Control of House Could Hinge on Redistricting Battles Playing Out in State Courts

Democrats in New York and Wisconsin are pushing for the redrawing of maps that currently favor their Republican counterparts.

AP/Tony Dejak, file

In a major win for partisan map-drawers everywhere, the North Carolina state supreme court has ruled in favor of the state’s Republican legislators who are seeking to create new legislative maps that more heavily favor themselves. Although at first glance it appears to be a major win for the GOP, state courts across the country are also considering redistricting cases that could hand new power to the Democratic party.

On Friday, the North Carolina court ruled that state courts — like themselves — have no role in adjudicating the legality of district maps drawn by the state legislature. The decision is the first test of the so-called “independent state legislature theory,” which mandates state legislatures be the highest authority in setting the rules for elections.

​​“Our constitution expressly assigns the redistricting authority to the General Assembly,” Chief Justice Paul Newby wrote for the majority. “Those limitations do not address partisan gerrymandering. It is not within the authority of this Court to amend the constitution to create such limitations on a responsibility that is textually assigned to another branch.”

The decision is a major reversal for the court, which ruled in 2022 that the state legislature must draw maps that more accurately reflect the partisan make-up of the Tarheel State. North Carolina elects justices to its highest court, and the majority flipped to Republican from Democrat last year. The new congressional district maps mandated by the court last year resulted in Democrats winning seven of the state’s 14 U.S. House races. 

Beyond North Carolina, Democrats in New York and Wisconsin are pushing for the redrawing of maps that currently favor their Republican counterparts. 

In the Empire State, Democrats are asking the state’s highest court — the New York Court of Appeals — to allow the legislature to reinstitute a heavily Democratic gerrymander which was struck down last year. The case declaring the original maps unconstitutional, Harkenrider v. Hochul, created a host of competitive districts that would eventually swing to the Republicans last November.  

A former congressman who was deeply involved in the Harkenrider case, John Faso, tells the Sun that suing to redraw the maps is “clearly” an attempt by the Democrats to “get a do-over because they lost last year.”

A new case pending in the lower courts, Hoffman v. Independent Redistricting Commission, argues that the Harkenrider case only applied to the 2022 elections and the maps should be withdrawn before next year. Mr. Faso said that is a “very dubious theory” and “patently absurd.”

“We believe our case is strong and that the Harkenrider case is very explicit,” Mr. Faso says about their ongoing defense of the district maps.

Mr. Faso said the more competitive maps that New York adopted create a more vibrant “democratic culture” in the state, forcing representatives to “listen to their constituents” more intently than if they were in highly partisan districts. In the original Democratic gerrymander, New York would have 22 Democratic-favoring seats and just four Republican-leaning seats. 

The New York Democrats’ fight for more favorable maps was buoyed earlier this month when two new judges joined the state’s highest court. Associate Judge Rowan Wilson — a more liberal member of the court who wanted the original gerrymander to stand — was promoted to chief judge. Succeeding him in his associate position is a former state solicitor general, Caitlin Halligan. 

On April 7, Governor Hochul and New York’s attorney general, Letitia James, filed an amicus brief in the Hoffman case, saying that New Yorkers deserved to have their district maps drawn by elected representatives, not the courts. 

“Our state’s Constitution makes it clear that an independent body, with participation from the general public, is charged with drawing maps for Congressional districts,” Ms. James said in a statement. “Relying on a process with no accountability and with limited time for public input is not how we engage the public.”

One of the lead plaintiff attorneys in the Harkenrider case, George Winner, tells the Sun that Democrats are making the “cynical” move to reinstate their “outrageous gerrymander.” 

Activists in Wisconsin are also looking to redraw what they see as unfair maps. On April 4, a liberal Milwaukee judge, Janet Protasiewicz, flipped a seat on the Wisconsin supreme court to make the body a 4–3 liberal majority. 

Justice-elect Protasiewicz said explicitly during her campaign that Republicans had gerrymandered the state so aggressively that they have made themselves a permanent majority in both the state legislature and the state’s U.S. House delegation. “Those maps are rigged,” Judge Protasiezwicz said during one pre-election debate. 

The conservative majority on the Wisconsin supreme court twice declined to redraw the Republican gerrymander. In both 2021 and 2022, in 4–3 decisions, the justices handed the GOP major wins — something Judge Protasiezwicz said was a mistake. 

According to the Capital Times, a progressive legal advocacy group based in Milwaukee, Law Forward, plans to file a lawsuit challenging the maps on the day Judge Protasiewicz is sworn in as an associate justice. 

Wisconsin is the “most gerrymandered state in the country,” a former U.S. attorney general, Eric Holder, said at a rally with Judge Protasiewicz before the election. “When you get compared to Texas when it comes to electoral things, that’s not a good thing,” Mr. Holder said. 

With just a four-seat majority in the U.S. House, Speaker McCarthy’s job is very much on the line as these cases unfold. The North Carolina decision could deliver him a more solid base of support by eliminating some of the Democratic-held seats, but those gains could also be washed out by new maps in New York and Wisconsin.

The New York Sun

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