Even as Democrats and Republicans spend 2018 vying to win key races around the country, a larger legal battle underway this year could reshape the American political map — literally.
By June, the U.S. Supreme Court is likely to decide three major redistricting cases — out of Wisconsin, Maryland and Texas — that will lay some of the foundation for what the maps will look like, not just this year, but after the 2020 census that could affect control of Congress for the next decade.
The state of those legal cases and other key ones (that could affect 2018 and 2020) are below.
But first, some context and history
With Democrats out of power in the House for nearly a decade now, party activists are anxious to change that — and Republicans are trying to hold the line.
Major partisan fights are underway in almost two dozen states, at the ballot box and in the courts. Political groups are already raising millions of dollars and waging all-out campaigns, from one led by President Barack Obama's former attorney general, Eric Holder (the National Democratic Redistricting Committee) to a Republican one that crashed a recent Holder breakfast with reporters to hand out leaflets (the Republican State Leadership Committee).
Democrats like Holder believe some dozen to two dozen congressional seats are at stake and argue that Republicans have "used technology to gerrymander to unprecedented levels" and that "African Americans and Latinos are the most adversely affected."
Republicans, on the other hand, say they won the right to draw districts how they see fit after winning legislative and governors' races across the country over the past decade or so. They also argue the courts should not interfere with the states' rights to draw those districts and that they are not racially gerrymandering, but doing so politically. And, they say, the Constitution gives them the right to do that.
What does the Constitution say about redistricting?
Specifically, Article 1, Section 4 of the U.S. Constitution states:
"The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators."
It wasn't until 1964 that the U.S. Supreme Court determined that districts need to be drawn to be of equal population "as nearly as is practicable." The idea was that an individual's vote should be counted — and represented — equally in the House of Representatives.
Justice John Marshall Harlan concluded in the court's majority opinion:
"While it may not be possible to draw congressional districts with mathematical precision, that is no excuse for ignoring our Constitution's plain objective of making equal representation for equal numbers of people the fundamental goal for the House of Representatives. That is the high standard of justice and common sense which the Founders set for us."
State of play in the courts for 6 key states
Wisconsin
Status: Awaiting Supreme Court decision, expected sometime this spring, between the start of the new term, Feb. 20, and the end of it — in June.
Background: Democrats won a majority of the statewide vote for the state Legislature in 2012 and 2014 but hold only 39 of the 99 seats. A federal court in Wisconsin declared the state's Republican-drawn map unconstitutional. The Supreme Court kept the map in place until it decides the case. A federal three-judge panel held that the map violated the U.S. Constitution's Equal Protection Clause and First Amendment's right to freedom of association. It's the first time a federal court has done so in more than 30 years.
The arguments: The court imposed a three-part test, asking, did Republicans act with discriminatory intent; did they act with discriminatory effect; or was there some other legitimate reason for the gerrymandered map, like geography? The state argued that the legitimate reason is geography, because Democrats are more concentrated in cities. The court disagreed and said that fact "does not explain adequately the sizable disparate effect." It concluded that the GOP acted with both discriminatory intent and effect.
Will it affect the 2018 elections? It could, but only at the state legislative level. It will have no effect on the state's congressional map. But because of other cases making their way through the court that do affect congressional districts, there's a chance the Supreme Court writes a broad decision that affects partisan maps at both the state and congressional level.
Maryland
Status: Supreme Court oral arguments take place March 28. A district court ordered a halt to any new proceedings until the Wisconsin case is decided. In the meantime, the maps are still in effect. The plaintiffs appealed to the Supreme Court to block the map.
Background: Democrats control the Legislature and drew a map that favors their party. The state includes what some have dubbed the most gerrymandered district in the country, Maryland's 3rd Congressional District, which meanders from suburban Washington north to Baltimore and east to Annapolis. At issue, however, is the 6th Congressional District. It was previously represented by Republicans and is now held by a Democrat. It stretches from heavily Republican rural western Maryland, bordering West Virginia, to the highly Democratic Washington, D.C., suburbs. By moving lines around Republican voters, Democrats were able to squeeze out one more Democratic district.
The arguments: As in Wisconsin, a three-judge federal court panel imposed a three-part test, this time dealing with intent, injury and causation. The Brennan Center's Thomas Wolf summarized the test this way: "First, that the mapmakers intended to retaliate against them for their political expression or affiliation (intent); second, that the new map in fact harmed them (injury); and third, that the harm couldn't have arisen absent the mapmakers' retaliatory agenda (causation)."
Will it affect the 2018 elections? Unlikely. Depending on the outcome of the Wisconsin case and how and when the Supreme Court decides that case, the Maryland case could eventually affect a net of likely one seat in Republicans' favor.
Texas
Status: The U.S. Supreme Court is likely to hear arguments sometime in April — with a decision in June.
Background: There are two cases making their way through the courts. The first deals with two congressional districts; the other pertains to the state legislative map. A lower court ruled both maps were racial gerrymanders. The Supreme Court agreed to take up the state's appeal by a 5-4 margin, with the court's conservatives in the majority. The court will condense both cases into one hearing.
The arguments: A lower court three-judge panel in San Antonio determined that the 27th and 35th congressional districts are unconstitutional racial gerrymanders. The state argues they are not "racial" but "political."
Will it affect the 2018 elections? It's unlikely, given the timing of Texas' primary – March 6, the earliest in the country. It would be chaos potentially if the court upended the state's election, throwing out votes in those elections.
North Carolina
Status: Awaiting decisions on Maryland and Wisconsin before the Supreme Court will consider taking this up.
Background: There are three cases pending in North Carolina challenging a replacement map for one that the Supreme Court struck down as a racial gerrymander. The 12th Congressional District was an example of this. It snaked along I-85 from Greensboro to Charlotte, scooping up and packing in black communities along the 90-mile stretch, making Republican seats around it safer.
The arguments: The plaintiffs argue that the new map is now merely an unconstitutional partisan gerrymander that has replaced a racial one. In one case, a lower court disagreed, but in two others last month, they agreed and struck down the new maps. A new map was to be drawn by a "special master" if the court didn't accept another version by the Legislature. But the defendants appealed to the Supreme Court, and the court said the revised maps could go forward for now, pending the outcome of the Wisconsin and Maryland cases.
Will it affect the 2018 elections? Probably not. If the maps are, in fact, ordered to be changed permanently, it most likely won't be until after the 2018 midterms. Republicans currently have a 10-3 advantage in the state, despite its being decided very narrowly in the last three presidential elections. If the state were drawn evenly, it would be a three-seat pickup for Democrats.
Pennsylvania
Status: The U.S. Supreme Court denied an emergency appeal from Republicans last week after the state Supreme Court struck down the GOP-drawn 2011 congressional map. The Republican-controlled Legislature and the Democratic governor were given until Thursday to agree to a new map. The governor rejected the revised Republican map, calling it a "partisan gerrymander that does not comply with the court's order or the state's constitution."
Today, @GovernorTomWolf told @SupremeCtofPA that he will not accept the proposed map GOP @PaLegis leaders submitted because it, too, is a partisan gerrymander that does not comply with the court’s order or PA’s Constitution. https://t.co/zxBW008cch
— Office of the Governor (@GovernorsOffice) February 13, 2018
The state Supreme Court had mandated that if the parties could not agree, it would craft a new map by Monday with the help of Stanford law professor Nathan Persily, an experienced "special master" in redistricting, who has been appointed by courts to redraw maps in a handful of other states.
Background: Republicans, who then also had a Republican governor, redrew the congressional map in 2011 following the 2010 census and gave themselves a big 13-5 advantage. That lopsided congressional advantage is certainly not reflective of other election outcomes — for example, Trump won Pennsylvania 48-46 percent, and Obama won it twice, 51-47 percent and 53-46 percent. If the state is drawn evenly, Democrats stand to pick up three to four seats.
The arguments: Democrats won a big victory before the state Supreme Court, based solely on the state Constitution, which says that elections "shall be free and equal." (The Pennsylvania Constitution actually predates the U.S. Constitution.) Notably, the way the argument was written could apply to many other states, and this case is seen as a potential road map for lawyers and activists in other states to follow.
Will it affect the 2018 elections? Yes. The state court, which has more Democrats than Republicans on it, has set out an ambitious timeline to have a new map completed — and would be applicable by the 2018 primaries. In Pennsylvania, those are May 15. It will be a sprint for candidates; congressional candidates can start circulating petitions to get their names on ballots starting in less than two weeks, on Feb. 27.
Michigan
Status: The GOP-drawn Michigan map is under assault on two fronts — a lawsuit filed by the Michigan League of Women Voters and 10 Democratic activists; and a ballot initiative that is likely to get on the ballot this year. The court case is in federal court with oral arguments scheduled for March 20.
The signature-gathering effort for the ballot initiative surprisingly got 425,000 signatures, 110,000 more than required. Last week, the Ohio Legislature approved a ballot initiative that will go before voters in May. Activists are also gathering signatures for nonpartisan or more independent redistricting in Colorado, Missouri, Ohio, South Dakota and Utah.
Background: Currently, Republicans have a 9-4 congressional-seat advantage (there's one more Democratic seat, but John Conyers resigned, and it is vacant), despite the state's going for Trump in 2016 by only about 10,000 votes and for Democrats in every presidential election for 20 years before that. Democrats stand to pick up three seats if the state is drawn evenly.
The arguments: The lawsuit is challenging both the state legislative and the congressional maps. The plaintiffs say the state violated the First and 14th amendments, arguing "that the legislature unconstitutionally marginalized Democratic constituencies by cracking and packing Democratic voters while efficiently spreading Republican voters across safe Republican districts," the Brennan Center notes.
Will it affect the 2018 elections? No, but it would very likely do so for 2020. By the way, because of Michigan's slow population growth, the state is expected to lose a congressional seat in 2022 (and an electoral vote in 2024). So if the map is redrawn, mapmakers will have to redo it again and cut out one district.
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