In order to win back the House of Representatives, we need to gain a net of 5 seats from the Republican Party. I’ve already posted an overview of the entire House landscape for the 2024 election. It was very ambitious to write about so many different races at once! It was likely too full of information and difficult to read because of that. So, I’ve decided to break down the races into 4 categories.
- The #Beatable18 — the races we need to win to retake the House
- #SaveTheMajority — the races we need to defend to retake the House
- The #MAGADozen — the races we need to win to have a strong majority in the House
- TBD by the Courts — states and districts that have been or could be changed by the courts
Today is all about how the courts have shaped the race to control the 2024 Congress.
I will preface this article by saying that I am NOT an elections lawyer, or a lawyer of any type. If there is something incorrect, please call me out on it and try to explain what is wrong. I will then amend or correct this article to reflect more accurate information.
The courts are where disputes about the maps created by redistricting go to get settled. Whenever the plaintiffs feel the map is a partisan gerrymander or a racial gerrymander or even a VRA violation, it goes to an appropriate venue. Sometimes, that is a state court, and other times, it has to be a federal court.
At least 20 different states have had their Congressional maps challenged in various courts, which given the fact there are many states with only 1 district, is quite a bit. Some have only barely begun the litigation process, while others have completed their process (at least for now). I will cover each state that has legislation affecting the 2024 elections to the best of my ability. This is new territory for me, so I will rely a lot on news articles about the process in each state to help.
A great resource for redistricting cases and other elections related cases is Democracy Docket. Marc E. Elias has been working hard to ensure that election laws are being followed in all 50 states. Another resource to follow is Eric Holder and the Democratic National Redistricting Committee. Both law groups work redistricting cases, but they aren’t the only ones either.
Below the fold, I’ll start off with a Supreme Court case that thankfully went in our favor that could have torched nearly 250 years of precedent and upended elections law nationwide. Then, I will go state by state in alphabetical order to explain what stage the litigation is currently at, and what is at stake in each lawsuit. I will NOT prognosticate on how likely each lawsuit will be successful for our side, because that is beyond my purview.
I’m planning on writing between 65-70 election themed diaries next year. Please follow the #SaveTheMajority hashtag and the group Save the Majority so that you don’t miss information on the key down ballot races of 2024!
A final note: this is NOT a place to discuss your favorite redistricting process, or changing the redistricting process entirely. This is solely about the flawed system we have, and litigation that could change who controls the House of Representatives.
A Bullet Dodged: Moore v. Harper
Thankfully, the Supreme Court, in a 6-3 decision, decided against Moore v. Harper. The “independent state legislature theory” had no merit. Luckily, we dodged that bullet, with Amy Coney Barrett, Brett Kavanaugh, and Chief Justice John Roberts joining the three liberals against this case. The three other conservatives on the court — Samuel Alito, Neil Gorsuch, and Clarence Thomas would’ve voted to upend precedent and unleash the “independent state legislature theory” upon our elections.
What is the “independent state legislature theory”? This cracker jack box theory claimed that only state legislatures can decide election rules and voting rights within each state. That means the governor cannot veto them, and the state courts cannot rule against them. It would’ve led to the balkanization of election law in this country, with red states passing ever tighter restrictions on the right to vote and blue states expanding access where possible.
In regards to redistricting maps, many of the maps were court drawn or drawn by an independent commission. The “independent state legislature theory” may have led to many of those maps being struck down, and allow state legislatures to gerrymander the states without restriction. It may have also made the VRA unconstitutional, leading to loss of representation for voters of color.
Alabama: Supreme Court Saves the VRA in Allen v. Milligan
Alabama has elected only one Democratic member of Congress since the 2010 red wave election. Black voters make up roughly one-third of the population, but only have one packed Congressional district for representation. Multiple plaintiffs sued using Section 2 of the Voting Rights Act, citing this disparity and racially polarized voting patterns in the state.
A district court found the initial Congressional map unconstitutional, and ordered the maps redrawn. Alabama would ultimately appeal all the way up to the US Supreme Court, looking to strike down Section 2 of the Voting Rights Act entirely. It was widely expected that the VRA was doomed, with a 6-3 or 5-4 partisan split against the law.
However, that’s not what happened. Justice Brett Kavanaugh and Chief Justice John Roberts sided with the three liberals on the Court to uphold Section 2 of the VRA, thus also upholding the fact that Alabama needed to redraw its Congressional map. Allen v. Milligan was an important decision for voting rights, and it has repercussions in many of the redistricting lawsuits found below.
The saga doesn’t end there, however. Alabama initially defied the order to redraw their maps correctly, choosing to make a few changes but not create another district where Black voters could choose their representative. The courts got tired of the defiance quickly, and stepped in to draw the map found on the right above. Alabama appealed this decision to the Supreme Court, but they were not interested in relitigating this case and rejected the appeal.
This means that Alabama is likely to elect 2 Black Democratic members of Congress in 2024, for a Democratic gain. Alabama’s 2nd district will likely flip from a seat held by Rep. Barry Moore to one held by the winner of a crowded Democratic primary. It is a D+4 seat in a racially polarized state, so it should be safe. Rep. Barry Moore decided to challenge fellow incumbent Rep. Jerry Carl for the redrawn 1st district of Alabama.
Arkansas: A Case of Racial Gerrymandering?
Arkansas hasn’t elected a Democratic member of Congress since the 2010 red wave swept through the state, with the last district flipping in 2012 and the last Senate seat flipping in 2014. However, the 2nd district of Arkansas became mildly competitive at the end of last decade. In response, the Arkansas state legislature carved up the heavily Black population of Little Rock among 3 different districts. That shifted the 2nd district to a safer configuration while keeping the other two safe too.
Plaintiffs sued Arkansas, alleging that the Congressional map was a racial gerrymander by moving Black precincts from the 2nd district to the 1st and 4th districts. A judge did not dismiss the case for the Congressional map, and that is the only action I have found on it so far. But a different case below has far-ranging implications.
A district court threw out part of the lawsuit for the state legislative seats in October 2022, but allowed the plaintiffs to amend their suit to match the claims that survived. The case was dismissed in June 2023, but the plaintiffs appealed to the 8th Circuit. In what could be a disastrous ruling, the 8th Circuit upheld the dismissal of the state legislature case, deciding that private citizens or groups cannot sue under Section 2 of the Voting Rights Act — basically gutting it. Only the Department of Justice can sue under this interpretation. It was a 2-1 decision handed down in November 2023, and it will almost certainly be appealed. The next stop seems to be a ruling by the entire 8th Circuit.
Florida: Dismantling of A Protected Seat?
Florida passed one of the most egregious gerrymanders after 2020 redistricting, eliminating 3 Democratic seats and adding 4 Republican ones (Florida gained a seat after the 2020 US Census). One of the districts they dismantled was the old 5th district of Florida, which stretched from the Tallahassee area to the Jacksonville area. It was the subject of litigation last decade, where it was found that a district should be made there that allowed Black voters to vote in their preferred candidate.
Plaintiffs sued in the state court system, looking to overturn the entire map as unconstitutional. Eventually the lawsuit was whittled down to just the dismantling of the old 5th district. A district court for the state of Florida ruled that what happened to the district after redistricting violated the Fair Districts Amendment, specifically the clause that disallows diminished minority voting power. This ruling came down in September 2023, and was stayed pending an appeal. A Florida appellate court found the maps constitutional, so it looks like there will be no change.
This case is now before the Florida Supreme Court, and it is unknown how the Court will rule. This case is on an expedited schedule so that a ruling can come in early January 2024, to allow time for more litigation and a redraw of the Congressional map if necessary.
If the Florida Supreme Court declines to take the case or upholds the Appeals Court ruling, the Fair Districts Amendment is greatly weakened and the map will not change. If the lower court ruling is upheld, we will have a Democratic gain of one seat. The old 5th district would return, and one of Rep. Aaron Bean or Rep. John Rutherford would lose their place in Congress.
Georgia: Inadequate VRA Representation Found?
The state of Georgia has seen plenty of growth in the last couple of decades, and most of that growth was in minority voters. It led to the Democratic Party flipping two seats late in the 2010s with Rep. Lucy McBath and Rep. Carolyn Bordeaux. The Georgia state legislature strived to eliminate one of those two incumbents, and drew the map found on the left in order to do so.
Plaintiffs sued almost immediately, citing that the growth in the state was from minority voters thus there should be another majority Black district drawn in the Atlanta metro area. This case was on hold while Allen v. Milligan was being decided, and it looked like there would be more delays. Finally, the case went to trial and a judge ruled in October 2023 that the maps were indeed a violation of the VRA, and demanded a redraw that included a majority Black district west of Atlanta.
Now comes the tricky part. The judge also hinted that dismantling the current 7th district in order to keep the same ratio of Republicans to Democrats would also be impermissible. Georgia decided otherwise, and dismantled the current 7th district to make the 6th district west of Atlanta. Thus, as of right now, there is no change — but it is possible this map will be struck down too. The next hearing on the legality of the new map is TODAY.
Georgia has technically complied with the court order after convening a special legislative session to redraw the maps. However, there are rumblings that Georgia plans to appeal and seeks to be the case that ends Section 2 of the VRA for good in front of the US Supreme Court. If the new map is struck down and is court drawn, we have a Democratic gain of one seat. If it is found to be constitutional, there will be no change.
Kentucky: NOT An Illegal Partisan Gerrymander
The state of Kentucky has two large concentrations of Democratic voters — the Louisville metro area and the Lexington metro area. The Louisville metro area is large enough to anchor its own Congressional district, but the Lexington metro area isn’t. A competitive seat in the area could be created by pairing Lexington with some nearby counties, and that happened in 2010 redistricting.
The state GOP sought to make the 6th district of Kentucky safer by removing Frankfort and burying it in the noncompetitive 1st district as shown above. Gov. Andy Beshear vetoed the map, but the state legislature overrode his veto. Plaintiffs sued in state court, arguing that the map was an impermissible partisan gerrymander.
The state circuit court judge ruled that the map did NOT violate the state constitution. The plaintiffs immediately appealed the decision to the Kentucky Supreme Court. That court heard oral arguments in September 2023 and a decision on this lawsuit was released last week. Again, the districts drawn did NOT violate the state constitution. Thus, there will be no change to the map.
Louisiana: The Next Map to be Redrawn — Robinson v. Ardoin
Louisiana did not see a change in the number of seats it has, so it was expected that the state legislature would even out the population numbers and that would be that. Instead, the map got challenged in federal court, with plaintiffs arguing that Black voters make up a third of the state’s voters but only are packed in one Black majority district.
Robinson v. Ardoin was filed in federal court, and a district court found the map to be unconstitutional in June 2022. The case was found to be similar enough to the Alabama case above that the Supreme Court froze the case until it heard and decided Allen v. Milligan. When that case was decided, the Supreme Court lifted the stay on the decision and the case could proceed.
In November 2023, the 5th Circuit agreed with the lower court ruling that this was an impermissible map, and set out a timeline for the state legislature to draw a remedial map. It is expected that the state legislature will defy this order and that the courts will step in after the January 30 deadline. It is expected that the state will appeal the new map, and the 5th Circuit anticipated that in their ruling.
Louisiana is already trying to stall for time. They are looking to get the entire lawsuit dismissed in front of the 5th Cicruit Court based on the 8th Circuit Court’s ruling that only the Department of Justice can bring VRA lawsuits. Even the 5th Circuit didn’t buy that argument, and rejected a rehearing of the case.
It is expected that the current 5th district will be redrawn to become the new Black majority district. That means Rep. Julia Letlow would be the incumbent sacrificed for a Democratic gain of one seat. However, given poor participation in Louisiana elections, it is possible to draw a map that satisfies the criteria and still is competitive for Letlow.
New Mexico: A Case Against Democratic Party Gerrymandering Went Thud
The Democratic Party in New Mexico won a trifecta with a progressive majority in the 2020 elections. The state legislature departed from how the lines were traditionally drawn in the state in an attempt to make the 2nd district (in purple above) more liberal. They created a swing seat that was flipped by Rep. Gabe Vasquez in a narrow fashion in the 2022 elections.
The state GOP sued in the state court system, arguing that the map was an impermissible partisan gerrymander which violated the state constitution. In October 2023, a state circuit court judge found the maps legal. The plaintiffs appealed to the New Mexico Supreme Court, where oral arguments were heard in November 2023. The Court at the end of November unanimously ruled that the map did NOT constitute a partisan gerrymander.
The 2nd district was what was at stake here. The mapmakers weakened the 1st and 3rd districts to get the 2nd district to where Biden narrowly won it. The seat is still at risk of flipping in any election, but it didn’t revert to the map on the left, where it was almost sure to flip back to the GOP. There is no change to the map, and Rep. Gabe Vasquez breathes a sigh of relief.
New York: Fights About the Redistricting Process
New York has a convoluted bipartisan redistricting process. There is an Independent Redistricting Commission, but it has equal numbers of people from both political parties. That leads to a hopelessly deadlocked commission. The IRC submitted both maps for review to the state legislature, but those maps were rejected.
The state legislature then drew their own gerrymander that would have seen many Republicans eliminated. This map was found unconstitutional by a (judge shopped) state circuit court in 2022. The Court of Appeals agreed, and the court appointed a special master to draw maps for the 2022 elections. That helped lead to the GOP gaining many districts in the New York delegation.
That isn’t the end of the saga. The New York Democratic Party sued, stating that the court drawn maps are temporary and should only be used for the 2022 elections. A state court found this to be the case. Another state court also ruled that the maps should be temporary, but that the IRC was negligent in not doing their duty to propose a second round of potential maps for consideration.
This complicated case is now before the New York Court of Appeals, which is the highest court in the state. The composition of the court has changed since the previous case, and the court is much more liberal. To complicate things further, one justice recused herself and the substitute is a much more liberal judge.
This case is all about the process used and whether or not the lines can be redrawn. It is possible that the saga will continue after the 2024 elections when plaintiffs challenge the maps, if they are redrawn, as an illegal partisan gerrymander.
The high court heard oral arguments in November 2023, and a decision has been given — the districts MUST be redrawn!
There are HUGE implications for this redistricting case. The IRC will submit another set of maps. It is possible that they are rejected by the supermajority state legislature again, and another gerrymander will be drawn. This could endanger 4-7 GOP incumbents, although Long Island has been a Democratic danger zone for the 2022-23 elections and that could limit the gains. I expect a 3-4 seat Democratic gain based off this one decision, with the map not being as aggressive as the one submitted in 2022. We will know more once the process plays out.
North Carolina: The Golden Goose of GOP Redistricting
North Carolina seems to use new maps in every single election lately. That was the case in 2020, when the ugly gerrymander was struck down by the North Carolina Supreme Court for violating state law on partisan gerrymandering. That led to fairer maps where the Democratic party made several gains in seats.
The state legislature is a slow learner, because they enacted equally atrocious maps for the 2020 redistricting cycle. Once again, they were struck down by the North Carolina Supreme Court and a special master was appointed to draw fair maps. That led to a 7-7 delegation after the 2022 midterm elections, which is about right for this swing state.
Normally, the redistricting saga would end there, but the GOP captured the North Carolina Supreme Court, leading to a 5-2 GOP majority after the 2022 midterm elections. The new court took the unprecedented step of reviewing the redistricting case handed down in the prior term. This court reversed their own decision in 2023, stating that partisan gerrymandering is non-justiciable, and allowing the state legislature to redraw the lines.
The result of this new map will be that the GOP will eliminate Democratic incumbents for a 3 seat Republican gain. Rep. Wiley Nickel, Rep. Kathy Manning, and Rep. Jeff Jackson will not have viable districts to run in. A fourth Democratic incumbent, Rep. Don Davis, has been given a much worse swing seat that is rapidly trending away from us. He could be a casualty as well.
That isn’t the end of the saga as of yet. The state senate map is already being challenged in federal court. The Congressional map is also being challenged in federal court for racial gerrymandering. It could be that the VRA changes the map yet again for North Carolina in 2026.
Ohio: The Status Quo is Preserved (For Now)
Last decade, Ohio was one of the worst gerrymanders in the entire nation. In response to this, the voters passed a weaksauce Ohio Redistricting Commission and some guidelines to how districts can be drawn. There was an emphasis on not splitting counties or cities, and partisan maps could only last 4 years. The proposed map was passed along partisan lines 5-2, meaning it expires in 2026.
However, the Ohio Supreme Court found the enacted maps unconstitutional, but also that they lacked the authority to impose a new map. That led to a cat and mouse game where the Ohio Redistricting Commission would make minimal changes, the map would be struck down again, and the cycle would repeat. The clock ran out, so the illegal maps were used for the 2022 elections thanks to a federal court ruling.
The GOP replaced the swing justice in the case with a MAGA hardliner after the 2022 elections, and Democratic onlookers feared the worst. The US Supreme Court directed the Ohio Supreme Court to take another look at the Congressional maps. The plaintiffs asked for the high court to dismiss the lawsuit, and that is exactly what happened. The illegal maps from 2022 are still in force, but the risk of a redraw was too high. The status quo was preserved for now.
The map will expire for the 2026 elections, and one of two choices will happen. The Ohio Redistricting Commission (dominated by Republicans) could redraw the maps — this time without limits from the new Ohio Supreme Court. Or, the better option could be that a true independent redistricting commission amendment could pass with the voters, and a fair map could be drawn in the state. The stakes are truly high for free and fair elections in Ohio!
South Carolina: The Case to Decide Racial Gerrymandering; Alexander v. SC State NAACP
South Carolina has six Republican representatives and one Democratic representative in Congress. Other than right after the 2018 blue wave, when the 1st district fell to the Democratic Party, that has been the case ever since the state gained a Congressional district after the 2010 US Census. South Carolina has racial polarization, so the redistricting process was scrutinized after the 2020 Census.
The state wanted to prevent the 1st district from falling to the Democrats again, so it moved about 30,000 Black voters to the nearby 6th district, as well as some liberal white voters in the Charleston area. This prompted plaintiffs to sue in federal court, alleging that these changes were an impermissible racial gerrymander.
A district court ruled that the Congressional map was indeed a racial gerrymander in a January 2023 ruling. The state appealed the decision, and the case was taken by the US Supreme Court for the fall 2023 term. Oral arguments were heard in early October, and a decision is expected in January.
The 1st district of South Carolina is what is at stake. Right now, it is a solid GOP seat. If the ruling is upheld, the 1st district becomes a reach swing seat that we could win. If the racial gerrymandering guidelines are tightened or struck down, that could make it much more difficult to successfully challenge maps that are racial gerrymanders. The stakes are very high in this case!
Tennessee: Another Racial Gerrymander?
The Tennessee state legislature did what other GOP dominated states only discussed and dreamed about doing — they eliminated a Democratic seat based in an urban area and put in its place a safe GOP seat after cracking Nashville three different ways. This led to the GOP gaining one seat, which in an evenly divided House could make all of the difference.
In August 2023, plaintiffs in Nashville filed a lawsuit alleging that the Congressional map is a racial gerrymander because they split the Black voters of that city into three different districts — thus depriving them of electing a representative of their choice. No action has been taken on this lawsuit so far, and what happens to it may depend in part on what the Supreme Court rules in the South Carolina case.
If the districts are found to be illegal, it is likely that a Nashville based district would be restored to allow voters of color to elect a representative of their choice. This would result in reversing the gain the GOP made in 2022, for a one seat Democratic gain. It is doubtful that this case will be resolved in time for the 2024 elections, given the late date it was filed.
Texas: Delay… Delay… Delay…
Texas Republicans are pros at drawing ugly gerrymanders. Their map last decade almost was a dummymander, with many incumbents barely winning in both 2018 and 2020. The Democratic Party also flipped two seats in the 2018 blue wave election. To rectify this situation, Texas drew an even more ugly and extreme gerrymander for the 2020s. It is the ugly map to the right.
The Department of Justice filed a lawsuit in late 2021 seeking to strike down this map using Section 2 of the VRA. They alleged that Black people and Latinos comprised the majority of the growth of the state, but they received no new districts in the 2020s map. This is a case very similar to the case in Georgia, where similar growth led to the map being struck down by a district court.
Very little action has been taken on this lawsuit, despite it being filed nearly two years ago. The Texas Tribune describes the delays as follows:
The Texas redistricting case remains delayed, with the state working to keep secret many of the private communications lawmakers engaged in while drawing new maps.
The federal three-judge panel considering the case canceled a September 2022 trial a month before it was set to begin after disputes over discovery left both the state and the various plaintiff groups questioning whether they’d have enough time to prepare to make their cases in a federal courtroom in El Paso.
At issue are subpoenas and motions to compel certain documents from legislators and third parties. The state and the plaintiffs are also quarreling over lawmakers’ assertions during depositions of what’s known as legislative privilege, which allows legislators to keep secret their communications on policy along with their “thoughts and mental impressions.”
Those disputes have been further complicated — and delayed — by legal wrangling over discovery in a separate lawsuit challenging the sweeping voting law, known as Senate Bill 1, that lawmakers passed in 2021. In that case, state legislators withheld certain materials, also citing legislative privilege, and then turned to the 5th U.S. Circuit Court of Appeals when a district judge largely rejected their privilege claims and ordered them to hand over about 220 documents.
The 5th Circuit’s ruling, allowing lawmakers to keep those documents hidden, didn’t come until last month.
The plaintiffs in the redistricting case now plan to file briefs to determine how much the 5th Circuit’s ruling should affect their discovery. There are still more than 10 separate pending motions related to discovery in the case.
So this map is unlikely to change in 2024 and possibly even in 2026. The state of Texas is delaying as long as possible to keep the ugly and probably illegal maps in place.
Utah: Another Illegal Partisan Gerrymander?
In 2018, Utah voters narrowly passed Proposition 4, which created an “independent redistricting commission” and “anti-gerrymandering” legislation. That has largely been ignored by the state legislature, although there was compromise legislation passed in 2020 by the state legislature. It was set to go into effect for the 2020 redistricting cycle.
Plaintiffs sued, alleging that the new Congressional map, which splits Salt Lake County four ways, is unconstitutional because it violates what was passed in Proposition 4. The state legislature argued that the changes made in the statute reflect that the people and the legislature have co-equal powers to shape the law.
Oral arguments were heard before the Utah Supreme Court in July 2023, but a decision is still pending. If the maps are struck down, the state legislature would be directed to draw a map that has a district solely contained in Salt Lake County. At worst, a swing seat would be drawn — but it is more likely that the state legislature would have to concede a district for a Democratic gain.
Wisconsin: Schrodinger’s Redistricting Case
The state of Wisconsin is deadlocked between a near GOP supermajority in the state legislature and Gov. Tony Evers, a Democratic governor. That led to a court drawn status quo map for the 2020 redistricting cycle, in which 6 members of the GOP and 2 Democratic Party members were elected to Congress. Our problem in Wisconsin is that we are packed into Madison and Milwaukee and it is easy to draw our voters into just two districts.
The state legislative maps have already been challenged at the Wisconsin Supreme Court level. You can tell that the state GOP is afraid because that hit dog was hollering about impeaching liberal justice Janet Protasiewicz just as she joined the court. Many districts are not contiguous, and that is how the state legislative map is being attacked in court.
As for the Congressional map, there hasn’t been a lawsuit filed challenging the map as of writing this article. It seems like the Democratic Party wants to redraw the maps, but is waiting for the state legislative case to be over. It could be that they don’t like their chances of overturning the map even with a friendly Wisconsin Supreme Court, or it could be that because of geographic sorting this is the best map possible without splitting Madison and Milwaukee — which a court is unlikely to do.
Conclusion
If you’ve survived reading about all of these redistricting sagas, I want to thank you. It took me about a week of research to write this article, and I am sure I still got some things wrong. Redistricting cases are complicated affairs, and I am no expert at it! Each state has its own twists and turns, and what is written here could be obsolete with the next court decision.
Something to especially watch out for is the Arkansas state legislature case that was recently decided at the 8th Circuit level. I cannot stress how damaging that 2-1 ruling stating only the federal Department of Justice can bring Section 2 VRA lawsuits against the states is. It is the perfect opportunity for the Supreme Court to effectively strike down the VRA without striking it down entirely. Of the 182 successful Section 2 cases in recent decades, only 15 were successfully litigated solely by the Department of Justice.
As of right now, based on the cases that have progressed enough to be decided, redistricting for the 2024 election is likely to benefit us. We lose 3 districts in North Carolina, but the big prize is New York, which will possibly offset North Carolina by itself. Then, we gain a seat in Alabama and likely in Louisiana. The wild cards are Georgia, Florida, and Utah. We could gain a path to a House majority just through favorable rulings in redistricting cases!