obstacles to partisan and racial gerrymandering.
“The response has been an unprecedented number of appeals to the Supreme Court to say, ‘Can you undo what they’ve done below?’” said Abha Khanna, a partner at the Elias Law Group, the primary election law firm for the Democratic Party and aligned groups. “Their best defense right now is for those who decide what the law is to change the law.”
The Move To State Courts
In Rucho v. Common Cause, the Supreme Court’s conservative justices ruled that federal courts are not the place to police claims of partisan gerrymandering in redistricting.
“Provisions in state statutes and state constitutions can provide standards and guidance for state courts to apply,” Chief Justice John Roberts wrote in the decision.
The result has been an avalanche of challenges to partisan maps in state courts across the country. Courts have already ruled that maps drawn by Republicans in Ohio and North Carolina, and by Democrats in Maryland, amounted to unlawful partisan gerrymanders. Meanwhile, a map drawn by Democrats in New York was struck down by a Republican trial court judge, and is now on hold as the decision is being appealed.
“The state Supreme Courts have been pretty good in trying to police partisan gerrymandering,” said Paul Smith, senior vice president at the Campaign Legal Center, a nonprofit that has been engaged in litigation challenging certain maps as overly partisan.
In Maryland, none of the eight districts drawn by Democrats in their original map favored Republicans. After the state supreme court tossed the map, the legislature adopted a new map that adds one GOP seat and dilutes the Democratic lean of two more seats.
The congressional map still being debated in the New York courts features 22 Democratic seats and just four GOP seats, half the current number of GOP-held seats. Republicans argue that the maps drawn by the state legislature and signed by Gov. Kathy Hochul (D) violate a 2014 amendment to the state Constitution barring partisan gerrymandering.
But in North Carolina, Republicans want to make the GOP challenge to New York’s maps impossible. There, the state Supreme Court tossed out the congressional map drawn by Republicans and drew a new map not so heavily tilted to favor the GOP.
Republicans then filed an emergency application with the U.S. Supreme Court arguing that the U.S. Constitution forbids state courts from adjudicating redistricting cases or any other matter related to election law. If adopted, this legal argument, known as the independent state legislature doctrine, would cut the final remedy for partisan gerrymandering ― state courts ― out of the process, leaving no recourse for the enforcement of laws or constitutional provisions forbidding excessively partisan maps.
The court rejected the application by North Carolina Republicans on March 7, but at least four conservative justices want the court to hear full arguments on the independent state legislature doctrine.
“We will have to resolve this question sooner or later, and the sooner we do so, the better,” Supreme Court Justice Samuel Alito wrote in a dissent joined by Justices Clarence Thomas and Neil Gorsuch.
Justice Brett Kavanaugh rejected the North Carolina GOP’s appeal, but called for the court to “carefully consider and decide the issue next Term after full briefing and oral argument.”
The push to strip state courts of their power to adjudicate redistricting disputes highlights a contradiction for the GOP as the party relies on state courts in Maryland and New York to attain fairer maps. North Carolina Republicans recently filed a cert petition with the court to take up the case for a full hearing.
“The justices have signaled they really want to hear that kind of case,” said Michael Li, senior counsel with the Brennan Center for Justice, a nonprofit that supports voting rights and fair redistricting. “There are a lot of things that were Hail Mary-type arguments that may not be so Hail Mary with this court.”
‘Republicans Think That This Is Open Season’
Even more long-shot arguments are bubbling up to the Supreme Court in cases related to the applicability of the Voting Rights Act to redistricting.
In these cases, Republicans are now trying to get the Supreme Court to gut Section 2 of the VRA, which allows for challenges to election laws and district maps if they negatively affect minority voting or representation after their adoption.
“The law will look different when we emerge from this redistricting cycle than when we began, in terms of what kind of race-based remedies there are,” Li said.
A case coming from Alabama, which the court took up for argument in February, could upend voting rights enforcement. A three-judge federal district court found that a congressional district map devised by the state government ― which is Republican-dominated and majority-white ― violated the Voting Rights Act by diluting the Black vote. The map splits Alabama into six heavily GOP and majority-white districts and just one majority-Black district, though Black people account for 27% of Alabama’s population.
The district court ordered Alabama to draw a second majority-Black congressional district to provide adequate representation. The case is a “textbook” violation of Section 2 of the Voting Rights Act, according to Khanna, the Elias Law Group partner.
But the Supreme Court, in a 5-4 vote on Feb. 9, overruled the district court’s judgment for changing district lines too close to the state’s primary election on May 24, and took up the case for a full hearing next term in November.
“It’s hard to know what the court is going to do,” said Stuart Naifeh, who has been involved in the Alabama litigation as manager of the redistricting project at the NAACP Legal Defense & Educational Fund. “Our view is, it’s a straightforward application of Section 2 law as it has been for four decades.”
While Naifeh and Khanna believe the court could still rule to affirm the district court’s decision in the Alabama case, others are not so hopeful.
“They’re going to take Section 2 down as a redistricting matter in this Alabama case,” Smith said. “It would mean that [in] states where there’s high degrees of racial polarization in voting and a white majority, there’s no longer an obligation to identify places to creating Black-majority districts.”
Such a result would affect not only Alabama but also Louisiana, where the Republican legislature drew a six-seat map with just one majority-Black district despite Black people accounting for nearly a third of the state’s population. And it could affect states like Georgia and Texas, where booming minority populations have not led to increased representation in new maps drawn by GOP legislatures.
“If there’s no VRA liability on the facts and circumstances in Alabama, it’s hard to see it anywhere,” Li said.
As the court waits to hear the full Alabama case, litigants are still relying on Section 2 to challenge maps alleged to deny equal representation to Black and Latino communities, such as maps drawn by Republicans in Texas.
The new Texas map provided no new representation to Black, Latino or Asian voters, although the growth of these communities accounted for 95% of the state’s new population growth that netted it two additional congressional seats from the 2020 Census. Instead, the map cut the number of Latino seats from eight to seven and drew the two new seats to be majority-white.
Voters in the state are challenging the map under Section 2, but Republicans are firing back by making wild new arguments in court briefs aimed at further destroying the Voting Rights Act. The Texas GOP argues that Section 2 does not apply to redistricting at all, and that there is no private right of action to enforce Section 2. That would mean that no individual voter or private group could bring challenges under the law.
A district court judge in Arkansas already ruled in a case this year that there is no private right of action under Section 2. That case is now on appeal and possibly headed toward the Supreme Court.
“It shows you that Republicans think that this is open season and no argument is too crazy to try, because the court may take it,” Li said.