Editor’s Note: David Daley is the author of “Ratf**ked: Why Your Vote Doesn’t Count” and “Unrigged: How Americans Are Battling Back to Save Democracy.” His work has appeared in the New Yorker, New York Times, Atlantic and Washington Post, among other publications. The views expressed in this commentary are his own. View more opinion on CNN.
Wisconsin, North Carolina and Ohio are once some of the most closely contested battleground states. But for more than a decade, extreme gerrymandering in these three states tipped the scales in favor of the Republican Party.
As a result, district maps sent a disproportionate number of Republicans to Washington and often protected lawmakers against significant blue waves.
Our democracy is in dire straits. Earlier this year, a GOP filibuster stalled crucial voting rights laws in Congress while in 2019 a US Supreme Court decision shuttered federal courts to partisan gerrymandering claims, giving state legislatures the green light to take redistricting to extremes.
But state supreme courts have stepped in to curb gerrymandering, becoming a crucial stopgap in championing free and fair elections. And while this redistricting cycle has been a partisan bloodbath, some congressional maps better reflect the nation’s politics, thanks to the work of state courts.
We’ve seen this in battleground states including Wisconsin, North Carolina, Ohio, Pennsylvania, Michigan and Virginia, where state courts – often, though not always, in bipartisan fashion – have struck down aggressive partisan gerrymanders, making the case that they violate the rights of voters under the state constitution.
This is some of the best news to emerge from an otherwise bleak redistricting cycle. The number of competitive districts nationwide has been driven to alarming lows. Many rapidly growing Black and Latino communities have been cracked, packed and diluted in the first redistricting since the US Supreme Court’s 2013 decision in Shelby County v Holder gutted preclearance, a provision under the Voting Rights Act that required states to obtain federal approval before making any changes that affect voting.
Last week, the US Supreme Court struck down Republican requests to block congressional maps in North Carolina and Pennsylvania. While the decisions are a win for democracy in the run-up to the 2022 midterm elections, the Supreme Court could later uphold the legal argument presented in these cases, known as the Independent State Legislature doctrine, which argues that state courts do not have authority over state legislatures when it comes to federal election matters.
Without state courts to step in, many legislatures could continue to warp congressional maps – or pursue election subversion methods – for years to come.
We’ve seen the results of this partisanship for much of the last decade. In 2012, for example, President Barack Obama carried Pennsylvania, Ohio, Michigan, Virginia and Wisconsin to win reelection. But Republicans, in the first election after the GOP’s successful redistricting strategy provided them monopoly power over new district lines, won 47 of 67 US House seats up for grabs, and retained control of the lower chamber even though Democratic candidates won 1.4 million more votes nationwide.
In 2018, Ohio voters overwhelmingly endorsed a state constitutional amendment that established new guardrails on elected officials tasked with drawing maps. But five Republicans on the state redistricting commission ignored those provisions and backed a map in 2022 that ensured the GOP would win at least 12, and potentially 13, of the state’s 15 US House seats.
Gov. Mike DeWine, a Republican commission member who voted for the map, even admitted that the state legislative process could have been “more clearly constitutional.” The state supreme court – with the Republican chief justice joining three Democrats in a 4-3 decision – overturned it as unconstitutional, demanding that lawmakers try again. And when the same commission failed to follow a court order to produce a new state legislative map, the chief justice threatened to hold the governor and the entire panel in contempt.
In North Carolina, where redistricting has become a blood sport as intense as the Duke vs. UNC basketball rivalry, Republicans enacted a congressional map that guaranteed them at least 10, and as many as 11, of the 14 seats in a state where a few races were determined by less than one percentage point in 2020.
The state court, in a 4-3 decision, overturned that map, citing state constitutional protections of free and fair elections, freedom of speech and equal protection. “Achieving partisan advantage incommensurate with a political party’s level of statewide voter support is neither a compelling nor a legitimate governmental interest,” the ruling signed by Associate Justice Robin Hudson read.
Under court order, the legislature produced a more balanced map, with six safe GOP seats, five safe Democratic districts and two battlefields.
In Virginia, the state supreme court protected fair maps after the new redistricting commission broke down over partisan bitterness.
In Wisconsin and Pennsylvania, meanwhile, state courts proved effective (if imperfect) adjudicators in creating compromise maps in states with Democratic governors and Republican controlled legislatures. And with only five seats separating the two parties in the US House, maps that better reflect the partisan balance of the people will go a long way toward preventing minority rule in the House.
State courts are not a panacea to cure the effects of gerrymandering. Only 30 state constitutions protect free and fair elections; New York, for example, lacks that extra safeguard, which will make it difficult to undo an intense Democratic gerrymander. And while one Republican justice in Wisconsin and Ohio did join with Democratic colleagues in defense of a fair process, conservative judges have generally taken a narrower view of those free and fair election clauses, and in North Carolina, even found the Rucho decision should make gerrymandering claims nonjusticiable – a case the court cannot hear – period.
That leaves little hope for voters to challenge egregious gerrymanders in Texas, Oklahoma, Utah, Indiana, Tennessee and Arkansas. The lack of federal standards, the abeyance by federal courts, and the growing partisanship of state courts creates a dramatically uneven playing field.
Naturally, the crucial role state courts have played has also not gone unnoticed by partisans eager to retain control over the process. Since former President Donald Trump and his allies tried to overturn the 2020 election, there’s been greater attention paid to state secretary of state races.
What hasn’t gotten enough attention is the battle over state supreme courts. According to a Brennan Center report, big donors and interest groups poured more than $100 million into state supreme court races during the 2019-2020 cycle as these down-ballot and often sleepy races became more central to partisan control.
That’s likely to be only the beginning of the fight. The ugly truth is that the state of democracy could depend less on the will of the people and more on the results of judicial contests that are often held in off-years.
In Ohio, where Republicans tend to win statewide elections, the legislature decided to add partisan affiliation to judicial elections this year. In Pennsylvania, where the state supreme court also overturned a gerrymandered congressional map in 2018 and batted aside baseless claims of voter fraud in 2020, Republicans have pushed a constitutional amendment to elect judges by districts, not statewide, which would favor the GOP.
Pennsylvania state lawmakers also tried, but failed, to impeach the justices who struck down a gerrymandered congressional map that favored Republicans. North Carolina’s fight over redistricting also sets up an intense showdown this fall, when two seats on the state supreme court – and partisan control – will be on the ballot.
The US Supreme Court, meanwhile, could upend this entire dynamic between state courts and legislatures. Four of the Supreme Court justices have signaled an openness to the controversial Independent State Legislative doctrine.
Because state courts and governors are not the legislature, at its most extreme interpretation, this doctrine hands unilateral control to state lawmakers with no ability for a court to undo their work. This would mark a seismic shift of power that could remake the very nature of judicial checks and balances, let alone the nature of a state constitution. It also goes against decades of precedent and is dangerously anti-democratic.
While the Court this week rebuffed an invitation from North Carolina and Pennsylvania Republicans to intervene with the state court-ordered maps, three justices did sign onto an opinion that called this notion “an exceptionally important and recurring question of constitutional law.”
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A fourth justice, Brett Kavanaugh, who previously questioned the state courts’ jurisdiction, suggested that the Supreme Court take on these questions in a future term.
State courts have made a critical contribution to ensuring that the 2022 elections will be conducted on fair maps. After that? The very rulebook our elections have followed in modern times could ride on the decisions of Justices John Roberts and Amy Coney Barrett.