What to Watch in Partisan Gerrymandering

In the wake of this decade’s initial redistricting cycle, judicial elections in several states have prompted courts in those states to reconsider their previous decisions on U.S. House district boundaries and composition. As a result, the nation is in a period of exceptional uncertainty about districting maps, with profound implications for congressional makeup and control.

While the United States has been no stranger to partisan legal efforts to affect representation in the U.S. House of Representatives over the last few decades, the 2020s have proven to be a markedly volatile period for redistricting. Increasingly, this turbulence is driven by changes in the makeup of state courts. While there are many challenges to the partisan status quo unfolding across the country, three pending disputes have the potential to significantly alter the makeup of the House as soon as the upcoming election cycle.

First among these challenges comes from what many have deemed the most gerrymandered state in the union: Wisconsin. There, the election of liberal Justice Janet Protasiewicz to the nominally nonpartisan Wisconsin Supreme Court has galvanized Democrats to pursue a judicial remedy for the longstanding pro-Republican bias in districting for both state and federal representatives. Plaintiffs, Wisconsin citizens, have already filed suit to strike the Republican-drawn statehouse maps under state constitutional equal protection principles¹, and legal advocacy groups have promised to sue to strike what they have deemed the 2022 House map as an unconstitutional gerrymander ahead of the 2024 election.

Second, in North Carolina, Republicans recently gained a majority on the partisan North Carolina Supreme Court.  Making the extremely rare choice to grant a petition for rehearing, the court reheard arguments for reinstating a version of the Republican legislature’s congressional map, which the Court had (in Harper I) rejected ahead of the 2022 election as not meeting standards for partisan fairness.² In April 2023, the reconstituted Court overruled Harper I and superseded its opinion in Harper II, holding, as the U.S. Supreme Court did in Rucho v. Common Cause, 588 U.S. ___ (2019), that there is “no judicially manageable standard by which to adjudicate partisan gerrymandering claims.”³ This decision permits the Republican state legislature to redraw its map to be similar to the legislature’s original version. Such change is projected to elect three to four more Republicans than the current iteration, which has produced a congressional delegation evenly split between seven Republicans and seven Democrats. 

Third, on July 13, a panel of judges in New York’s intermediate appellate court in Albany held that an Independent Redistricting Commission must redraw the State’s 2022 House map, drafted by a special master after the New York Court of Appeals rejected the Democratic legislature’s proposal.⁴ The decision is almost certainly headed to the New York Court of Appeals, where the appointment of Judge Caitlin Halligan and promotion of Judge Rowan Wilson to Chief Judge have arguably shifted the balance of power from a conservative to liberal court. Democrats lost four House seats in New York following 2022 redistricting; any change to the 2024 map could result in substantial gains for the Democratic Party.

While Democrats and Republicans in these cases alternate in their roles as plaintiffs and defendants, these three examples demonstrate the willingness of state courts, after changes in their composition, to rehear arguments to toss out districting maps that the Courts approved since the constitutionally mandated start-of-decade redistricting. And if the highest courts in New York and Wisconsin rule in favor of the plaintiffs, they would join the North Carolina Supreme Court in evincing an increased disposition on the part of state judiciaries to force or permit state legislatures, out of the normal census-based cycle, to redraw maps that have become unfavorable to the partisan preferences commonly associated with the state’s highest court.

Given the probability of highly competitive national environment in 2024 and the current razor-thin margin between Republicans and Democrats in Congress, forthcoming decisions from state supreme courts have the potential to reshape Congress’s composition and significantly influence which party controls the House following the 2024 federal election. The stakes of these high-profile constitutional fights over redistricting are high, and the fight over partisan representation in state courts does not appear to be going away any time soon.

¹ See Clarke v. Wisconsin Elections Commission, No Case Number Assigned, (Wis., 2023). Plaintiff’s Brief available at: https://drive.google.com/file/d/1FlDyi1VvrIYs2-ylzozmOY0U1DNwvp4Z/view?pli=1.
² Harper v. Hall, 886 S.E.2d 393 (N.C. 2023).
³ Id. at 448-49.
⁴ See Hoffman v. New York Independent Redistricting Commission, No. CV-22-2265, 2023 N.Y. Slip Op. 03828, 2023 WL 4494494 (N.Y.A.D. 3 Dept., July 13, 2023).