CNN
—
The battle for control of the House of Representatives increasingly resembles a sporting event in which the teams are changing the dimensions of the playing field even after the game is underway.
As many as a dozen or more states could redraw the lines governing their congressional elections again before the 2024 election, more than enough to shift the balance of power in a House where the two parties have only managed to eke out mirror image five-seat majorities over the past two elections.
Experts agree it’s unprecedented in modern times for this many House seats to remain in flux this long after the decennial redrawing of Congressional districts that last occurred following the 2020 Census.
While it’s not likely that all of these states will ultimately draw new lines, a combination of state and federal lawsuits and shifts in the balance of power in state legislatures and courts virtually ensure that an unusually large number of districts may look different in 2024 than they did in 2022, with huge implications for control of the House. “It’s just trench warfare back and forth,” says Kelly Burton, president of the National Democratic Redistricting Committee, the leading Democratic group involved in congressional redistricting.
The possibility that so many states could still reconfigure their House districts reflects the uncertainty looming over the political system as the Supreme Court considers momentous cases that will shape the future of voting rights challenges to congressional maps and the authority of state supreme courts to police partisan gerrymandering. “We are kind of all in a holding pattern until we determine what the Supreme Court does in those two cases,” said Nick Seabrook, a University of North Florida political scientist and author of two books on the history of gerrymandering.
Equally important, though, may be the growing determination of each party to scratch out every potential edge in the achingly tight battle for control of the House – an attitude that has encouraged both sides to fight in ways that neither even contemplated not too long ago. “What’s happened is politics has gotten more competitive and closer, and the stakes are higher for all these constituents, all the old norms have just eroded,” said former Republican Rep. Tom Davis, who served as chair of the National Republican Congressional Committee. “There are no rules anymore … and might makes right.”
In the civics textbook version, redistricting happens just once every ten years. The Census marks the shifts of population among the states; the number of congressional seats for each state is then reapportioned accordingly; and finally state legislatures or non-partisan commissions in some states draw new congressional districts that reflect population shifts within the states in time for the first election after the decennial Census. Those lines in theory then stay in place through the next Census eight years after that first election.
In the modern era, though, more legal and political conflicts over redistricting are spilling over that traditional schedule.
Overall, most experts agree the 2020 maps yielded a more equitable set of districts than the maps produced after 2010, when the GOP swept control of state governments in the “Tea Party” election that year and used that power to impose severely gerrymandered maps in multiple states. “The maps are keeping the House competitive because they are more fair,” says Burton.
But the results of the unusually large number of extended re-redistricting fights, which Burton calculates could affect control of as many as 15-19 House seats, could change that verdict on the fairness of the 2020 process.
Through the work of the NDRC (founded by Eric Holder, the attorney general for former President Barack Obama) and other groups, Democrats mounted a much more systematic effort to influence redistricting after 2020 than they did after 2010. But even so, Republicans now have the most reliable opportunities to gain seats from the ongoing process of re-redistricting, which could be critical in fortifying their narrow 222 seat majority in the House.
The biggest shift could come in North Carolina, where a Democratic-majority state Supreme Court over recent years has repeatedly rejected congressional maps drawn by the Republican-controlled state legislature as partisan gerrymanders that violate the state constitution. Under the court’s maps, Democrats split the state’s 14 congressional seats 7-7 in last November’s election. But in that election, Republicans won a majority on the state Supreme Court. As a result, local observers expect the GOP legislature (which has already petitioned the new court to overturn its earlier rulings) to impose a map that puts the GOP in position to win at least 10, and maybe 11, seats. “The Republicans will go as extreme as they can,” said Michael Bitzer, chair of the politics department at Catawba College who writes a blog on North Carolina politics. “That would result in a swing of 4 seats to the Republicans in just this state.”
Likewise, a shift in the ideological balance of the state Supreme Court in Ohio could enable the Republican-controlled legislature there to draw new maps that allow the GOP to expand its current 10-5 advantage in the state’s congressional delegation. From these two states alone, Republicans could gain as many as six more Congressional seats, calculates Kyle Kondik, managing editor for the Sabato’s Crystal Ball election newsletter of the University of Virginia’s Center for Politics.
Against those nearly certain gains for the GOP in the re-redistricting process, the largest group of Democratic opportunities revolves around lawsuits under the Voting Rights Act challenging Republican gerrymanders. If Democrats and civil rights groups win those cases, Louisiana, Georgia and Alabama would be required to create one more district each favoring a Black candidate, and Texas could be required to create three districts or more favoring minority candidates.
Lower courts have already ruled for the Democrats in the first three states. But the Georgia court did not order a new map, and in Alabama and Louisiana, the US Supreme Court blocked the lower court rulings and allowed the states to vote in 2022 under the disputed lines on the grounds that it was too close to the election to change them. Those rulings likely netted Republicans three seats in the 2022 election.
Now the Supreme Court, in the case of Merrill v. Milligan, is deciding the underlying question of whether the Republican-drawn map in Alabama in fact violates the Voting Rights Act, a decision that will likely shape the outcomes in the other challenged states as well. The Republican-appointed justices have repeatedly weakened the VRA in a series of rulings over recent years, and many observers expect them to use the Alabama case to do so again. “It doesn’t seem to me likely this Supreme Court is going to say ‘go draw more Black districts in the south,’” said Michael Li, senior counsel at the Brennan Center for Justice at New York University, and an expert on redistricting.
Beyond the VRA lawsuits, Democrats are also pursuing other claims of racial bias in federal lawsuits against the district lines approved in South Carolina and Florida. But since the ultimate terminus for any federal litigation remains the GOP Supreme Court majority, those cases face uncertain prospects as well.
With the Supreme Court limiting federal opportunities, Democrats are turning more to cases in state courts that challenge gerrymandered maps as a violation of state constitutions. “State courts have proven to be surprisingly fertile territory for this,” said Li. “Courts in both Republican states and Democratic states have been willing to strike down maps from the party in charge.”
Through the last half of the 2010s, Democrats won four such state challenges to invalidate Republican-drawn congressional maps as unfair partisan gerrymanders in Pennsylvania, North Carolina, Florida and Virginia. The University of Virginia’s Center for Politics calculated that the new congressional maps the courts imposed netted Democrats an additional six seats in Congress; since Democrats emerged from the 2020 election with just a five-seat majority, those judicial interventions undoing Republican gerrymanders, the Center wrote, were probably enough to cost the GOP the majority at that point.
Since 2020, state court interventions have cut both ways. In North Carolina, as noted above, the court blocked a GOP gerrymander; but state courts have also undone Democratic gerrymanders in Maryland and especially New York while refusing to intervene against an aggressive Florida gerrymander engineered by GOP Governor Ron DeSantis. Some observers believe there’s a plausible case that control of the House flipped because a Democratic majority high court in New York overturned a gerrymander from its own party while a Republican majority high court in Florida did not. “If you look at the current [House] margin, almost all of that is Florida and New York,” said Seabrook.
Cases challenging congressional gerrymanders as violation of state laws are now pending in Florida, Utah and New Mexico (with the latter a challenge from Republicans.) In Arkansas, Democrats are pursuing both state and federal challenges to the congressional map. If Democrats win a majority of the state Supreme Court in a closely watched election in Wisconsin this spring, it’s likely that a case will be brought there as well, said Ben Wikler, chair of the state Democratic Party. “Wisconsin is a 50-50 state represented by six Republicans and two Democrats in Congress,” he said.
Another wildcard is New York, where the Democratic-controlled top court (called the New York State Court of Appeals there) in a 4-3 decision last year rejected the legislature’s congressional gerrymander and drew new maps that contributed to the GOP’s unexpected gains across the state last fall. Now, though, the ideological future of that court appears up for grabs: Democrats in the state Senate appear likely to block Democratic Gov. Kathy Hochul’s nomination of a conservative to fill a vacancy. If she ultimately appoints a more liberal judge, it’s conceivable state Democrats might try to draw new lines again, some local observers believe; redrawing the lines in New York, in fact, might prove Democrats’ best chance to offset the new seats Republicans will likely gain from re-redistricting in North Carolina and Ohio.
Looming over the growing role of state courts to the redistricting battles is another hugely consequential Supreme Court case. In a North Carolina case (Moore v. Harper), the court could use the so-called “independent state legislature” doctrine to limit or even bar state courts from overturning state legislatures’ decisions on congressional maps (and other aspects of federal election administration.)
Over the past decade, the GOP-appointed Supreme Court majority has already ended Justice Department preclearance of congressional maps (and other election rules) in states with a history of discrimination and ruled that federal courts cannot overturn maps on the grounds that they constitute unfair partisan gerrymanders. Now, between the Alabama case and North Carolina rulings, the GOP justices could seal off two of the remaining avenues Democrats have used to challenge gerrymandered congressional maps. “The outcome in both of these cases is likely to be bad for opponents of gerrymandering, either racial gerrymandering or partisan gerrymandering,” said Seabrook. “The question is: how bad.”
The answer, for years to come, could determine control of a House of Representatives that now looks stuck on a knife’s edge between the parties.
But beyond the question of which party benefits if the Supreme Court continues to raze the guard rails against overly partisan maps is the impact on voters. Fewer restrictions on gerrymandering means more seats virtually guaranteed to elect candidates from one party or the other. In other words, more seats in which the politicians pick the voters rather than the other way around. “The alarming thing,” said Davis, the former Republican representative “is you are taking the voters out of the equation.”
