RACHEL MARTIN, HOST:
It is an election year. And the battle lines are being drawn. In Maryland, Republican Governor Larry Hogan yesterday approved a new voting map, but only after a judge struck down what she called an extreme gerrymander by Democrats. In New York, an appeals court kept a new map temporarily in place after a lower court said it was illegally drawn to benefit Democrats. And in North Carolina and Pennsylvania, Republicans lost battles last month when the Supreme Court rejected appeals over maps that were seen as favorable to Democrats. Michael Li is a redistricting expert at the Brennan Center for Justice. I asked him what is behind all the map fights?
MICHAEL LI: What is unusual this decade are a couple of things. One is that there's so much litigation so late in the cycle. And that really has to do with the fact that redistricting got started later this cycle than normal because of the delays in the census data because of the pandemic. But also, you're seeing more action in state court. And that is in part because in 2019, the Supreme Court said that federal courts could not hear partisan gerrymandering claims. So if you have a partisan gerrymandering claim, you have to bring it into state court. And so a lot of the action this decade has been in state court instead of federal court. And that's likewise, I think, true when you're talking about racial discrimination because the federal courts have not been as good on policing racial discrimination either.
MARTIN: So what are the consequences of all these cases being heard at the state level?
LI: Unfortunately, the fact that people are (laughter) winning in state courts has caused the losers in state courts to turn again to the federal courts to try to undo some of those state court judgments and to argue, for example, when it comes to congressional redistricting, that state courts have no power over congressional redistricting, which is a very strange position. But that is the argument that Republicans are making in North Carolina even as they're running district court in New York.
MARTIN: When you look at the country as a whole, has either party gained a particular advantage when it comes to the upcoming midterms through redistricting?
LI: It does seem overall that Democrats have not done as badly as many people thought that they would. And Democrats, in fact, have been fairly aggressive at doing their own gerrymandering in states like New York and Illinois to sort of offset Republican gerrymandering. Republicans, likewise, have gerrymandered really defensively. They didn't go out and target any more Democratic incumbents. Instead, they tried to shore up what they had already, which is a disproportionate share of seats in states like Texas and Georgia, in order to guard against demographic change and against political shifts that in recent years have not favored Republicans. And so overall, the parties, in some ways, are fighting to a draw. But, you know, they're really, in some ways, playing very different games.
MARTIN: What do you do when the congressional map has been thrown out by a judge and you're just months away from the election?
LI: So there are ways that you can sort of ensure that there are fair maps in place. But it's also getting very late in the cycle. And at least from the Supreme Court, the sense seems to be that, you know, it may be too late. The Supreme Court put on hold a redrawing of Alabama's congressional map while that case is on appeal, finding that it was too close to the election and even though it was several months away and there arguably was still time to redraw the map. And so effectively, at least the signal from the Supreme Court is to federal courts that maybe the train has left the station and that the maps that we have in place now, even if they ultimately are found to be discriminatory, are the ones that we should use for 2022, and that any fights will play out and result in changes for 2024. And we already saw that in Georgia, where a federal court said that Georgia's congressional map likely violated the Voting Rights Act. But there wasn't enough time to change it for 2022.
MARTIN: So if we all agree that gerrymandering is bad, what is the solution? I mean, I know some states use independent commissions. Do those work?
LI: So the process in those states has played out really well. Michigan last decade had maps drawn by the legislature. They were very aggressive, pro-Republican gerrymanders. Michigan voters created an independent commission to draw maps going forward. This decade, that commission has produced maps that are among the fairest in the country in terms of partisan balance and in terms of how racial and ethnic minorities are treated. And so that seems to be a powerful way forward. Congress at times has considered requiring every state to use independent commissions to draw congressional maps. It has that power under the Constitution to require that. But that legislation has not yet passed. There is so much at stake in redistricting that every decade, millions of dollars gets poured into trying to control legislatures, trying to control the process, trying to manipulate the process. And every decade, we have to fight this in court. And so after this cycle, which has been some - one of the most aggressive in the country's history, both by Democrats and by Republicans, I think it's really time to take a hard look and see if we can do this better.
MARTIN: Michael Li is senior counsel at the Brennan Center for Justice. Thank you so much. We appreciate it.
LI: Thanks for having me. Transcript provided by NPR, Copyright NPR.