Litigating Gerrymandering in the Post-Rucho World: State Law and Political Maps, Part 2

Updated: Jun 15

Diverging Paths to Challenging Gerrymanders: Past Results and Possible Outcomes


Ohio and New Jersey are far from the only states to have their maps challenged in partisan gerrymanders. In this second installment, I examine other ongoing cases. While two are based on specific prohibitions against partisan gerrymandering, the others are based on state constitutional provisions relating to elections or suffrage. Others still are based on even broader provisions, like equal protection or free speech, and will require state courts to determine that these state constitutional rights provide state citizens greater protection than their federal counterparts. However, there is variation even across states that expressly prohibit partisan gerrymandering, as different states use different language, which their own courts then independently interpret.


2020 Redistricting Cycle Partisan Gerrymandering Cases: Causes of Action by State


Specific Gerrymandering Prohibition

State Constitution Elections Provision(s)

State Constitution Equal Protection

State Constitution Speech or Assembly


Redistricting Criteria

Other

Michigan

New York

Ohio

Oregon


Kansas

Kentucky

Maryland

Michigan

North Carolina

New Mexico

Pennsylvania


Alaska

Kansas

Kentucky

Maryland


Kansas

Kentucky

Maryland

Michigan

North Carolina

Nevada


Kansas

Kentucky

New Mexico


Arkansas (First Amendment Freedom of Speech--Federal Const.)

Kansas (Right to vote, political power--State Const.)

Michigan (Voting rights–State Const.)

New Jersey (Procedural unfairness/arbitrariness--State law)




Looking at ongoing cases, two are based on specific state law prohibitions on partisan gerrymandering. League of Women Voters v. Independent Citizens Redistricting Commission is based on Michigan’s constitution, which states that “[d]istricts shall not provide a disproportionate advantage to any political party. A disproportionate advantage to a political party shall be determined using accepted measures of partisan fairness.” This resembles Ohio’s law, using “disproportionate advantage” rather than “unduly favor.” The case hasn’t yet gone to trial, but the complaint introduces statistical measures of partisan fairness similar to those relevant in Adams v. DeWine. The arguments in this case will likely be very similar to those in Ohio, focused on the partisan results of the maps. On the other hand, the case in New York is based on a prohibition against partisan gerrymandering that diverges slightly, but importantly, from those in Ohio and Michigan.


The New York case, Harkenrider v. Hochul, argues that the new congressional map is both procedurally defective and substantively unconstitutional. New York’s constitution expressly states that “[d]istricts shall not be to discourage competition or for the purpose of favoring or disfavoring incumbents or other particular candidates or political parties.” A state statute replicates the constitutional language. New York plaintiffs don’t have to establish that a partisan gerrymander creates an equal protection problem, prevents a free, equal, or open election, or rely on any other indirect claim. As long as New York Republicans can show that the maps approved by the state legislature “discourage competition” or have the “purpose” of favoring Democrats, they can prevail. The case is still in early stages–trial commenced in the Supreme Court of New York on March 14th after Judge McAllister denied the defendants’ February motion to dismiss the case, according to New York State records on the case.


Purpose requirements in prohibitions on partisan gerrymandering are not necessarily insurmountable barriers. If looking for analogies, the New York trial court could look to Florida for guidance. Florida’s Fair Districts Amendment contains such language, requiring that “[n]o apportionment plan or individual district shall be drawn with the intent to favor or disfavor a political party or an incumbent.” In 2015, Florida’s Supreme Court struck down several individual congressional districts for violating the state constitution, finding impermissible partisan purpose after assessing tactics used by and communications between key members of the redistricting process. However, it is still unclear how the New York State courts will determine what the legislature’s purpose was in drawing the maps or what it means to discourage electoral competition and what evidence it will find persuasive. Many of these communications and strategies in Florida (including engaging an expressly partisan redistricting consultant) were pretty blatant evidence of partisan intent. Based on case tracking by the American Redistricting Project, the defendants in Harkenrider have submitted two expert affidavits to respond to a report presented by the petitioners, all focused on statistical analysis of the maps. The petitioners have also sought discovery from lawmakers involved in the map drawing process, which John Faso, former Congressman and advisor to the petitioners in the case, expressly stated was in order to determine whether the legislature intended to create a partisan map. “We're looking to see what were their intents, what kind of interaction did they have with outside parties such as the Democratic Congressional Campaign Committee and determine what was the partisan intent," he said. Whether discovery will yield the same kind of intent evidence as found in Florida is yet to be seen.


Unfortunately for many challengers, not all partisan gerrymandering is done so openly, allowing serious gerrymanders to evade even express bans on partisan gerrymandering. Oregon statutes enumerating redistricting criteria prohibit the legislature from drawing districts “for the purpose of favoring any political party.” Two cases from late 2021 challenged Oregon’s maps for violating this statute. Plaintiffs in Sheehan v. Oregon Legislative Assembly argued that the legislature failed to consider non-partisan maps, only hearing testimony on maps presented by the Democratic and Republican caucuses, rather than the general public and intentionally creating a partisan gerrymander; the case also asserted that exclusion of maps submitted by the general public violated procedural requirements. Plaintiffs in Clarno v. Fagan claimed that the map was a partisan gerrymander that violated the state’s redistricting criteria, “cast[ing] Oregon’s political geography aside for the benefit of Democrats,” and violating Oregon Republicans’ right of free association. However, neither approach succeeded. Oregon courts will only void maps if they conclude that the legislature either 1) “did not consider one or more criteria” from the relevant statute or 2) “having considered them all, made a choice that no reasonable [reapportioning body] would have made.” In neither case did the court conclude that Oregon’s legislature drew its state legislative maps with partisan purpose, meaning that the legislature had not failed to consider any statutory criteria. The court was unpersuaded that the degree of bias in the maps themselves constituted evidence of a partisan purpose and did not see improprieties in the legislature’s decision-making process. Thus, the map would only be invalidated if no reasonable legislature would have created it. Both courts concluded that the legislature’s plan was not outside of those bounds, with one expert stating that, despite the measurable partisan advantage conferred by the map, it “falls well within the range of plans that have been used in the state for the past fifty years,” ignoring the fact that the state’s maps from the past fifty years had also conferred measurable partisan advantage.


The Oregon Supreme Court’s’ reasoning stands in stark contrast to Adams v. DeWine, which expressly rejects comparisons between new partisan maps and old partisan maps as evidence that a new partisan map should be permitted to stand. On the other hand, its Supreme Court accepted Oregon’s new map. According to FiveThirtyEight, the prior map had two “competitive” districts of a total five, while the new map has only one competitive district of a total six. The efficiency gap for the new plan is +17.2 for Democrats, similar to Ohio’s proposed new map, with an efficiency gap of 15.5+ for Republicans. The Princeton Gerrymandering Project graded the state legislative map on partisan fairness and it received an F. Its districts will still be used in the 2022 midterm election. Despite express statutory prohibitions on partisan gerrymandering, it appears that Oregon will remain gerrymandered for at least another decade.


On the other hand, a significant number of states have very narrow paths to fair maps through litigation. VRA challenges are still available where maps’ partisan gerrymanders also result in racial gerrymanders (or vice versa), but the outlook for many of these claims looks increasingly grim. Fifteen states have none of the aforementioned state law methods (an express prohibition in the state’s constitution or statutes or a free, equal, or open elections clause) of challenging partisan gerrymanders. Only one of these, Alaska, uses an independent commission to draw its maps. All of these states have compactness and contiguity requirements for state maps. Thirteen draw congressional maps, with two only having sufficient population for a single Congressperson. Nine of those require both compactness and contiguity in Congressional districts; two require contiguity without compactness. Two–including New Jersey–have no requirements for Congressional boundaries at all. All of these states require map drawers to preserve political subdivisions when drawing state legislative lines, as do all those states with requirements for Congressional boundaries. Seven must keep “communities of interest” intact. In these states, plaintiffs can challenge partisan gerrymanders that create abnormally shaped or sized districts or those that divide relevant communities on these bases, but can’t challenge the partisanship itself. In those cases, the kind of data that won the Ohio challenge wouldn’t be relevant. Claims of equal protection violations are possible, but rely on state courts choosing to interpret state constitutions’ guarantees more broadly than the federal constitution’s. Cases in Arkansas, Kansas, Kentucky, Maryland, Michigan, North Carolina, New Mexico, Nevada, and Pennsylvania are based on or contain claims that partisan gerrymandering violates individual equal protection, speech, and/or assembly rights.


The cases raised in Maryland rely on more general constitutional provisions, which themselves are broadly interpretable. Two challenges to the state’s Congressional map were consolidated and trial began in the Circuit Court of Maryland last week. Szeliga v. Lamone, alleges that the congressional map “violates Articles 7, 24, and 40 of the Maryland Declaration of Rights and Article I, Section 7 of Maryland’s Constitution by unconstitutionally infringing on Plaintiffs’ rights to free elections, freedom of speech, and equal protection and breaching the General Assembly’s obligation to pass laws ensuring the purity of Maryland’s elections.” (para. 2, Szeliga complaint) Parrott v. Lamone, claims that the congressional map “diminishes Plaintiffs’ rights to participate in elections for the U.S. Congress on an equal basis with other Maryland voters, in violation of Article 7 of the Declaration of Rights of the Maryland Constitution” and “violate[s] the requirements for district boundaries prescribed by Article III, Section 4 of the Maryland Constitution.” (para. 1, Parrott complaint) Each complaint points out violations of redistricting principles of compactness, contiguity, and preservation of political subdivisions. Parrott also objects to divisions of communities of interest. (para. 55) Article 7 of the Declaration of Rights contains Maryland’s “free” elections provision, while Articles 24 and 40 promise due process and free speech respectively. Article I, Section 7 of the state’s constitution requires its legislature to pass laws “necessary for the preservation of the purity of elections,” while Article III, Section 4 enumerates constitutionally required redistricting principles: “Each legislative district shall consist of adjoining territory, be compact in form, and of substantially equal population. Due regard shall be given to natural boundaries and the boundaries of political subdivisions.” A recent challenge to the state’s legislative maps, In re 2022 Legislative Districting, consists of several consolidated petitions by Maryland voters. Voters challenging one or more of the state’s legislative districts relied on the state’s redistricting criteria, focusing on issues like contiguity, compactness, and splits in political subdivisions. These voters connected the violation of these criteria with the partisan imbalance in the state’s map, stating that legislators ignored the criteria to create partisan advantage, thus violating Marylanders’ constitutional rights, including equal protection under law, due process, and free speech and association, as well as the “purity of Elections” guarantee in the state constitution, pointing to the same constitutional guarantees that arose in the congressional challenges.


To prevail in either of these cases, Maryland Republicans will have to show that partisan gerrymandering violates one or all of these general provisions, none of which prohibit partisanship in so many words. They could also prevail simply by showing that the challenged districts have failed to meet constitutional redistricting criteria, with the legislature dividing too many political subdivisions without giving them “due regard” or drawing non-compact districts. Whether evidence that the legislature opted to split political subdivisions for partisan reasons would indicate that such subdivisions weren’t given “due regard” is unclear.


It is possible for cases based solely on general constitutional principles to succeed. In a case that consolidated challenges against the 2016 maps, drawn following a judicial order to remedy racial gerrymandering, and 2021’s post-census maps, North Carolina’s Supreme Court invalidated its legislature’s proposed map. The ruling was based solely on general constitutional provisions “ground[ing]” the conclusion in “the text, structure, history, and intent” of four provisions from the state’s Declaration of Rights. The court determined that partisan gerrymandering violates the right to “[f]ree elections,” the “[r]ight of assembly and petition,” “[f]reedom of speech and press,” and “equal protection of the laws'' guaranteed by the state. Combining expert testimony showing “a systematic bias toward the Republican party” with its constitutional interpretation, the court struck down the map, concluding that “[t]he principle of political equality which we have articulated is a fundamental principle of our Declaration of Rights.” The partisan gerrymander that succeeded the racial gerrymander was also unlawful. For now, North Carolina courts are able to intervene and remedy unlawful partisan gerrymandering by the state’s legislature to preserve these general individual rights.


Post-Rucho, political parties find themselves in a gerrymandering arms race, unconstrained by federal law. Unless state law says otherwise, it’s open season. Ohio’s Republicans will find themselves checked by citizen-created constitutional provisions, while New Jersey’s Democrats seem free to create garish and bizarre districts (as do partisans in Alabama, Georgia, Kansas, Louisiana, Maine, Minnesota, Mississippi, Nevada, North Dakota, Rhode Island, South Carolina, West Virginia, and Wisconsin). Federal proposals to curb partisan gerrymandering are currently in traction, all but dead. In Steinhardt, Chief Justice Rabner stated that changing New Jersey’s system “would require a proposed constitutional amendment and voter approval. Those decisions can begin with grassroots efforts or the political branches of government. In the end, the choice is left to the people of our State.” Regardless of party, voters widely revile partisan gerrymandering. The people of the thirty-nine states without express statutory or constitutional prohibitions on partisan gerrymandering–especially the sixteen that permit lawmaking by citizen initiative–might be inclined to choose new methods of map-drawing if 2022’s redistricting cycle continues to yield nakedly partisan maps.


Go back to Part 1, here.