Who will control Congress for the next 10 years? It could come down to state supreme courts

Four years into a congressional map that overwhelmingly favored Republicans, the chairman of Ohio’s Democratic Party called together a task force.

Ohio Democrats had just been swept again in statewide elections in 2014, and Republicans held a 12-4 advantage in the state congressional delegation. But then-Democratic chairman David Pepper had an idea about the path to parity for his party: through the Ohio Supreme Court.

State supreme courts have emerged as a key battlefield in the latest war over drawing maps for representation in state general assemblies and Congress, particularly after the U.S. Supreme Court reiterated in 2019 that federal courts cannot intervene in partisan gerrymandering cases.

Delays in getting the necessary census data and questions about data reliability amid the pandemicadd another wrinkle.

“The bottom line is, the losers always sue,” said Michael McDonald, a University of Florida professor who runs the U.S. Elections Project. “We’re going to see litigation everywhere.”

The stakes are high. Democrats lost ground in 2020 after retaking the majority in 2018. If Republicans win back the House majority in 2022, it would imperil President Joe Biden's long-term agenda.

With legal challenges all but inevitable, decisions by justices on state high courts could decide control of Congress for the next decade. New district lines can help lock in a partisan advantage, as they did when they helped Republicans overperform in the 2018 midterm election.

Legal fights begin

Gerrymandering is the process of drawing legislative districts to give an advantage to a political party or group of people.

Map drawers looking for an advantage sometimes pack the opposition's voters into a single district to give themselves a leg up in others. They also have diluted those voters by spreading them across multiple districts.

As the political cartographers lay down new lines, legal jockeying already has begun in a handful of states.

So far, three lawsuits, including one backed by former Attorney General Eric Holder's National Redistricting Action Fund, are challenging Ohio's statehouse maps. Groups on both sides of the aisle expect similar challenges when the state draws congressional lines.

More: Third redistricting lawsuit: Ohio Statehouse maps dilute Black, Muslim votes

In Wisconsin state court, a lawsuit was filed based on the assumption that the Democratic governor and Republican legislature won't agree on maps, according to All About Redistricting, a clearinghouse for information about redistricting. A similar preemptive challenge was filed in Texas.

And Virginia’s redistricting commission is facing a lawsuit in its state supreme court over counting prisoners.

The federal courts aren’t completely closed for business on redistricting. While the Supreme Court said the wider practice of partisan gerrymandering is off the table for federal courts, they still can rule on more specific cases of racial gerrymandering.

But redistricting experts told USA TODAY that state courts are shaping up as the venue where many redistricting challenges could be decided this decade.

“There is no remedy now in federal court,” said Michael Li, senior counsel at the Brennan Center for Justice. “You have to look where you can to find a remedy. So I think there’s a renewed interest in state constitutions and state courts.”

SCOTUS backs away from partisan gerrymandering

The U.S. Supreme Court has eroded traditional safeguards against partisan gerrymandering since the last time mapmakers laid down new lines a decade ago.

In 2013, the Supreme Court struck down a key piece of the Voting Rights Act of 1965 requiring some states with a history of discrimination to obtain federal approval before changing their election laws.

Then came a pair of decisions, just one year apart, that shifted election watchers' perspectives.

More: What is gerrymandering? Redistricting means new winners and losers

In 2018, the court decided against Republicans challenging congressional maps drawn by the state supreme court in Pennsylvania because the case was decided based on the state constitution.

Then, in 2019, SCOTUS cemented limitations on the federal courts’ ability to address partisan gerrymandering complaints.

Lawsuits alleged that maps drawn by North Carolina Republicans and Maryland Democrats unfairly favored one party in violation of the U.S. Constitution. But a divided court ruled 5-4 that partisan gerrymandering claims are “political questions beyond the reach of the federal courts.”

It was the sixth time the court had declined to intervene in cases of partisan gerrymandering.

A key difference between the two decisions: the basis for the challenge. The 2019 case challenged maps in federal court based on the U.S. Constitution, while the 2018 Pennsylvania case was decided under the state constitution.

That decision and others since the last round of redistricting in 2011 have put a finer point on state courts as an avenue for challenging maps, experts told USA TODAY.

“While people may have in the past sort of ignored the possibility of a state claim, I think a lot of people are looking very closely at what is there in state constitutions that we can latch onto,” Li said.

Control of Congress

Democrats took back the U.S. House of Representatives in 2018, but a disappointing down ballot election in 2020 meant the party lost some of the ground it had gained.

Democrats hold 220 seats in the House to 212 for Republicans, with three vacancies.

The parties will almost certainly try to draw favorable maps in the states where they control the process. In 2020, that’s an advantage for the GOP. Republicans can draw the lines for 20 states and 187 congressional seats, compared with only 75 seats for Democrats, according to Sabato's Crystal Ball at the University of Virginia Center for Politics. .

More: Texas will gain 2 congressional seats. Seven states to lose 1 seat, Census Bureau data shows

Control of redistricting the remaining seats is either split, rests with commissions or doesn’t matter because the state has only one seat in the House.

“It’s going to be hard for the Democrats to really get to parity with Republicans just in terms with what states they can control," said J. Miles Coleman, associate editor of Sabato's Crystal Ball.

While Republicans hold the pen for far more seats, Coleman said he expects Democrats to try to squeeze out advantages in states where they have control, including Illinois and New York.

With Republicans overseeing new maps for more seats, they also are likely to bring fewer lawsuits challenging maps, said Jason Torchinsky, general counsel for the National Republican Redistricting Trust.

“I don’t think you’ll see my side bringing as many offensive lawsuits as the other side. Our incentives are different.”

Coleman said he expects Republicans to gain about 10 seats through redistricting, though, which alone would be enough for the GOP to retake the House of Representatives.

Already struggling to unite progressives and moderates within his own party, Biden could face the prospect of a Republican Congress that would all but assure deadlock in Washington.

“You think about how hard the negotiations are right now with this infrastructure bill, how much harder that would be if you had to negotiate with Republicans,” Coleman said. “It could definitely have the potential to stall (Biden's) agenda in the second half of his term.”

Legal jockeying

Partisan control of state supreme courts could affect how congressional lines are drawn in 11 states, David Wasserman, senior U.S. House editor of The Cook Political Report, told a National Conference of State Legislatures conference last summer.

Those states are Florida, Illinois, Kansas, Louisiana, Maryland, Minnesota, North Carolina, Ohio, Oregon, Pennsylvania and Wisconsin.

Some of those courts have shown a willingness to weigh in on partisan gerrymandering cases. North Carolina, Pennsylvania and Florida courts all have ruled on redistricting cases over the last decade.

State constitution requirements for “free and fair” elections could be used to challenge maps in state courts, as they were in North Carolina and Pennsylvania. Thirty states have constitutional requirements for “free” elections, according to the National Conference of State Legislatures, and 18 require elections to be “equal” or “open.”

Those clauses were central to cases in North Carolina and Pennsylvania where courts ordered lines redrawn.

While some state courts overruled mapmakers before, shifting partisan control of the courts could change those dynamics.

The Florida Supreme Court, for example, ruled against a Republican-drawn map in 2015, requiring eight districts to be redrawn. But Gov. Ron DeSantis has added Republican justices to the court since then.

In 2012, the Republican chief justice of the Ohio Supreme Court, sided with the minority in rejecting state legislative maps as a partisan gerrymander in 2012. Since then, however, Democrats trimmed the GOP advantage on the state supreme court to 4-3. If the GOP chief justice sides with the judges in the minority again, those onetime dissenters could become the majority.

Jeff Jacobson, a former Republican Ohio lawmaker who is monitoring the state's redistricting process, said mapmakers should pay close attention to that 2012 dissent to avoid similar pitfalls that could imperil new maps.

Doug Spencer, a University of Colorado law professor who manages the All About Redistricting website, said lawsuits over new maps are likelies in states where different parties control the governor’s office and the legislature and those where state courts previously have ruled in similar cases.

In states with divided governments, courts could be asked to resolve differences between the two sides when the governor has veto power over maps. Partisan divides separate governors and legislatures in 12 states, according to Ballotpedia, and governors have veto power over maps in eight of them.

For example, Republicans control the Wisconsin State Assembly, but Gov. Tony Evers is a Democrat.

Republican lawmakers in Wisconsin are now weighing whether to ask the U.S. Supreme Court to toss a federal lawsuit over its maps, preferring instead to have the case decided at the state supreme court.

“Courts are a political institution and they don’t like to be pawns in a political game,” Spencer said. “But the honest truth is sometimes they are used as pawns.”

This article originally appeared on USA TODAY: Redistricting: State supreme courts could decide control of Congress