Redistricting Roundup: Feb 7, 2023

It’s Not Over: How Congressional Maps Could Change Before 2024

The House majority Republicans won in 2022 is so slim that many are eyeing an epic rematch in 2024, but as the Brennan Center’s Michael Li points out in a new piece, “There’s a big wild card in the mix: In a number of states, the maps used in 2022 may not be the ones used in 2024.”

He writes, “Some of the biggest changes could come in North Carolina and Ohio, two large states with long-running gerrymandering problems. In both, state courts threw out the original legislatively enacted maps as illegal partisan gerrymanders and ordered states to use different maps for the 2022 midterms. However, under the terms of both courts’ orders, maps will need to be redrawn for future election cycles. . . . State supreme courts in both states became considerably more conservative in the midterm elections. Those changes raise concerns about whether the courts will be as willing as their predecessors to enforce meaningful limits on gerrymandering. If not, both states could see a return to gerrymandered maps that make it harder for Democrats to win back the House majority.” 

States may also have to pass new maps depending on the results of federal lawsuits. “Before the midterms, federal judges in Alabama, Georgia, and Louisiana ruled that the Voting Rights Act required each state to create an additional Black congressional district. But the redrawing of the maps is currently on hold while the Supreme Court hears an appeal of the Alabama decision. If the court adopts a more restrictive interpretation of the VRA, as Alabama and conservative states and advocates urge, the lower court rulings could be overturned or effectively rendered moot. And even if the redraws do go forward, there could be further appeals that delay new maps,” Li notes.

A Surprisingly Nail-Biting House Race Despite Uncompetitive Maps

While the competition for the House majority was closer than expected, as the Brennan Center’s Chris Leaverton notes in a new piece, “it wasn’t because congressional maps overall were competitive. Rather, quite the opposite.” His analysis of election results found that the House majority came down to 30 House districts that were truly competitive, three-quarters of which were drawn by courts and independent commissions and only a handful by state legislatures under one party’s control. 

The analysis also found sharp disparities in competition by region: The South was remarkably uncompetitive, with only 1 percent of districts decided by 4 or fewer percentage points. By contrast, a quarter of congressional districts in the Mountain states were highly competitive. Leaverton writes that “the regional variations in competition can be explained at least in part by who drew the maps. The large percentage of competitive seats in the Mountain states was driven primarily by highly competitive new maps drawn by independent commissions in Arizona and Colorado, while in the South, the few districts that were competitive in 2022 were overwhelmingly on court-drawn maps in North Carolina and Virginia. In Southern states where partisan lawmakers drew maps, there was almost no actual two-party competition in the general election.”

Map & Litigation Trackers

The Brennan Center has two trackers you can use to keep up with the redistricting cycle: our Redistricting Map Tracker contains links to all of the newly passed maps, while our Redistricting Litigation Roundup outlines the pending legal cases over new plans.

All told, 73 cases around the country have challenged newly passed congressional or legislative maps as racially discriminatory or partisan gerrymanders — or both — as of February 1. Of these cases, 48 remain pending at the trial or appellate level.

Redistricting in the News

The North Carolina Supreme Court — which became more conservative in the midterm elections — has controversially granted Republican legislators’ request that it rehear Harper v. Hall, a case in which the court just last year found that the legislature’s congressional and legislative redistricting plans were unconstitutional partisan gerrymanders under the state constitution. Two justices dissented, with Justice Anita Earls calling the decision to rehear the case based on a change in the composition of the court a “radical break with 205 years of history.” The rehearing is scheduled for March 14.

A panel of federal judges in South Carolina ruled that the state’s First Congressional District, represented by Republican Nancy Mace, was an unconstitutional racial gerrymander that drew Black voters in Charleston out of the district to give Republican candidates an advantage. The judges gave the legislature until March 31 to submit an alternate map, but Republican lawmakers have appealed the case to the Supreme Court and asked that the ruling be put on hold until the appeal is decided. 

The Biden administration is proposing to add a new “Middle Eastern or North African” category to the 2030 census, as well as to combine currently separate questions on race and Latino ethnicity into a single question. Both moves are long-standing demands from community advocates. A working group is soliciting feedback on these and other changes to the census before it makes its final recommended revisions to the Office of Management and Budget by the summer of 2024.

In a new piece, the Brennan Center’s Kelly Percival and Clara Fong discuss the “chorus of support for reforms that would enhance the accuracy, equity, and legitimacy” of the 2030 census. A number of civil rights organizations have proposed Census Bureau reforms that would limit undercounts among communities of color, end prison gerrymandering, and make the census more accessible for non-English speakers and people with disabilities. 

The Utah Supreme Court agreed to hear a challenge to the state’s new congressional map, which several groups of voters claim was illegally gerrymandered to favor Republicans in violation of the state constitution. The state’s redistricting committee proposed several maps that legislators ignored, choosing instead a map that divides the populous Salt Lake County between all four of Utah’s congressional districts. Oral arguments have yet to be scheduled. 

In New Mexico, the state supreme court heard oral arguments on whether state courts have the authority to intervene in redistricting challenges brought under the state constitution. Attorneys representing the Democratic-controlled legislature argued that redistricting was “a political problem with a political solution” outside the purview of the courts under the New Mexico Constitution as written. Republicans argued that Democrats in the legislature ignored maps drawn by an advisory commission and chose a map that cracked Republican voters in the southern part of the state. The justices said they will issue their opinion “as soon as practicable.”

Republican legislators in Montana are criticizing the legislative maps proposed by the state’s bipartisan redistricting commission, arguing that the plans do not adhere to the state constitution nor the commission’s own rules. But some voting rights activists claim that the maps cannot be significantly altered because doing so would dilute the voting power of Native American communities, in violation of the Voting Rights Act. Separately, the legislature is considering a bill that would end prison gerrymandering, which disproportionately affects Native American communities across the state.

Black voters and advocates in Mississippi filed a federal lawsuit challenging legislative maps, claiming that the maps were drawn to dilute the influence of Black voters. Critics of the legislative maps say that Black voters were packed into a small number of districts that reduced their ability to influence elections outside of majority-Black districts.

A panel of state appellate court judges unanimously upheld a trial court ruling that stated New York’s advisory commission should be responsible for drawing revised New York State Assembly districts and submitting them to the Democratic-controlled legislature. The Republican plaintiffs in the case had argued that the assembly map had to be redrawn by a special master, just as state senate and congressional maps were.

Rep. Brian Fitzpatrick (R-PA) introduced democracy reform legislation that he hopes will gain bipartisan support. One of these bills, the CLEAN Elections Act (H.R. 157), would require states to use a congressional map drawn by an independent redistricting commission and make federal funding for elections contingent upon states using an independent commission for legislative redistricting. Fitzpatrick’s bill has been referred to the House Administration and Judiciary committees. 

You can find earlier editions of our Redistricting Roundup here.