Redistricting Fights Won’t End This November

Following yesterday’s primaries in New York and Florida, only a handful of U.S. states still have not yet held their primary elections (Delaware, Louisiana, Massachusetts, New Hampshire, and Rhode Island we are looking at you!), which means that voters in most states now have a very good idea who will be on their general election ballots this November.

We know, for example, that after losing her primary last week, Rep. Liz Cheney (R-Wyo.) will not be coming back to Washington for the 118th Congress. We also know that, after an incumbent-versus-incumbent race against Rep. Carolyn Maloney, Rep. Jerrold Nadler is Democrats’ choice for New York’s 12th congressional district for the new congressional session.

Of course, there are still some things that voters do not know about the shape of the 118th Congress and future congresses. That includes how dozens of still-active redistricting lawsuits will play out this year — and whether the congressional and state legislative district maps that were redrawn (and forced to be accepted) after the 2020 Census will still be in place in many states after Election 2022.

Before reviewing the redistricting process and how many congressional and legislative district maps currently are subject to litigation, a reminder about how we got here.

Starting From Scratch Every Decade

Under Article 1, Sections 2 and 9 of the U.S. Constitution, the federal government must conduct a census every 10 years to determine each state’s congressional representation. The last count was conducted in 2020 (though it got going late thanks to the pandemic) and determined the number of seats each state would have in the U.S. House of Representatives for the 2022, 2024, 2026, 2028, and 2030 elections. (There will be another national census in 2030, the results of which will see reapportionment in Congress beginning in in 2032.) State policymakers also use these numbers to set the district lines for seats in their respective statehouses.

As a result of population shifts identified by the 2020 Census, some states, like Colorado and Texas, gained seats. Others, like California and New York, lost them. These states obviously had to redraw their congressional lines, but every 10 years every single state has the opportunity to redraw lines even if they did not gain or lose seats in the House of Representatives.

In many states, the state legislature is in charge of the redistricting process, which automatically makes it a partisan event. If Republicans are in control, they are likely to redraw the districts in their favor, just as Democrats are if they have the majority in a state legislature. In some states, the governor and members of the legislature work together to redraw districts while in others, it might be a board of nonpartisan officials who draw the maps.

No matter who is redrawing the lines, however, it is a highly charged process because the stakes are so high. And when the stakes are high, we know that judicial challenges cannot be far off.

How Many State Legislative And Congressional District Maps Are Being Challenged?

For the 2022 election cycle, the Brennan Center for Justice, a nonpartisan law and policy institute, has been tracking lawsuits challenging state congressional district and legislative district maps. As of mid-August, the Brennan Center counted 72 lawsuits in 26 different states.

While some of this litigation might be frivolous, other cases could have significant consequences. Indeed, many already have.

According to the Brennan Center:

• State or federal courts have ruled that congressional and legislative district maps in six states – Alabama, Louisiana, Maryland, New York, North Carolina, and Ohio – were unconstitutional and needed to be redrawn.

• South Carolina’s statehouse map also was found to be unconstitutional, but courts gave officials there until 2024 to redraw the maps.

• Alaska also will need to redraw its state legislative district maps. (Alaska has only one congressional district so drawing that map was easy!)

With just over two months to go until election day, only 30 of the 72 cases that the Brennan Center is tracking have been decided. That means there is still plenty potential for additional disruption. Litigation is ongoing in several states that are neither reliably Republican or Democrat, including Florida, Georgia, Michigan, Nevada, New Mexico, and Pennsylvania.

Will that litigation impact what happens this fall? To find out, let’s take a look at what has happened in the six states that already have been forced to redraw maps.

What Happens In States Where Congressional Maps Have Been Rejected?

As noted above, six states — Alabama, Louisiana, Maryland, New York, North Carolina, and Ohio — have been required to redraw both their U.S. congressional and legislative district maps. Maryland already has completed that work, and further threats of litigation have been dropped. On May 20, a New York state court approved a new maps drawn by a court-appointed (and neutral) expert. This map is the one that gave us this week’s showdown between Reps. Carolyn Maloney and Jerrold Nadler. These maps will be in effect for this November’s election.

Does that mean leaders in Alabama, Louisiana, North Carolina, and Ohio still have to hurry up and get their maps redrawn by Election Day 2022?

No.

As University of Richmond law professor Henry L. Chambers, Jr. explained, a U.S. Supreme Court ruling issued in February “barred federal courts from requiring states to fix their newly adopted, but unlawful, congressional maps before the 2022 midterm congressional elections.” Read carefully: that ruling applies only to decisions made by federal courts. The Alabama and Louisiana cases were federal lawsuits so those states are off the hook for redrawing their maps this year. State courts ruled against the maps in North Carolina and Ohio.

So then what will happen there?

In Ohio, the state supreme court has ordered the commission in charge of redistricting to redraw maps, but does not expect that work to be done until at least 2023. That means the maps, however they are drawn and finally approved, will not be put to use until at least 2024.

Things are trickier in North Carolina. As the elections website FiveThirtyEight has explained, on March 17, Republicans in the state legislature requested that the U.S. Supreme Court review the state’s redistricting process. Justices on the nation’s highest court initially denied an emergency appeal from state Republicans to overturn the court-drawn map. They later agreed to consider the case, but not until after this year’s election. This fall the U.S. Supreme Court will hear the appeal, which according to PBS News Hour, “could drastically limit state court authority over congressional redistricting” and congressional and presidential elections.

In the meantime, the maps that the GOP opposes will stay in place in North Carolina for at least the 2022 election.

What all of this means is that redistricting litigation will not stop this November.

Redistricting On The Ballot In 2022

While the U.S. Supreme Court will consider the North Carolina GOP’s challenge to its state maps, many of the redistricting lawsuits that will happen post-Election 2022 will occur at the state level. That’s why the two parties are sinking significant funding into the more than 30 states where voters this year will cast ballots for members of their respective state supreme courts.

Last week, Andrew Romeo, a spokesperson for the Republican State Leadership Committee (the GOP committee focused on state races), told Politico, “We are approaching these races through the mindset of how state supreme courts will affect the redistricting process for the next decade … Redistricting is the tip of the spear for our [judicial] strategy.”

It is at the tip of the spear because, as we know, redistricting will determine the shape of congresses to come.

No surprise, then, that the parties are focused on the states where courts have overturned the congressional district maps, including Ohio and North Carolina. In the Buckeye State, for example, the GOP has a 4-3 advantage on the state supreme court, but three seats are on the ballot this year, including the seat of retiring Chief Justice Maureen O’Connor. As Politico explained, although she is a Republican, O’Connor has been a bit of a maverick. She, for example, “repeatedly broke with the other GOP-aligned judges during redistricting litigation this year, striking down both congressional and state legislative maps drawn by Republicans as illegal partisan gerrymanders,” the newspaper reported.

This November, pay attention what happens at the top of the ballot, but if you want to know how redistricting fights will play out in the future, look downballot.