A recent unusual ruling North Carolina’s highest court has turned the spotlight on the patchwork of state laws and court decisions that determine where voting district maps can be drawn to make elections less competitive and make certain political parties more likely to to win.
The practice is known as partisan gerrymandering, which courts have found both Republicans and Democrats have deployed when they had control of redistricting.
In 2019, ruled the conservative majority of the US Supreme Court that partisan gerrymandering cases are “outside the reach of the federal courts,” moving the issue to state courts. And national reform efforts have so far failed. In the last Congress, a Republican in the Senate repeatedly filibustered locked Democratic-led voting rights legislation that would have included a ban on partisan gerrymandering.
That has left a state-by-state struggle over how far partisan politics can push the redrawing of voting maps after the 2020 census. In some states, independent redistricting commissions they have made the process less partisan by taking it out of the hands of politicians. But in others, map-making by partisan lawmakers has ultimately involved legal battles over claims of partisan gerrymandering.
“In some states, you can get away with it. In some states, you can’t,” says Michael Li, senior attorney at the Brennan Center for Justice at New York University School of Law, which defend the partisan bans on gerrymandering that were. part of the voting rights bills in Congress. “While you might be able to partisan gerrymander to your heart’s content in Texas, you can’t in New York. And that’s a very uneven playing field.”
How voting district lines might be drawn in your state depends largely on who sits on the courts in your state, what your state constitution says, and how the courts interpret and apply those words.
Which state constitutions have language that prohibits partisan gerrymandering?
Although some states have statutes against partisan gerrymandering, more than half a dozen states have constitutions with some form of explicit language against favoring a political party when redrawing voting districts, including California, Colorado, Florida, Hawaii, Michigan, New York, Ohio and Washington, according to the National Conference of State Legislatures.
Absent explicit prohibitions, there are also states with other kinds of constitutional language that could protect voters from partisan gerrymandering, says Jonathan Cervas, a redistricting expert and postdoctoral fellow at Carnegie University’s Institute for Policy and Strategy Mellon, who recently redesigned New York’s congressional maps. as a special master appointed after the courts he threw maps that were manipulated by the Democrats.
“This could be considered what I would call indirect language, where there are protections in state constitutions that are not related to partisan gerrymandering per se, but are directly related to the right to vote,” explains Cervas, who has essay on the role of state courts by limiting partisan gerrymandering.
This type of state constitutional language often requires elections to be “free,” “free and equal,” or “free and open,” and is part of the founding documents of more than two dozen states, according to the NCSL.
But whether any constitutional language has been used to stop partisan gerrymandering “depends on whether the state court where you live is willing to protect your rights,” Cervas adds.
Where have state courts thrown out voting maps because they were found to favor one party?
In recent years, states where courts have rejected voting maps in partisan gerrymander cases include Alaska, Maryland, New York, Ohio and Pennsylvania. There are also pending cases before the state supreme courts in New Mexico and Utah.
State courts have become battleground for partisan gerrymandering after US Supreme Court landmark 2019 judgment in the case known as Rucho v. Common Cause.
“For several decades, the people of the states had held out hope that the Supreme Court would establish a standard for finding that partisan gerrymandering had occurred and possibly overturn maps where this type of voter fraud had occurred,” says Kathay Feng, vice president of programs at Common Cause, the advocacy group that has also helped lead the ongoing case against a North Carolina congressional map approved by Republican state lawmakers.
But the nation’s highest court ruled that federal courts cannot review claims of partisan gerrymandering because, in the words of Chief Justice John Roberts’ conservative majority opinion, the U.S. Constitution lacks a ” fair districts”.
“Provisions of state statutes and state constitutions can provide standards and guidance for state courts to apply,” Roberts added.
“After the Rucho decision, people asked me if I was depressed or not, and I said, ‘No, disappointed but not depressed,’ because there was a lot going on in the States,” says Li, the Brennan Center attorney. , which adds that states are “laboratories of democracy” where there have been efforts to create more independent redistricting commissions and state constitutional prohibitions on partisan gerrymandering.
Still, Li points out that states can also be “laboratories for not protecting democracy.”
“Ultimately, there has to be some kind of federal remedy, because the reality is that while state courts can do a lot, state courts aren’t going to be willing to step in everywhere,” Li says. “Texas and Florida are excellent examples of places where state courts are unlikely to control maps drawn really aggressively.”
Why was the recent North Carolina Supreme Court ruling so unusual?
After a judicial election, states where courts are likely to intervene in partisan gerrymandering may, however, move to the other end of the spectrum.
Take North Carolina, for example. In 2022, the state’s highest court, under a Democratic majority, struck down a congressional map approved by Republican state lawmakers as a partisan gerrymander that violated several provisions of the North Carolina constitution, including “All the elections will be free.”
But after Republican justices took over the North Carolina Supreme Court majority after last year’s midterm elections, the court made the unusual move to hear the case again this year on request of Republican legislators. The judges in short reversed the court’s earlier decision.
In the majority opinion, North Carolina Supreme Court Chief Justice Paul Newby, a Republican, wrote that “creating partisan redistricting standards is fraught with political decisions,” which “belong to the legislative branch, not to the judiciary.”
North Carolina’s US House delegation is currently split, with seven Democrats and seven Republicans. Under the new ruling, GOP state lawmakers could redraw the congressional map to favor Republicans in a closely divided state.
And for many redistricting watchers, the reversal on the North Carolina court is another stark reminder that elections for state judges matter.
“I think everyone is aware of the fact that the facts didn’t change. And the only thing that changed was an election, which changed who was in control of the court,” says Theodore Shaw, law professor and director of the Court . University of North Carolina Center for Civil Rights. “Courts don’t consider themselves political, but politics counts for change in this court and for undoing what it decided quite recently.”
How could the US Supreme Court make it harder to limit partisan gerrymandering again?
This North Carolina redistricting case, which has been appealed to the United States Supreme Court as Moore v. Harper, also has national implications that could undo the ability of any state court to review congressional maps passed by state legislatures.
North Carolina’s GOP state lawmakers are asking the nation’s highest court to back a once-fringe idea that the U.S. Constitution gives state legislatures special power to control how congressional elections are conducted which cannot be checked or balanced by state constitutions or state courts.
Known as the “theory of the independent state legislature“, the ruling could end one of the main remedies to partisan gerrymandering in congressional maps approved by the Legislature that the US Supreme Court had suggested in its ruling in Rucho: suing in state courts.
Cervas, the Carnegie Mellon redistricting expert, worries that the U.S. Supreme Court’s support for some version of the theory could leave voters with no way to “protect themselves from governments that will create redistricting plans districts that are on the verge of diminishing people’s votes.” a political party”.
The North Carolina Supreme Court’s decision to rehear the case at the state level and annul his sentence has raised the possibility that the country’s high court may soon dismiss the case.
But a similar case on the theory, brought by Republican state lawmakers in Ohio, is awaiting the justices’ decision on whether to hear it.
edited by Benjamin Swasey
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