Litigating Gerrymandering in the Post-Rucho World: State Law and Political Maps, Part 1

While some of our readers are deep in the weeds on redistricting after Rucho v Common Cause, the Supreme Court’s 2019 decision that allows the continuation of partisan gerrymandering in legislative redistricting, others may be less immersed, focusing on their home state, or monitoring a state that will be key in the 2024 Presidential election. Since we’re all about local and state, SALPAL’s inaugural State and Local Justice Fellow, Kathryn Randolph, provided an overview of what’s going on with litigation around the country and its effect on the maps. We’re publishing Kathryn’s research as a two-part post. We hope that it will be helpful to you.


Ohio and New Jersey: Diverging State Law Means Different Fates for Similar Maps


While the pandemic has changed many things about elections, one thing has stubbornly stayed the same: partisan gerrymandering. Thanks to delayed census data, many new political maps were unveiled on a much later timeline than usual. Several maps from the original slate of final drafts have already been challenged for reflecting unlawful partisan bias and litigation is ongoing, even as 2022 midterms loom. However, this is the first post-Rucho redistricting cycle, which has changed the face of legal challenges against partisan gerrymanders. More than two dozen partisan gerrymandering cases have arisen in sixteen different states. Challenges against nine congressional maps and nine state legislative maps are ongoing. In Kentucky, Maryland, North Carolina, and Ohio, both congressional and state legislative maps have been challenged. With federal courts out of the (political) question, plaintiffs have taken their cases to state court and based their allegations on state law.


This two-part series looks at partisan gerrymandering claims in the wake of the 2020-2021 redistricting cycle. This work doesn’t address racial gerrymandering claims or the state of VRA claims post-Brnovich, a separate issue worth investigating. This installment discusses two recent cases, illustrating the different fates of two partisan gerrymanders. Ohio and New Jersey provide a jumping off point for the analysis, showing a stark difference in outcomes for similar gerrymanders because of diverging underlying state law. The presence of a clear, specific prohibition on partisan gerrymandering in Ohio made all the difference. One map was upheld and one was struck down–Ohio’s litigation is only ongoing because the legislature still has not provided a satisfactory replacement map, not because the merits remain in dispute. The second installment will examine ongoing cases, looking at cases based in broader state constitutional provisions as well as specific partisan gerrymandering prohibitions of varying constructions. Even with similar underlying law, these cases can come out differently, as each state’s court will interpret its own law in its own way.


The cases in Ohio and New Jersey, show the difference between claims in states with solid state law bases for challenging partisan gerrymanders and those without such constitutional or statutory provisions. In Adams v. DeWine, Ohio’s maps were sent back to the drawing board, while New Jersey’s survived litigation in Steinhardt v. New Jersey Redistricting Commission. This all comes down to diverging state law on partisanship in mapmaking. Ohio is one of seven states that expressly prohibits partisan influence in mapdrawing as part of its constitution. New Jersey is not. New Jersey also does not have a statutory prohibition on partisan maps, nor does its constitution contain a broader “free,” “equal,” or “open” elections clause, another path to challenging political maps. States’ redistricting criteria, which may differ for state legislative districts and congressional districts, may also be used to challenge partisan maps, especially if challengers can show that map drawers created non-compact districts or districts that split political subdivisions exclusively to create partisan benefits. New Jersey also lacks detailed criteria for state legislative boundaries and has no criteria at all for congressional boundaries, further limiting opportunities for challengers to attack partisan gerrymandering in the state.


Both Ohio and New Jersey’s legislatures have created egregious gerrymanders in the past. The efficiency gap in each state is similar: +19.9 for Republicans in Ohio based on the 2011 map–which Justice Donnelly thought was close to (or even less partisan than) the proposed 2022 map he rejected in Adams v. DeWine– and +15.5 for Democrats in New Jersey based on their newly approved map. Additionally, their legislatures don’t appear to match other measures of political opinion in the states. For example, Ohio’s current state senate is 75% Republican. This isn’t because Republicans had significantly higher participation in state legislative races. After adding up the total number of ballots cast for state legislative candidates statewide in the past two cycles (using data from Ballotpedia) and comparing the partisan breakdown of votes statewide, the vast share of Republican state legislative seats is not commensurate with the more modest share of statewide Republican votes. While Republicans hold a fairly comfortable majority of the state’s voters in state legislative races, that majority isn’t a landslide. Only 55% of voters for the sitting state senate cast ballots for Republicans. Democrats garnered 45% of state senate votes but hold only 25% of state senate seats. There is a closer fit in the state house, where Republicans hold approximately 65% of the seats and obtained about 57% of the vote, leaving Democrats with only 35% of the seats despite their 42% share of statewide votes. The same method yields similar results in New Jersey. The imbalance is less pronounced, but still present. Democrats hold 60% of state senate seats but garnered 52% of the vote, closer to a simple majority than a supermajority. In the state House, it’s 57% of the seats to 52% of the votes.


Though no state or federal law requires either state to approximate political proportionality, such a significant departure from proportionality seems to indicate a problem in the maps–the concurring justices in Adams v. DeWine, Ohio’s redistricting case, agreed with petitioners on this front. Chief Justice O’Connor’s opinion directly quoted their reply brief, stating that the petitioners “have never advocated that strict proportionality is required by [Ohio’s Constitution]. Indeed, it is not. But it goes too far in the other direction to suggest that in considering whether a plan is unduly partisan, the Supreme Court should simply ignore a gross departure from proportionality.” There’s no question that both states have a history of drawing partisan maps–the question is whether these maps are unlawfully partisan, and the answer was different in each state.


The challenge in Adams v. DeWine was straightforward: Democrats in the state legislature could rely on the state constitution’s express prohibition on partisan maps to bring their challenge against new congressional districts. In Adams, Democrats specifically alleged that the congressional map 1) “unduly favor[ed] or disfavor[ed] a political party or its incumbents,” meaning that it could not lawfully be adopted by a simple majority vote, as it was, and 2) it “unduly split[] governmental units.” Ohio law doesn’t define or explain what it means to “unduly” draw a district line. Justice Donnelly, writing for the majority, looked to dictionaries and ultimately accepted petitioners’ argument that a map unduly splits a political subdivision or confers partisan advantage when doing so is “unwarranted by valid considerations, namely, the redistricting criteria set forth in Article XIX.” In that case, it was up to mapdrawers to present the valid, non-partisan considerations that had come into play in creating the map. Ohio Republicans failed to provide a satisfactory answer to Justice Donnelly. No valid considerations–that is, other criteria for redistricting–supported such a significant diversion from political proportionality or unusual fracturing of individual counties.


Arguments that the proposed maps created new competitive districts where neither party would have a guaranteed victory, fell flat. Map drawers relied on a more limited range of data, only presenting data from federal elections and omitting state-level races, to reach their conclusions and set the threshold for a “competitive” district at a level that didn’t actually end up creating much competition. Map drawers defined a competitive district as “one in which a candidate is expected to obtain 50 percent of the vote, plus or minus 4 percent, resulting in up to an 8-point spread between the winning and losing candidates.” The majority concluded that competitive districts were in fact “districts that give the Republican Party’s candidates a better chance of winning than they would otherwise have had in a more compactly drawn district, resulted in a plan that unduly favors the Republican Party and unduly disfavors the Democratic Party,” in part pointing to expert testimony that the map would yield 2.8 more Republican seats than warranted. Justice Donnelly concluded that partisan bias was clear, whether looking at the maps “through the lens of expert statistical analysis or by application of simple common sense.” Because of Ohio’s constitutional prohibition on partisan bias in political maps, the gerrymander was struck down and the court ordered the legislature back to the drawing board. However, Ohio still has not finalized a lawful map. Litigation in the state drags on as the legislature has found itself at an impasse, with judicially-imposed deadlines doing little to bring the process to a satisfactory end.


New Jersey Republicans, on the other hand, could only challenge the procedure behind the gerrymander’s creation. The New Jersey GOP’s complaint in Steinhardt v. New Jersey Redistricting Commission relied on “federal and state constitutional equal protection and due process protections” and claims of a conflict of interest on the part of retired judge John Wallace, who, as the non-partisan commissioner in the proceedings, made the final decision on which map would be used. In the state Supreme Court, Chief Justice Rabner’s majority opinion rejected these arguments, dismissing the case entirely. Under New Jersey law, a court can only intervene to invalidate a map if that map is “unlawful,” and there is a “presumption of legality with judicial intervention warranted only if some positive showing of invidious discrimination or other constitutional deficiency is made.” If state law presented an option for New Jersey Republicans to argue that the map was substantively unlawful, they didn’t use it. Because it isn’t the New Jersey judiciary’s role to reach conclusions about a map’s fairness, and because the state’s redistricting commission isn’t held to the same “arbitrary and capricious” standard as state agencies, the maps were able to stand.


It is important to note that there is an entirely separate discussion to be had here about how deficient New Jersey’s process is. Allowing essentially one arbiter to make a decision, based on criteria they themselves select, absolutely allows for arbitrariness. Because redistricting criteria provided by the state constitution are so scant, Judge Wallace was essentially left to create his own criteria, as listed in his amplified statement on the issue. One of these criteria was partisan fairness and Judge Wallace states that he and his staff did break down the statistical fairness of the proposed maps, but they were not transparent about the results they uncovered. Ultimately, because “partisan fairness” was a broad consideration rather than a specific one, Judge Wallace could decide that the best way to meet this criteria was to essentially give Democrats a turn to draw the maps after Republicans had one of their own. In the concluding paragraphs of the opinion, Chief Justice Rabner himself suggests that there are better ways for New Jersey to undertake redistricting and expresses concern that displays of partisanship undermine the Commission’s (and the government’s) credibility.


Republicans in New York, Maryland, or Pennsylvania may have better luck than their New Jersey counterparts. In these states, there are more concrete, specific state law bases to challenge partisan gerrymanders. New York State explicitly prohibits partisan gerrymandering in its constitution. However, its prohibition differs from Ohio’s in key ways. Maryland’s constitution contains a Free Elections Clause. Pennsylvania’s constitution contains a “Free and Equal Elections Clause,” covering both avenues. The path to overturning the partisan gerrymander is clearest in New York, but still viable in Maryland and Pennsylvania. More on these challenges, as well as other possible outcomes in states with express prohibitions on partisan gerrymandering, tomorrow.