This article is part of TPM Cafe, TPM’s home for opinion and news analysis. It was published here and on the website for the Brennan Center for Justice.
North Carolina voters will finally get a chance to elect their lawmakers using fair maps, thanks to last Tuesday’s state court ruling that struck down the existing maps as a gerrymander that violated the state constitution.
In June, the U.S. Supreme Court ruled that federal courts can’t intervene to stop partisan gerrymandering. Yet, last week’s North Carolina decision was the eighth straight anti-gerrymandering ruling by a state or lower federal court, underscoring just what an outlier the high court’s ruling really is.
This latest news also serves to highlight a broader shift. As we approach the next redistricting cycle starting in 2021, the outlook for getting fair maps in the states that were most egregiously gerrymandered last time around is much more positive than you might think. A close look at those eight states suggests that — though the gerrymandering threat is by no means gone — things are likely to play out very differently this time, thanks to a combination of voter-driven reform efforts, pro-voter court rulings, and changed political dynamics.
The North Carolina ruling itself is seismic. Whether it affects the state’s congressional map or just the state legislative maps that were directly struck down remains unclear. Also unclear is the ruling’s precedential value, since it was issued by a lower state court, not by the state supreme court. But because it ensures that the 2020 state legislative elections will use fair maps, the ruling will likely lead to a state legislature in 2021 that’s relatively evenly balanced between the two parties — perhaps even with split control — rather than wildly skewed to the GOP against the will of voters, as it is now. (The governor has no role in the process in North Carolina). That alone should make the next redistricting process, through which both state legislative and congressional lines will be drawn, much fairer.
It’s a similar story in Pennsylvania. There, the GOP’s gerrymander of the congressional map was struck down by the state supreme court, setting a clear precedent for fair maps that will extend into the next cycle. There’s also a strong grassroots effort to reform the redistricting process by creating an independent commission of some kind, which could well bear fruit before 2021. And, unlike last time around, state government is likely to be split between a Republican legislature and a Democratic governor, meaning a rigged congressional map can be vetoed.
In two other gerrymandering hotspots from last cycle, voters haven’t waited on the courts, instead approving ballot measures to fix the process. Michigan’s initiative, the product of an inspiring grassroots movement, created an independent commission composed of Democrats, Republicans, and unaffiliated citizens. It’s currently being challenged in court by the state GOP and Republican voters — lawsuits that, reformers fear, could hamstring the panel’s work even if they ultimately fail. But even if that happens, the presence of a Democratic governor with veto power, just like in Pennsylvania, should act as a check on the Republican legislature. In Ohio, Republicans retain full control of state government, but voters approved reform measures — including a bipartisan commission to draw state legislative districts, and criteria for partisan fairness in drawing congressional lines — that will likely to create a fairer process. Those measures originated with the legislature, suggesting even lawmakers understand the need for reform.
Virginia could well be next to embrace reform. The legislature passed a constitutional amendment to fix redistricting, though it still needs to clear the General Assembly again before going on the ballot. If it does, and wins approval from voters later this year, the measure would create a commission made up of citizens and legislators and require that maps receive broad approval to be adopted. And again, even if the reform push falters, control of the government may be divided this time around (as it is currently), unlike in 2011.
That leaves three states where the reform outlook is less positive — but even here, there are reasons for hope. Wisconsin also now has a Democratic governor, which should prevent Republicans in the legislature from running the table. Still, any dispute would likely end up before the state supreme court, which is currently controlled by a conservative majority whose rulings have often pleased the GOP.
In Florida, where the Republicans retain full control of state government, several court decisions from recent years establishing stricter criteria for fairness have created some guardrails. But whether they’re enforced will be decided by the state’s supreme court, which a Florida paper this year called the most conservative in decades.
In Texas, too, Republicans enjoy a trifecta. And despite years of litigation over this decade’s maps, there’s little to stop them from pressing their advantage again. But here, another factor could come into play: the state’s rapid demographic changes, which some experts think could make it much more difficult to devise an effective gerrymander that holds up over the decade. It’s also possible that Democrats win control of the state house, giving them the power to block bad congressional maps and send the process to the courts.
Of course, it’s way too soon to come anywhere close to popping the champagne. In every state, there are plenty of unknowns about how things will play out. And both parties are currently pouring millions into key 2020 state legislative races with the explicit goal of putting themselves in a better position to control the redistricting process that will follow.
Other states beyond the eight worst offenders will be looking to rig their maps, too. Reformers fear several GOP-controlled states including Missouri, Oklahoma, and South Carolina, where Democrats managed to peel off a congressional district last year, may try to shore things up so that never happens again.
If the next cycle produces much fairer maps than the last one did, as looks likely right now, it’ll be thanks largely to the hard and smart work — in the streets, at the polls, and in the courts — of reform backers. Amid the justified concern over the fairness of our democracy, that’s worth taking a moment to acknowledge. Still, those who care about fixing our broken redistricting process can’t afford to take their foot off the pedal for a second.
The views expressed here are those of the author and not necessarily those of the Brennan Center for Justice.
Zachary Roth is a fellow at the Brennan Center, a former national reporter at MSNBC and the author of The Great Suppression: Voting Rights, Corporate Cash, and the Conservative Assault on Democracy (Crown), which was the runner-up for the 2017 J. Anthony Lukas Prize awarded by Columbia Journalism School and the Harvard Neiman Foundation. He has written for the The New York Times, The Los Angeles Times, The Atlantic, The New Republic, Slate, Salon, and other outlets.
The outlook in New York is also brighter, assuming that Governor Cuomo doesn’t get up to his old tricks. The current map (which he helped to produce) gives the GOP an unfair advantage.
In June, the U.S. Supreme Court ruled that federal courts can’t intervene to stop partisan gerrymandering. Yet, last week’s North Carolina decision was the eighth straight anti-gerrymandering ruling by a state or lower federal court, underscoring just what an outlier the high court’s ruling really is.
Well said, and very disturbing.
There’s nothing bright about the outlook in Wisconsin. We can smell the rot already - and there’s honestly nothing anyone can do about it. Fitz and Vos have been vying to outdo each other in demonstrating their Walker-clone bona fides of arrogance and dishonesty, and the Supremes have appeared perfectly happy to be seen as a purely political entity.
The author of this post appears to be an expert, which means the already noted failure to explain Wisconsin’s situation better should be remedied next time. Also, some reference to the effectiveness of the Holder/Obama voting rights effort and any other organizations that can be cited would be much appreciated. In other words, if I had been writing this, it would have been at least 2 grafs longer and include more context. Quit with the lazy!
The precedential effect of the order is not “unclear.” It is dispositive of the issues addressed in the ruling’s decretal provisions (the decree at the end). As a trial court ruling, it is subject to the general rule that one trial court cannot overrule another in a matter pertaining to the same parties and facts absent a change in circumstances but is not mandatory authority (a case that must be followed) by other trial courts in cases involving different parties or facts.
However, it is an exceptionally well-considered, well-reasoned, well-supported decision that is likely to have enormous persuasive authority in any case involving our obscenely gerrymandered federal districts and further litigation over our state districts and, I predict, will have enormous influence in the several other states that have the same or similar provisions in their state constitutions relied upon by the court in this case.
The influence is “uncertain,” because it hasn’t happened yet. But that isn’t the same thing as “unclear.”