Court Fights Over Redistricting Draw Cries of Partisanship

The battle for control of the House of Representatives and state legislatures next year may well come down not to who does the campaigning. It’s more about who’s doing the drawing.

Nearly four years after the 2020 Census and the ensuing redistricting of state legislative and congressional districts, court battles over district lines are still waging. In the case of the House, the new and still-disputed lines have an impact on as many as 13 congressional districts – more than half of the 25 seats the nonpartisan Cook Political Report considers toss-ups next year and more than double the five seats Democrats would need to flip to regain control of the chamber.

And while past fights over gerrymandered districts have been largely contained to state legislators, the current battles have drawn in the courts as well, leading to charges of partisan bias by members of the judicial branch.

In Alabama, Louisiana and Georgia, congressional and some state legislative lines are being redrawn to comply with the Voting Rights Act, which prohibits the deliberate disenfranchisement of minority voters through gerrymandering. Florida and South Carolina may also join that list, depending on the outcome of litigation.

In New York, Wisconsin and North Carolina, the states’ courts have become major players in the partisan redistricting fights. And since in all three cases the rulings have changed as the makeup of the courts has changed, political players are claiming that the jurists are tipping the scales in their ideological favor.

“It’s the height of absurdity to say that the chaos that is being engendered by this decision is something that’s desired by the public,” says former GOP Rep. John Faso of New York, complaining about a recent state court of appeals ruling that is widely expected to result in a Democratic-drawn map for congressional districts.

New York’s redistricting saga goes back to 2022, when a bipartisan redistricting commission – created by a state constitutional amendment – deadlocked, sending the task to the Democratic-controlled state legislature.

Democrats drew a map to their favor, and Republicans sued, successfully forcing a new map drawn by a special master. That competitive map allowed the GOP to pick up four congressional seats in deep-blue New York that year.

Democratic-backed groups sued again, to return the process to the redistricting commission. This time, the court of appeals – with a new, more liberal chief justice – ruled in favor of the plaintiffs. Any map the commission creates must be approved by the Democratic-run legislature, and if the commission is again deadlocked – as is widely expected – the legislature gets to draw its own map.

The new map could net Democrats as many as six seats next year, analysts predict.

“The fix was in,” Faso says.

In Wisconsin, meanwhile, Republicans had won a series of court battles that ended up with a map for state legislative seats that critics said was egregiously gerrymandered, including districts that were not contiguous. But the state Supreme Court, with a conservative majority, would not order new lines drawn.

That changed when a liberal judge, Janet Protasiewicz, won election to the state’s highest court by an upset, 11 percentage point margin. The day after Protasiewicz was sworn in, a liberal group sued again, and last Friday, the newly constituted court ordered new lines to be drawn.

Currently, Republicans hold about two-thirds of state legislative seats in a state that is evenly divided between the two parties (Wisconsin has a Democratic and Republican U.S. senator, and its governor, Tony Evers, is a Democrat). The new map will also have implications for the next round of redistricting for state legislative and congressional seats after the 2030 Census.

“If you look at the population, look at statewide races, it’s pretty evenly split,” says Jonathan Miller, chief program officer for the Public Rights Project, which filed an amicus brief in the case. “To have a supermajority in one party of the legislature is indicative of an incredibly skewed map.”

In North Carolina, a state Supreme Court controlled by Democratic jurists ruled in 2022 that the GOP-controlled state legislature could not draw state legislative and congressional lines with partisan gerrymandering.

Then, Republicans flipped seats on the high court, gaining a majority. That court reversed itself in April of this year, allowing the partisan gerrymander to go forward. That is expected to net Republicans three more seats in the House, unless a new lawsuit (based on accusations of Voting Rights Act violations) succeeds and forces the drawing of yet another map.

The Voting Rights Act cases involving Alabama and Louisiana – where courts have ordered a new district be drawn to ensure Black voting power – are likely to result in single-seat pickups for Democrats in each state.

In Georgia, Republican state lawmakers were ordered to draw a new district but, in doing so, eliminated another seat now held by Democratic Rep. Lucy McBath. A federal judge on Thursday upheld that map, meaning Republicans most likely will retain their advantage in the congressional delegation despite having lost the Voting Rights Act challenge.

The U.S. Supreme Court is expected to rule soon on a case out of South Carolina, where Republicans state lawmakers said their GOP-friendly district lines were driven not by race but by politics. The Supreme Court has ruled that it is up to states to decide whether or not to ban partisan gerrymandering, but plaintiffs suing in South Carolina say the lines violate the Voting Rights Act.

A win there could give Democrats a chance for a pickup of a single seat. In Florida, Democrats and Republicans are fighting in the courts over whether the congressional district lines (which remained in place for the 2022 election and resulted in the loss of a Democratic congressman) violate the state constitution’s protections for minority voters.

Certain Southern states once had to undergo “pre-clearance” of their redistricting maps, getting advance court approval to assure the lines were not disenfranchising minority voters. But in 2013, the Supreme Court took away the pre-clearance requirement, meaning litigants have to wait for the district lines to be drawn and then challenge them.

“It has created the same kind of cat-and-mouse game, where legislators claim they’re complying, but not really,” says Kareem Crayton, a redistricting expert with the Brennan Center for Justice.

“It’s frustrating to the plaintiffs, but it’s also frustrating to elections,” Crayton adds. “Every day a map isn’t drawn is a day when voters are subjected to having less representation than the law would demand.”