Dems Just Got Huge Wins (for Now) on Gerrymandering

Democrats just got a pair of big gerrymandering wins for the 2022 midterms—but they might prove fleeting.

The Supreme Court rejected Republicans’ requests for them to block court-drawn Congressional maps in North Carolina and Pennsylvania on Monday evening, a move likely to give Democrats more House seats in the 2022 election than if the maps were drawn by Republicans. 

But four Supreme Court justices indicated that they’re open to making it illegal for state courts to strike down gerrymanders—a move that would dismantle voting rights advocates’ last venue for challenging egregious redistricting maps.

Conservative Justices Samuel Alito, Clarence Thomas, and Neil Gorsuch dissented on the North Carolina ruling, while conservative Justice Brett Kavanaugh indicated he might side with them in the future.

In the short term, this is a huge win for Democrats. In North Carolina, state courts blocked a gerrymander drawn by Republican state legislators that would have given their party 11 of the state’s 14 House seats. Those courts instead approved a nonpartisan map that gives Democrats and Republicans six seats each and creates two tossup districts, mirroring the politics of the closely divided state. 

The Pennsylvania ruling means a map with eight GOP-leaning districts, six Democratic-leaning districts, and three swing seats. Republican state legislators originally passed a map that would have given them a 9-5 advantage with three swing seats in the battleground state.

Republicans had made last-ditch efforts to appeal both maps to the U.S. Supreme Court after losing in state court, and this ruling ends their chances at striking down these maps before this fall’s midterm elections.

But voting rights advocates were much more worried that four of the court’s conservative justices disagreed. Those justices signaled that they’d likely rule the other way in future cases, putting in jeopardy state courts’ ability to reject gerrymanders for being unconstitutional under state law. That set off alarm bells for voting rights and fair maps advocates.

“There must be some limit on the authority of state courts to countermand actions taken by state legislatures when they are prescribing rules for the conduct of federal elections,” Alito wrote in dissent. 

That would break with decades of precedent—and leave civil rights groups and citizens with almost no option to protect voting rights when legislators gerrymander their maps to their liking.

“State courts striking down maps for violating state law is nothing new. And yet here you have four justices willing to ignore decades of practice. It's breathtaking and deeply troubling,” said Michael Li, the senior counsel of the Brennan Center's Democracy Program. “It just goes to show you how much the legal Overton window has shifted in the last few years.”

The conservative-dominated Supreme Court has already done significant damage to voting rights protections in recent years. In 2019, it ruled that the federal courts should play no role in opposing gerrymandering. The court has also gutted the Voting Rights Act, the nation’s most significant law that protects against voting discrimination. And last month it ruled that even racial gerrymanders would be allowed in this election, arguing it was too close to the election to do anything about them.

The biggest surprise in this ruling may be conservative Justice Amy Coney Barrett, who sided with the court’s three liberal justices and Chief Justice John Roberts. Barrett didn’t write a concurrence in the case, suggesting that she may agree with the court’s liberals that state courts should have an ability to reject maps that violate their states’ constitutions.

But it’s far from clear what Barrett might do in a future case—leaving open a real possibility that the Supreme Court could close down the last venue to legally challenge gerrymandering in the U.S. by barring state-level lawsuits.