Lawsuits too late for Nov. elections
Battles on district lines take years to play out
WASHINGTON — The political battle for control of Congress and state legislatures in November and beyond has Democrats and Republicans decrying election maps as unconstitutional while simultaneously fighting over who will draw them in the future.
Democrats won the latest round Monday when the Supreme Court refused to intervene in Pennsylvania, where the state’s highest court last month struck down congressional district lines drawn by Republicans. The maps have helped the GOP to win 13 of 18 House seats in the political battleground state.
The high court’s greater impact could come in the next few months with rulings on partisan maps drawn by Republicans in Wisconsin and Democrats in Maryland. Those decisions, in turn, could affect many of the 37 states where state lawmakers, rather than commissions, draw the lines.
But while both parties are tied up in those and other legal battles — including in Michigan, North Carolina, Texas and Virginia — they also are fighting at the polls for control of the state legislatures that will draw the next set of maps following the 2020 Census.
“This could be years of court battles,” said Ben Wexler-Waite of Forward Majority, one of several groups organized by Democrats to win back state legislatures. “The courts are a critical front in the fight against gerrymandering, but it would be very naive to think they’re a silver bullet.”
Pennsylvania, in fact, may be the only state where court action leads to changes before November’s midterm elections. Even if the Supreme Court strikes down maps in Wisconsin or Maryland, new district lines aren’t likely to emerge before the next round of elections in 2020.
Those elections will determine who draws the maps for the following decade, possibly under guidance from the high court that stops lawmakers from being blatantly partisan.
“Risk-averse line drawers will do what they can to insulate themselves from lawsuits,” says Rick Hasen, an election law expert at the University of California-Irvine School of Law. “It would have a general, moderating effect on the drawing of these lines.”
GOP gamesmanship
Republicans stormed into control of 25 state legislatures in the 2010 elections, then drew favorable federal and state district lines that have endured throughout the decade. As a result, they have gained nearly 1,000 state legislative seats and now control about twothirds of all the chambers. In 26 states, they control both houses of the legislature and the governor’s office.
“The needle is pointed almost as far to the right as it possibly could right now,” says Michael McDonald, an expert on redistricting at the University of Florida.
Even after November, he said, “the overall map will still be favoring the Republicans. The Democrats will still need some sort of wind behind them.”
Democrats hope the wind comes this fall in the form of a gale against President Trump and Republicans up and down the ballot.
“We’re only 16 seats away from flipping eight chambers,” says Jessica Post, executive director of the Democratic Legislative Campaign Committee. “We know we can make strong gains all across the country, even in states where Republicans have rigged the maps in their favor.”
Changing the rules
The justices heard the challenge to Wisconsin’s state Assembly lines in October, when it appeared a slim majority might be inclined to strike them down.
The court agreed to hear the Maryland case this spring.
The cases are similar in one respect: The party controlling the map-drawing apparatus gamed the system to its advantage. Wisconsin Republicans have a 2-to-1 advantage in the state Assembly; Maryland Democrats have seven of eight seats in Congress.
Any decision striking down the maps likely would give state lawmakers another chance to draw them before courts threaten to take over the process. The party in power, therefore, still would have the opportunity to favor itself.
“It’s the equivalent of telling states they were speeding, and to speed a little less,” says Justin Levitt, an election law expert at Loyola Law School in Los Angeles. “That’s significant, but not necessarily game-changing.”