● Pennsylvania: On Monday, Pennsylvania’s Supreme Court released new congressional districts created by Stanford Prof. Nathaniel Persily to replace the state’s old, Republican-drawn boundaries, which were struck down as an illegal partisan gerrymander in violation of the state constitution’s guarantee of “free and equal” elections. These new lines will not only allow for much fairer elections, but they’ll also improve Democrats’ chances of taking back the House this November.
In ordering a new map, the court laid down particular nonpartisan criteria it wanted the legislature to follow: Any new districts should be both compact and limit the number of cities and counties split between districts. Republican legislative leaders refused to pass a new map of their own, though, so the court turned to Persily for guidance.
Persily’s map, which is shown at the top of this post (click here for a larger version), complies with both of the court’s criteria by any standard measures. But most interestingly, the court appears to have deliberately adopted a map that should give both parties a shot at winning a comparable number of seats, as befits Pennsylvania’s swing-state status. In other words, this map isn’t just nonpartisan, it’s fair.
According to calculations from political scientist Brian Amos, these redrawn lines contain 10 districts won by Donald Trump in 2016 versus eight carried by Hillary Clinton. Given that Trump carried Pennsylvania by just a 48.2 to 47.5 margin, that’s a much more equitable distribution than the invalidated map’s 12-to-six split. This new map could consequently give Democrats a much better chance of winning six districts that Republicans currently hold, something we previously predicted. Overall, the changes are quite dramatic, so to help you get up to speed, Daily Kos Elections has extensively analyzed how this new map will affect each particular House race in 2018, and we’ve also calculated of a whole host of data related to the new districts.
Many Republicans instantly decried the court’s map as a Democratic gerrymander, but that knee-jerk response fails to grasp what a “gerrymander” actually is. Partisan gerrymandering requires an actual intent by one political party to draw a map favoring itself over another party. The intent behind this new map, by contrast, seems to be to ensure that party that wins the most votes wins the most seats, which is a far cry from giving Democrats an institutional advantage over Republicans. And furthermore, common statistical measures designed to gauge partisan advantage find the new map still has a slight GOP lean, just not anywhere near as extreme as the old—and illegal—map.
Overall, the court’s map is an enormous victory for democracy over one of the most extreme partisan gerrymanders of the modern era. Consequently, it gives Democratic candidates a much fairer chance to win half (or perhaps even more) of Pennsylvania’s congressional seats if they win a majority of votes statewide. Notably, that did not happen in 2012, when the GOP’s now-invalidated gerrymander produced a 13-to-five Republican majority even though Democratic candidates for the House received more votes, so this map corrects a grave injustice.
However, Republicans are not giving up their fight to keep on gerrymandering. In an utterly dismaying assault on the rule of law, Pennsylvania Republicans at all levels are now advocating for the impeachment of the judges who ruled against their gerrymander. This extreme reaction is aking to the sort of power grab we see when authoritarian governments dismantle democratic instutitions they dislike, just as the radical-right is currently doing in Poland. We shouldn’t have to say that this is something that should never happen in America. But Sen. Pat Toomey, Rep. Ryan Costello, and the chair of the state Republican Party have all now floated the idea of impeachment, while GOP legislative leaders have refused to rule out the idea.
And thanks to their gerrymanders of the legislature itself, Republicans hold the bare minimum of seats needed to impeach judges without any Democratic votes. Should they proceed with (and succeed with) this supremely destructive effort, Republicans still wouldn’t gain much unless Gov. Tom Wolf, who’d have the power to appoint replacements, loses this November. But Wolf is favored for re-election, so the chief effect of all this Republican braying is to simply undermine faith in civil society—the very last thing we need in this day and age.
As a practical matter, the only thing holding the GOP back, though, is fear of a possible backlash to such a nakedly partisan attack on the judiciary. With plenty of vulnerable Republicans (and vulnerable Republican open seats) up for election this fall, impeachment proceedings may therefore never launch.
But the fact that top Republicans like Toomey are even bringing up the idea is an ominous sign for the rule of law. As Daily Kos Elections' Carolyn Fiddler has documented, Republicans in states across the country have tried for years to usurp control from the courts and other independent bodies in response to decisions that constrained their powers. And even if Republicans don't follow through with impeachment, the mere threat sends a chilling message to judges that they could be removed from the bench simply for their jurisprudence, while at the same time undermining the legitimacy of the judicial system in the eyes of Republican partisans.
Republicans are also waging an appeal to the U.S. Supreme Court, which they’re asking to stay the state court's ruling, even though an earlier request on the same grounds was denied. Concurrently, they have also filed a new lawsuit in federal district court seeking an immediate injunction against the new map. This three-judge district court panel is composed entirely of Republican appointees, but these judges nevertheless denied the request for an immediate injunction and set a hearing for March 9 over whether to issue a temporary restraining order. But since that date falls squarely during the candidate filing period, it’s unlikely the court would reach a different conclusion then.
In their last-ditch effort to thwart the state Supreme Court, Republicans are relying on an argument that the U.S. Constitution's Elections Clause prevents state courts from interfering with how legislators draw congressional maps, but notably, the GOP-run legislature refused to even pass a map after the court gave it the opportunity to do so. Furthermore, an important U.S. Supreme Court ruling from 2015 previously held that the Elections Clause's use of the word "legislature" simply means those with the power to make laws—not just elected lawmakers themselves—and indeed, several other states currently have had maps drawn by their state Supreme Courts when legislators failed to act.
Republicans also argue they weren’t given enough time to act, but even though they didn’t actually pass a new map when asked to do so by the court, they did find the time to create an alternate plan they submitted for the court’s consideration, which undermines that claim. Most ominously for the GOP, arch-conservative Justice Samuel Alito already refused to stay the Pennsylvania court's initial ruling after Republicans appealed to the U.S. Supreme Court before the new map was released. Consequently, there likely isn't a majority on the high court’s bench that would side with the GOP.
There's one other way Republicans could try to have courts block the new map: a lawsuit alleging that the state court violated Section 2 of the Voting Rights Act by diminishing the political power of black voters, even though the map still maintains one black-majority district in Philadelphia. Indeed, GOP Rep. Ryan Costello cynically called the new map "racist" because it lowered the black proportion of the voting age population in Pennsylvania's old 1st District from 32 percent (under the invalidated map) to 23 percent under the court's new map, which renumbered the successor seat as the 2nd District.
However, the GOP's newfound preoccupation with black voters’ rights is truly a stunning display of chutzpah solely intended to promote their partisan interests, because it was Republicans who diluted the black population in the old 1st District back when they passed their (now-invalid) 2011 gerrymander. The pre-2011 1st District was 44 percent black and just 30 percent white, but Republicans redrew it to become 47 percent white and 32 percent black with their 2011 gerrymander. The GOP reportedly did this to protect white Democratic Rep. Bob Brady from a black challenger in exchange for Brady pressuring some Democratic state legislators to vote for the GOP's gerrymander, which they did. (In an ironic twist, Brady has now announced his retirement, amidst a federal investigation alleging he illegally funneled money to a black primary opponent in 2012 to get him to drop out.)
Even Costello's far-from-genuine concerns about Philadelphia's districts rely on a twisted interpretation of the Voting Rights Act. Back in 2009, the U.S. Supreme Court ruled in a case called Bartlett v. Strickland that Section 2 of the VRA only protected compact minority populations if they could realistically be drawn so that a single minority group would comprise a numerical majority of the voting-age population. Election expert Michael McDonald explains that Bartlett means there can't be a Section 2 claim if it is impossible to draw two Philadelphia-area districts where an outright majority of adults in each district are black, which effectively is the case.
Ironically, Democrats and the liberals on the U.S. Supreme Court actually opposed the holding of Bartlett, because an outright majority is almost always unnecessary to elect the preferred candidates of black voters as long as enough voters from other racial groups prefer the same candidates. But there’s still some wiggle room here. Even though Bartlett requires that it be possible to draw a district where a minority group makes up a majority of the voting-age population, map-makers don’t actually have to hit that majority threshold .
Rather, such districts need only be drawn to encompass a minority proportion that is sufficient to let that minority group elect its preferred candidates—and that proportion can be below 50 percent. (In some cases, it could even be below 40 percent.) Indeed, an amicus brief by Stephen Wolf and longtime Pennsylvania resident Adele Schneider submitted to the Pennsylvania Supreme Court proposed two compact Philadelphia-based districts where black adults would have been just shy of outright majorities in both districts, but both seats likely would have elected black voters’ preferred candidates.
Consequently, there’s a legitimate concern that the new court map will diminish the power of black voters compared to the pre-2011 map, which was the last legal plan in force in Pennsylvania. That’s especially the case because white Democratic Rep. Brendan Boyle is running in the new 2nd District. But Bartlett makes it nearly impossible for plaintiffs to succeed with such a lawsuit. Indeed, Common Cause and the NAACP have announced that they will not bring such a case, and Republicans have so far not done so either despite their cynical proclamations that the new map is discriminatory.
Yet even if the GOP attempted a VRA lawsuit, it could take years to resolve (like the case in our Texas item below), since plaintiffs would have to prove that the new map substantially diminished the ability of black voters to elect their preferred candidates. That’s a tall task, since many white voters in Philadelphia have long shown they’re open to supporting the same candidates preferred by black voters. (In many Southern states, by contrast, it’s easier to demonstrate this because voting tends to polarize along racial lines.)
And here’s how else we know all these howls of “impeachment” and “racism” are bogus: Republican lawmakers have long blocked a bill that would create a bipartisan redistricting commission from even getting a hearing, even though most members in the GOP-majority state House have signed on as co-sponsors. Now that the court has effectively undertaken redistricting reform for them, Republicans are finally relenting and have agreed to hold a hearing on the bill on March 27. But this Johnny-come-lately routine only comes after the court threw out the extreme gerrymander that was in use for the last three elections and replaced it with one that doesn't disadvantage Democrats as badly.
In the end, while Republicans are desperately asking the federal courts to intervene, they are unlikely to succeed. Therefore, the state Supreme Court’s new map is almost certain to be used in the 2018 midterm elections. Not only has this map struck an historic blow against partisan gerrymandering, it also demonstrates how courts can actively try to promote partisan fairness even while still adhering nonpartisan redistricting principles. Since all but one state constitution have some guarantee of the right to vote, Pennsylvania’s landmark case could serve as a template for how state courts can fight back against gerrymandering when the federal courts fail to do so.
● Georgia: The nonpartisan Lawyers' Committee for Civil Rights Under the Law has filed for a preliminary injunction in its lawsuit against Georgia's GOP-led state government alleging that Republicans engaged in racial gerrymandering with their 2015 mid-decade redrawing of the state House map. If the court agrees, Georgia wouldn’t be permitted to hold its 2018 elections under the 2016 maps in a handful of districts the GOP rejiggered to protect Republican seats by packing Democratic-leaning black voters into neighboring districts. The Eric Holder-led National Democratic Redistricting Committee is also waging a similar lawsuit over these same maps.
Legal challenges alleging that largely GOP mapmakers improperly used race when drawing districts have met with mixed-to-positive success in recent years. While the Supreme Court has been somewhat willing to allow challenges to districts in several other Southern states that diluted black voting strength, the ultimate impact of these decisions has been sharply limited, because in almost every case, Republican legislators and governors have had the sole power to determine what any new districts should look like. That would also hold true in Georgia, unless the suit were to remain unresolved until next year and Democrats reclaim the governorship in the interim.
● North Carolina: Opponents of GOP gerrymandering have now filed an entirely new lawsuit in state court seeking to block the GOP's mid-decade effort to redraw four of the 11 state House districts in populous (and Democratic-leaning) Wake County to their benefit. These plaintiffs are relying on a North Carolina state constitutional provision that bans the redistricting of legislative lines more than once each decade following the decennial census, something only federal law (such as a court order) can supersede.
As we have previously explained, the districts in this new lawsuit were gerrymandered by Republicans when they redrew the maps in 2017 to comply with a court order that struck down a number of other seats as racially gerrymandered, even though these particularly districts did not need to be adjusted to satisfy that order. The U.S. Supreme Court had previously stayed part of a federal district court ruling that relied on the state constitution to block these mid-decade gerrymanders, forcing the plaintiffs to seek relief in state court. However, a state court panel in a parallel racial gerrymandering lawsuit recently ruled that plaintiffs should file a new lawsuit.
This new case, therefore, seeks a preliminary injunction against these four newly redrawn districts, which would force the North Carolina GOP to revert back to the previous versions of these seats. Candidate filing has already begun and concludes on Feb. 28, however, so it's unclear if the courts will be willing to disrupt the regularly scheduled election cycle as the plaintiffs are asking. Democrats do hold a majority on the state Supreme Court, though, so while that doesn't guarantee them success, it at least gives them a fair shot to make their case should an appeal advance that far.
● Texas: The Supreme Court has added a major racial gerrymandering case out of Texas to its calendar this term, with oral arguments set for April 24. Republican lawmakers are appealing two combined lower court decisions that struck down their congressional and state House maps for intentionally discriminating against black and Latino voters, which the Supreme Court had previously stayed pending appeal. This upcoming decision could clarify some of the major unresolved questions regarding racial gerrymandering law and also finally give some closure to the state of Texas.
But even if the plaintiffs prevail, a ruling likely wouldn’t come before June, which could be too late in the election cycle to force the GOP to redraw the state’s districts in time for the November midterms. Stunningly, this case has now been dragging on for seven years, proving once again that even if Republicans ultimately get smacked down by the courts, they can get away with a whole lot in the meantime.
● Wisconsin: Wisconsin recently held a primary for an upcoming election to replace a conservative member of the state Supreme Court, where conservatives currently hold a five-to-two majority over the liberal bloc, and even though the balloting was officially nonpartisan, the results were positive for liberals. Conservative candidate Michael Screnock took just 46 percent against a pair of liberals: Rebecca Dallet, who took 36 percent and has been running more of a nonpartisan campaign, and Tim Burns, an outspoken liberal who captured 18 percent.
Burns quickly endorsed Dallet, and now she and Screnock now advance to the April 3 general election. The overall 54-46 lead for liberal candidates among all voters in the first round consequently puts Dallet in a strong position to prevail.
While Daily Kos Elections has long argued that electing judges is terrible for democracy and impartial justice, a Dallet victory is still key for fighting partisan gerrymandering (and possibly other Republican efforts to suppress the vote). Conservatives held a majority on the court in 2011, which thwarted Democrats’ ability to sue to block the maps in state court, forcing them to pursue a much lengthier federal case that only now has reached the U.S. Supreme Court.
Screnock himself personally worked for the GOP on this redistricting litigation, and there should be little doubt he'd side with Republicans in lawsuits over future gerrymanders. If Dallet succeeds and liberals can gain a fourth seat before 2021, a new liberal majority on the court could enable Wisconsin to follow the path of Pennsylvania and find that partisan gerrymandering violates the state constitution.
● Utah: On Tuesday, a committee in Utah's heavily Republican state House sent a bill to the full chamber that would make several changes to election law. Two of the biggest measures would be making same-day voter registration permanent throughout the state—meaning voters could register and vote at the same time on Election Day or during early voting—along with a proposal to automatically register eligible voters who apply for or renew their driver's license or state ID card from the Utah's Driver License Division, unless they opt out. It's unclear whether these proposals will make it past Utah's the GOP-dominated legislature, but so far it's encouraging that the committee gave bipartisan approval to this package.