Democrats and some Republicans are turning to state courts as a political tool to help adopt partisan gerrymandering ahead of the 2024 election, which is part of a trend following a 2019 Supreme Court ruling that such gerrymandering doesn’t violate the Constitution, according to an election expert.
“In that Supreme Court decision [Rucho v. Common Cause], the court said political gerrymandering does not violate the U.S. Constitution,” Heritage Foundation senior legal fellow Hans Von Spakovsky told Fox News Digital this month in a phone interview. “That basically struck out the federal Courts and the federal Constitution as a possible tool by Democrats to basically object to redistricting that they didn’t like.”
“So, they then switched to state courts. And they started filing claims, like in North Carolina, for example, Pennsylvania, claiming that political gerrymandering that favored – in those cases – the Republican Party violated the state’s constitution,” he said.
Historically, redistricting plans are approved by state legislatures, with Democrats easily installing their plans in Democrat-controlled legislatures “whenever redistricting would come up,” said von Spakovsky, who previously served on the Federal Election Commission. But when Republicans in states across the country began gaining control of legislatures and worked to redistrict the lines to favor the GOP, Democrats filed lawsuits in an effort to stop them.
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Republicans currently have control of nearly 55% of all state legislative seats, according to data from the National Conference of State Legislatures.
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“Democrats decided that they wanted to go to court to stop that. And so they filed a series of cases in which they made the claim that political gerrymandering violated the U.S. Constitution, because what they said was that ‘Well, if you’re politically gerrymandering, then you’re denying people equal representation,'” von Spakovsky said.
In 2019, the Supreme Court ruled in its landmark redistricting case that political gerrymandering does not violate the U.S. Constitution, detailing that partisan gerrymandering raises political questions beyond the reach of federal courts. The move forced local leaders looking to redistrict to lean on state courts to approve gerrymandered voting lines.
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Von Spakvosky singled out Wisconsin as the top state to watch for Democrat efforts to redistrict or alter election laws this year, and he pointed to how the state’s Supreme Court recently flipped blue.
“Wisconsin is the No. 1 place because of the fact that in the last state election Democrats took control of the state Supreme Court. And they elected a very, very liberal individual to be on the court,” he said.
The Wisconsin Supreme Court, which flipped blue in 2023, last month ordered new legislative maps be drawn, tossing out Republican-drawn maps on the basis they were unconstitutional. The state Supreme Court ruled that it will adopt new maps ahead of the 2024 election unless state lawmakers and Democrat Gov. Tony Evers agree to new lines beforehand. Last week, Evers vowed to veto a Republican-drawn map, saying he’ll leave the matter to the court.
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Wisconsin is a battleground state, which former President Trump won in the 2016 presidential race against former Secretary of State Hillary Clinton, and President Biden won the state in 2020 when he faced off against Trump.
Shortly following the state Supreme Court tossing the legislative maps, top Democrat lawyer Marc Elias’s law firm, the Elias Law Group, filed a suit this month, arguing that the court’s ruling paves the way to also toss out the state’s congressional maps ahead of 2024.
“Marc Elias and the group that he’s got – that’s very well funded – started filing lawsuits trying to reverse some prior decisions on election issues that had been issued when Republicans [controlled] the state Supreme Court and the redistricting fight that’s going on. Elias did that because he knew that he now had a favorable court; a favorable court there that would hopefully go his way on these on these redistricting issues,” von Spakvosky said.
“Wisconsin’s current congressional map was drawn according to a ‘least change’ principle that perpetuated and exacerbated the partisan unfairness that has robbed Wisconsin voters of fair congressional districts for over a decade,” said Elias Law Group partner Abha Khanna of the latest suit in a press release provided to Fox News Digital. “Thankfully, the Supreme Court of Wisconsin recently overruled the requirement that courts adhere to a ‘least change’ approach to redistricting, noting that the practice is both unsound and unworkable. Wisconsin’s congressional map now has no basis in Wisconsin law or precedent, and the remedial process to adopt a new, lawful map must resume immediately.”
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In New York late last year, the state’s top court handed Democrats a massive win, ordering the state’s redistricting commission to craft new congressional maps ahead of the 2024 election cycle as Democrats try to regain seats they lost in 2022.
New York has been in the midst of a redistricting saga dating back to before the 2022 election cycle. Voters in the Empire State approved an amendment to the state’s constitution in 2014 that reformed its redistricting process and prohibited partisan gerrymandering. It created the bipartisan Independent Redistricting Commission, which is tasked with redrawing congressional lines.
The commission, however, failed to reach a consensus ahead of the 2022 election, allowing the Democrat-controlled legislature to step in and draw the map.
Democrat Gov. Kathy Hochul signed the redrawn map into law, which sparked a lawsuit from Republicans. A county judge at the time stuck down the Democrat-drawn map before Democrats in the state took the case to the Court of Appeals.
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The Court of Appeals also struck down the map and appointed an out-of-state, independent “special master” to redraw the congressional lines ahead of the 2022 election. What soon followed in the new districts was Republicans winning five out of the six competitive House races in New York and flipping four blue seats red.
In an effort to regain seats, Democrats again launched their redistricting effort ahead of the 2024 election.
By last month’s ruling to redistrict, the Court of Appeals had recently undergone a leadership change when the chief judge who oversaw the 2022 redistricting challenge resigned last year and was replaced by Chief Judge Rowan D. Wilson, who authored this year’s court opinion ordering the maps be redrawn. Both judges are members of the Democratic Party, though Wilson is seen as a more solidly progressive justice.
“Because of the change at the Court of Appeals, [Democrats] may think to themselves that even if they do put forward an egregiously gerrymandered map, they might think that they have better odds at surviving a court challenge because of that personnel change,” New York election attorney Joe Burns previously told Fox News Digital.
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Burns said in an interview this month that redistricting again in New York is something “wholly unprecedented” and comes amid other election efforts championed by Democrats, including moving local elections to even-numbered years alongside expensive and flashy gubernatorial and presidential elections.
“We’re seeing something that’s wholly, wholly unprecedented: a second round of redistricting after this was done in 2022. New York now has the largest number of Republican House members since, I believe, after the ’94 election in an incredibly closely divided House representative. I think it’s pretty obvious where things have been going,” Burns said.
On the flip side of the 2024 Democrat redistricting efforts, North Carolina Republicans recently retook control of the state Supreme Court and overturned its own past ruling that political gerrymandering is unconstitutional, which paved the way for Republicans to redraw the state’s congressional lines.
“In North Carolina, there was a state election several years ago. Democrats took control of the state Supreme Court. … Democrats claimed that political gerrymandering, and in this case, by the Republican legislature, violated the state constitution. In the next election for the state Supreme Court, those Democratic judges were challenged. Republican judges took control of the state Supreme Court … and they issued a decision reconsidering that prior decision and saying that the court had erred and that political gerrymandering does not violate the state constitution,” von Spakovsky said.
He said Democrats “came up with this possible weapon” to lean on state courts to change election laws and redraw state maps, adding that some Republicans have also jumped on the trend and “tried to use the same weapon.”
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