Conservative justices on the U.S. Supreme Court ruled in 2019 that federal judges could not entertain complaints of partisan gerrymandering. In its landmark 5-4 decision Rucho v. Common Cause, the court said that it’s not for federal courts to decide whether an election map is designed to give one party an illegal advantage. But Chief Justice John Roberts assured plaintiffs that his decision does not leave them powerless to stop partisan gerrymandering since they still have a path for litigation: state courts.

The Rucho decision did not “condemn complaints about districting to echo into a void,” Roberts wrote, since states “are actively addressing the issue on a number of fronts.” 

New Hampshire last week became the latest state to show the promise was largely illusory. 

Its state supreme court ruled that it couldn’t consider whether the state’s election maps are illegal partisan gerrymanders because that’s not something that state judges should be deciding either. The 3-2 decision—with the three judges appointed by Republican Governor Chris Sununu in the majority—left in place the GOP gerrymanders signed into law by Sununu. This likely locks the party’s structural advantages in New Hampshire’s Senate and executive council through the 2030s. 

And it condemns complaints of partisan gerrymandering claims to echo into a void after all, with nowhere to turn in either federal court or New Hampshire court. 

The court said plaintiffs could address their grievances by getting state lawmakers to pass redistricting reform. But the odds of such a reform are low since the New Hampshire legislature is already gerrymandered, a circular dynamic that explains why voting groups tried to turn to federal and state courts on the issue. Any bill would have to be approved by the state Senate, a body whose districts have long been drawn to give Republicans an edge.

The New Hampshire decision adds to a trend in the nation since Rucho, with other state courts retreating from Roberts’ assurance and showing that they can just as easily refuse to answer the same questions. Earlier this year, for example, North Carolina’s supreme court ruled that partisan gerrymandering lawsuits can’t be brought under the state constitution, reversing past decisions to the contrary and paving the way for maps meant to maximize the GOP’s power.

New Hampshire Republicans won complete control of state government in 2020. They then proceeded to cement their advantage after the decennial census, adopting districts for the state Senate and executive council that created more Republican-leaning seats. A group of voters challenged the maps in court, alleging that they were partisan gerrymanders that violated New Hampshire’s constitution. 

But New Hampshire’s supreme court upheld the maps’ constitutionality on Nov. 29. The court declined to even consider the merits of the challenge, holding instead that partisan gerrymandering is a policy matter for other institutions to debate, and is a non-justiciable political question.

In practice, this means that no case alleging partisan gerrymandering, regardless of how egregious, can be brought in state courts. 

The New Hampshire court argued that there is no consistent method through which state judges could adjudicate such cases: no “discernible and manageable standards for adjudicating partisan-gerrymandering claims.” The language mirrors the U.S. Supreme Court’s decision in Rucho on how federal courts should approach partisan gerrymandering claims: Roberts argued in that case that adjudicating such claims is overly subjective. “There are no legal standards discernible in the Constitution for making such judgments, let alone limited and precise standards that are clear, manageable, and politically neutral,” the chief justice wrote.

The New Hampshire court’s decision flips an important part of the rationale in Rucho on its head. Roberts’ opinion also doubled as an ode to federalism; even as he sidelined federal courts, he invited states to look to their own laws and constitutions for alternative protections against partisan gerrymandering that don’t rely on the U.S. constitution. Writing in 2019, he offered as an example a 2015 decision  by Florida’s supreme court striking down a congressional map as an illegal gerrymander under the state constitution. 

Plaintiffs in New Hampshire asked state courts to similarly consider their own constitution. But in closing the door on their challenge, the state supreme court heavily relied on Rucho—calling it “directly on point” even though Rucho was interpreting the U.S. Constitution—and it drew extensively from Roberts’ opinion, even as Roberts invited states to chart their own path. 

“Provisions in state statutes and state constitutions can provide standards and guidance for state courts to apply,” Roberts wrote in Rucho, but that approach can’t get out of the starting blocks if a state court then turns to Rucho to decide how to interpret its state constitution.

Florida’s constitution, unlike New Hampshire’s, contains a clause that expressly restricts partisan gerrymandering. But even in states without such an express prohibition, some courts have found implied protections against partisan gerrymandering. In the last several years alone, courts in Alaska, Maryland, New Mexico, North Carolina, and Pennsylvania have all affirmed such protections. 

In their arguments to the New Hampshire supreme court, plaintiffs pointed to these decisions. They argued that the guarantee of “free” elections in New Hampshire’s constitution (which does not exist in the U.S. Constitution), along with other free-expression rights, established a right of voters to elect representatives on equal footing with each other. 

The court found this unpersuasive. It reiterated that developing and consistently applying standards for reviewing partisan gerrymandering isn’t possible in practice. As a “telling” sign of this inconsistency, the New Hampshire justices pointed to recent events in North Carolina, where the state supreme court struck down GOP gerrymanders in 2022 before reversing itself this year. 

But North Carolina’s court didn’t just change the standards for deciding whether maps are unconstitutional, or apply old standards differently. It simply ruled that this is not a question that judges can rationally decide, in language very similar to the New Hampshire decision. 

“There is no judicially manageable standard by which to adjudicate partisan gerrymandering claims,” North Carolina Chief Justice Paul Newby, a Republican, wrote in February. “Courts are not intended to meddle in policy matters.”

New Mexico’s supreme court offered the opposite answer this year when it confronted a similar question.

It ruled that state courts can entertain claims of partisan gerrymandering, and decide whether a map is unduly giving an advantage to a party. To get around the concern that there’s no criteria judges could manage, the court identified a set of standards with which to analyze maps. It adopted a three-part test laid out by U.S. Supreme Court Justice Elena Kagan in her dissent in the Rucho case; Kagan proposed that courts could strike down a map if they have proof that its creators’ purpose was to “entrench their party in power;” that it has had “the intended effect”; and, if so, that mapmakers cannot provide a “legitimate, non-partisan justification” for the map. 

The same court in November then upheld New Mexico’s congressional map, which delivered Democrats an additional seat in 2022, ruling on the merits that it did not violate Kagan’s test. 

The decision is a reminder that a state court’s decision to hear partisan gerrymandering claims does not mean they’ll automatically strike down a map. And when such cases come up, there’s no telling how left-leaning and right-leaning justices may rule, depending on who has drawn maps; in New York State last year, it was the conservative-leaning judges who struck down gerrymanders drawn by Democrats over the objections of more liberal judges.

But these decisions also underscore the widening contrast between courts on the first-order question of whether they’ll even entertain such claims: on whether partisan gerrymandering is a judiciable question. 

Conservative jurists have been more likely to rule that it is not. The North Carolina reversal came after the court flipped from 4–3 Democratic to 5–2 Republican last year. The Rucho decision was a similarly narrow 5-4 win for the court’s then-five conservative justices. 

And in New Hampshire, the decision to reject the partisan gerrymandering claims came down to a 3–2 vote, with the 3 justices nominated by a Republican governor in the majority, and the two nominated by Democratic governor dissenting. 

One of the justices in the majority was Chief Justice Gordon MacDonald, whose nomination by Sununu was initially rejected by the executive council when it was under Democratic control. MacDonald was then confirmed to his seat when the council flipped to the GOP in 2020.

One of the Democratic-nominated justices who dissented in this case, Gary Hicks, left the court the day after the court issued its decision because he hit the mandatory retirement age. Sununu has nominated Melissa Beth Countway, a local judge, to replace him. 

Even Florida has come a long way since Roberts mentioned its supreme court: The mere threat that its new conservative justices may now shrug off partisan gerrymandering complaints has made the state’s existing protections virtually toothless. 

After voters amended their state constitution in 2010 to add provisions against partisan gerrymandering, Florida’s supreme court used those provisions to strike down state maps in 2015 for being “tainted” by partisanship. But by the time Republicans adopted a new set of aggressively gerrymandered maps masterminded by Governor Ron DeSantis in 2022, Florida’s judicial landscape was very different: The supreme court’s liberal majority had been wiped out, replaced by hard-right justices appointed by DeSantis. 

While plaintiffs initially filed a lawsuit challenging the state’s new congressional districts as partisan and racial gerrymanders, they later dropped all of their partisan gerrymandering claims, perhaps out of a concern that the Florida supreme court would be unwilling to meaningfully enforce the anti-gerrymandering provisions in the constitution.

Looming over all of this is the threat that the U.S. Supreme Court could step in against a state supreme court that actually does strike down a state map as a partisan gerrymander.

In its June decision in Moore v Harper, the court rejected the so-called independent state legislature doctrine, which argued that congressional maps drawn by legislatures (as well as other state statutes regulating federal elections) should not be subject to any review by state courts. But the decision, which was authored by Roberts, again, still kept open the possibility that it may intervene if state courts “transgress the ordinary bounds of judicial review.” 

State courts trying to stop partisan gerrymandering may feel some trepidation about stepping over this ambiguous  line. After all, here was the same justice who told them in Rucho to look at their own state constitutions and statutes, now warning them in Moore that he may stop them even if they ground their rulings on state law. Roberts hollowed out his own promise, restricting with one hand what he had invited with the other.

The post Yet Another State Shuts the Door on Partisan Gerrymandering Complaints appeared first on Bolts.

Workman sat on West Virginia’s supreme court in 2018—one of the three Democratic justices in the court’s majority—when Republican lawmakers decided to impeach that entire court. The GOP had flipped the legislature in 2014 for the first time in decades, and it had seized the governorship in 2017; only the supreme court stood in the way of one-party rule in the state. 

“All of a sudden, we had this right-wing legislature wanting to impeach everybody,” she recalls, “and they wanted in my opinion to get rid of us so they could put their own.”

When Workman read this summer that Protasiewicz may be impeached, shortly after her victory flipped Wisconsin’s high court to the left, she was struck by the parallels with what she herself went through. “The Wisconsin situation is a complete power grab to undermine democracy,” she told Bolts. “It shocks me because it even goes further than the one that I experienced.” 

She added, “It’s this whole thing that’s scary going on in this country, that if you can’t defeat people’s votes then you do it in some other way.” 

Protasiewicz won Wisconsin’s supreme court election in April, giving liberals a 4-3 majority on the court, their first in 15 years. But Republicans began to float impeaching Protasiewicz before the results were even known. The party has already locked down control of the legislature, using aggressive gerrymanders to protect itself from election defeats. It has also deflated the powers of the Democratic governor, Tony Evers, undercutting his authority to appoint people to executive branch positions. 

But by electing Protasiewicz, voters threatened the GOP’s hold on power by opening the door to an anti-gerrymandering ruling by the court. Just days after Protasiewicz was sworn-in, voting rights groups filed two lawsuits asking for the state’s legislative maps to be struck down as unconstitutional gerrymanders. 

Speaker Robin Vos, former Governor Scott Walker, and other Republicans have demanded that Protasiewicz recuse herself from these cases or else risk impeachment. They say comments she made while running—she notably called the state’s current legislative maps “rigged”—mean that she has “prejudged” the cases. Candidates in Wisconsin routinely share views on issues or are attached to political parties, though, and the Wisconsin Judicial Commission dismissed complaints filed by the GOP that her statements violated ethics rules.

Vos, who leads the Assembly, where impeachment proceedings would start, is still pushing forward this month. Thanks to the large majorities the state’s gerrymandered maps have delivered the GOP, his party currently holds enough seats to impeach Protasiewicz in the Assembly and then convict her in the Senate if all Republican lawmakers hold together.

Removing Protasiewicz would go far beyond the legal guardrails for impeachment laid out in the state constitution. Legal experts in Wisconsin say a plain reading of the document undermines the Republicans’ case against Protasiewicz.

But these legal barriers may not constrain the GOP. Constitutional protections are only as strong as the will to enforce them. Republican lawmakers may try to blow past them even if there is little legal justification, because at that point it’s uncertain at best who or what could stop them. 

Most notably, the allegations against Protasiewicz do not seem to fit the circumstances under which Article VII of the state constitution contemplates impeachment: It reserves it for “corrupt conduct in office, or for crimes and misdemeanors.” Protasiewicz is not accused of criminal conduct, she has yet to do much of anything “in office,” and she faces no allegations of bribery or personal gain, which is traditionally how corruption was defined. 

“It’s a difficult fit with the historical understanding of corrupt conduct in office,” says Chad Oldfather, a professor at Marquette University Law School. “You are talking about a justice being impeached before even hearing or deciding a case,” says Doug Keith, senior counsel in the Brennan Center’s Judiciary Program, a national program that tracks state courts. “This is not how impeachment has been used, or how I would expect it to be used.” 

In fact, Wisconsin has a separate procedure, known as “removal by address,” allowing lawmakers to remove judges for “misconduct”—a broad category that would better fit the GOP’s charges against Protasiewicz. Republicans lack the votes for the far higher threshold that this procedure requires in the Assembly (two-thirds, rather than a simple majority).

But Keith added that this may not matter in practice to how this confrontation unfolds, saying, “it’s a separate question of what would happen if the legislature followed through on this.” 

Miriam Seifter, a professor at the University of Wisconsin-Madison Law School, also says she does not think that the allegations against Protasiewicz meet the constitutional standards of impeachment, but she too warns that lawmakers may decide they don’t care, betting that no one will check them.

“That is one of the precarious aspects of this situation,” says Seifter, “once one legal actor does not adhere to the constitution, it’s hard to predict the rest of the legal trajectory.”

A lawsuit would likely follow Protasiewicz’s impeachment, but it’s unclear whether any judge would agree to even consider if the charges against her fit the circumstances laid out in Article VII. Courts have typically deferred to lawmakers on impeachment, treating it as a “political question” that is not subject to judicial review, Oldfather and several other legal experts told Bolts. Still, Oldfather also said there is no telling how that question would go in Wisconsin because there’s virtually no precedent in Wisconsin’s court system. (No public official has been impeached in Wisconsin since 1853.) 

Even if courts agreed to review the articles of impeachment, the core effect of the GOP’s actions is to affect who sits on the highest court—targeting who gets to even interpret the constitution in the first place. Protasiewicz recused herself this month from a lawsuit asking the state supreme court to block attempts by the legislature to impeach her, signaling that liberals have already lost their edge on the supreme court for cases that touch on her removal.

“It’s a legal question that’s to a greater extent than most floating in this sea of politics,” says Oldfather on the matter of whether impeachment is an appropriate response to the accusations against Protasiewicz.

Vos, the state Speaker, did not respond to a request for comment on these constitutional concerns. On Sept. 13, he said he was setting up an advisory panel made up of former supreme court justices to consider when a justice can be impeached. One of the members is a former conservative justice and former Republican lawmaker who donated to Proasiewicz’s opponent.

West Virginia’s GOP in 2018 similarly tested the bounds of their power once they had the votes. “Impeaching the entire court was entirely political,” says Robert Bastress, professor at the West Virginia College of Law, “it was motivated by Republicans who had just recently taken over the legislature, and they were flexing their muscle.” 

The overhaul of West Virginia’s supreme court dates back to 2018, when Chief Justice Allen Loughry, a Republican, was federally indicted on fraud and witness tampering charges that stemmed from allegations of him using state funds for his personal enjoyment and spending excessive amounts of money on furnishing his office. A concurrent fraud scandal also engulfed Justice Menis Ketchum, a Democrat. By mid-2018, Ketchum had pled guilty in a federal case and resigned, and Loughry was suspended from the court. 

But Republicans also went after the remaining members of the supreme court, alleging in part that they were all responsible for the court’s insufficiently clear ethics policies. 

“They had very good reasons for impeaching two of the justices—two of them were convicted of federal felonies—there were no grounds for impeaching the other three,” Bastress says. 

Workman stood her ground after her impeachment and fought the proceedings until a panel of state judges blocked the Senate from holding a trial and ruled that the legislature was violating procedural requirements in its impeachment proceedings. The state Senate, which by then had acquitted the GOP chief justice and was gearing up for a trial against Workman, fought the ruling but the U.S. Supreme Court let it stand. As a result, Workman got to stay on the court, though she then chose not to seek re-election in 2020. 

But by the time a court intervened to stop West Virginia’s impeachment trials, another Democratic justice, Robin Davis, had already chosen to resign rather than let the proceedings against her drag out. To replace Davis, Governor Jim Justice appointed Evan Jenkins, one of the state’s Republican U.S. representatives. 

“What the legislature was attempting to do was to stack the court with what I would call their puppets,” Davis told Bolts. “They were hell bent on getting control of the court.” She says she did not want to participate in what she viewed as “a very unfair, highly political proceeding.”

Unlike West Virginia in 2018, Wisconsin is a closely divided swing state with obvious stakes for national politics, making it likely that a judicial impeachment would receive far more attention and become a magnet for fundraising and political activism. That also gives Democrats an additional avenue to respond: activating public opinion.

In an interview with Bolts, Ben Wikler, chair of the Wisconsin Democratic Party, stressed that he is focused on putting pressure on Republican lawmakers. Democrats have also launched a multimillion-dollar campaign to air ads on this situation. 

“Our number one goal in the first phase of this fight is to make sure that every Wisconsin voter knows Republicans are threatening to overturn the election, and to encourage them to contact their legislators to let them know how they feel about it,” Wikler says. “It’s going to remind voters exactly why they voted for Democrats in the midterms and threw out Trump in the first place, which is that the Wisconsin Republicans are a clear and present danger to democracy.”

Politically-speaking, Democrats’ strongest asset in the confrontation over their new supreme court majority is the governor’s mansion: If Republicans manage to remove Protasiewicz, Evers would have the power to appoint a new justice to fill the vacancy, and he would presumably pick another liberal-leaning justice to replace her.

Vos and his allies may still be thinking it’s worthwhile to float impeachment because the threat alone could persuade Protasiewicz to bow to their demand and recuse herself on at least redistricting cases; Protasiewicz has not at this stage indicated what she would do. In addition, if they do impeach and convict Protasiewicz before Dec. 1, it would trigger a special election in 2024, giving conservatives a shot to flip back the court next year. 

Still, even if there is an election in 2024, Evers’ interim appointment would sit on the court for long enough that the court would have time to strike down gerrymanders.

To tie Evers’ hands, Republicans may turn to a very aggressive maneuver. If the Assembly impeaches Protasiewicz, it would suspend her and therefore deprive liberals of their majority until the Senate holds a trial that results in either an acquittal or conviction. But the Senate could indefinitely delay trial on the articles of impeachment and keep Protasiewicz sidelined without allowing Evers to appoint a replacement. The state constitution sets no timeline for how quickly the Senate has to take up articles of impeachment. 

“It’s one of those situations where the constitution assumes good faith, regularity of proceedings, and doesn’t spell it out,” Oldfather says.

Protasiewicz could still try to sue to force a resolution, some legal observers say. But here again, she and state Democrats also have political leverage that may prove more important than possible lawsuits. 

At any moment, Protasiewicz could break the logjam by resigning, allowing Evers to appoint a replacement even if at a personal cost to her. In a bizarre twist due to the particularities of state law regarding the timing of elections (there can be no more than one supreme court seat on the ballot on any given year), if Protasiewicz resigned on or after Dec. 1, Evers’ replacement appointee would get to serve until 2031 without facing an special election (seats on the court are currently scheduled for re-election each year from 2025 to 2030)—hardly an appealing prospect for the GOP. 

Seifter, the University of Wisconsin professor, also envisions a scenario in which Evers could claim the authority to appoint a justice if the Senate is delaying a trial.

“It’s hard to say how the courts or other actors will respond in this unprecedented situation,” says Seifter. “For example, the governor could declare that the legislature’s inaction creates a temporary judicial vacancy, or a court—whether the high court or a lower court—could reject the holdup as an encroachment on the judicial function. There isn’t clarity at this point on who would have the final word.”

Republican lawmakers this week also introduced articles of impeachment this week against the state’s elections chief, Meagan Wolfe, whom they have been aiming to fire all summer. The charges against Wolfe stem largely from conspiracies about the 2020 presidential election that have been debunked. Either Protasiewicz or Wolfe would be the first Wisconsin official impeached in roughly 170 years.

Such extraordinary events, if they unfold in coming months, may also ratchet up what other politicians are willing to consider in other states. Republican lawmakers in Montana, Ohio, and Pennsylvania in recent years have talked about impeaching state supreme court justices whose decisions they disliked, but have ended up not moving forward. 

“You see states learning from one another and adopting the strategies that legislators have found successful in other states to gain an upper hand in their courts,” says Keith of the Brennan Center. “And so if this happens in one state, I would not be surprised to see other states follow.”

The post With Impeachment Push, Wisconsin GOP Tests Bounds of Political Power appeared first on Bolts.

The case asked whether the congressional map Alabama adopted in 2021 is an impermissible racial gerrymander. After the legislature drew just one majority-Black district out of seven in a state that is roughly 25 percent Black, a lawsuit filed by voting rights groups argued that this violated section 2 of the VRA. A trial court sided with plaintiffs, but in early 2022, the Supreme Court stayed that ruling, let the state use the map for the midterms, and granted a review of the case. For voting rights advocates, the risk went beyond the court preserving Alabama’s map: they feared its ultra-conservative majority may render Section 2 altogether moot. 

Instead, the court on Thursday issued a reprieve for the VRA. In a 5-4 ruling authored by Roberts—joined by Justice Katanji Brown Jackson, Sonia Sotomayor, Elena Kagan, as well as Brett Kavanaugh—the court reaffirmed Section 2 and used it to strike down Alabama’s map. The state now has to create a new district that will be likely to elect a Black Democrat, an outcome that may trigger similar results elsewhere in the South, starting in Louisiana. 

Voting rights advocates breathed a sigh of relief at the surprise outcome, thrilled to see the VRA survive.

“I was completely floored,” Ruth Greenwood, who coordinated an amicus brief on behalf of the plaintiffs as director of Harvard Law School’s election law clinic, told me of her initial reaction. “It’s not just a win for the plaintiffs, it’s a full-throated defense of the way the Voting Rights Act has been applied to redistricting. It’s pretty fantastic.” 

But they also remained wary as they cheered, warning that by chipping away at the VRA and other voting rights tools for years, the court has left them shadows of their old selves. The decision on Thursday does nothing to revive Section 5 of the VRA, which forced certain jurisdictions with a history of racist voter suppression to seek preclearance from the Department of Justice before drawing new lines or making other changes to their voting rules; absent that requirement, litigation often drags on for years after harmful changes are already into place.

“I view this outcome as a victory, but it’s a victory in the context of profound losses that still need to be addressed,” says Justin Levitt, a law professor at Loyola who is deeply experienced in redistricting litigation. Levitt worked at the DOJ at the tail end of the Obama administration and at the White House as a voting rights adviser in the early stages of Joe Biden’s presidency. 

I talked to Levitt hours after the court’s ruling Thursday to break down Allen v. Milligan, racial gerrymanders, how Section 2 has been applied—and how it will be applied going forward.

In an extensive conversation, Levitt laid out conflicting emotions—calling the ruling a “status quo decision” that largely sticks to long-established precedent but also explaining why, in an era of dominant conservative jurisprudence, that alone feels momentous.

Most court observers expected the court to further gut the VRA. How surprised are you by this ruling?

I’m very happily surprised. And the reason for the surprise isn’t a knee-jerk reaction to the justices’ conservative disposition—this is a very conservative court, and it remains a very conservative court even after today. 

I’m surprised because this court has not been particularly friendly to voting rights, particularly voting rights in the racial justice sphere, particularly the Voting Rights Act. I’m surprised because the chief in particular has expressed hostility to some basic tenets of the Voting Rights Act, including in opinions, including going back to his time at the justice department. And I’m surprised because, in the lead up to this case, a trial court gave an A-plus reading of existing precedent, and the Supreme Court in January of 2022 stayed that; that led to an expectation that the court was prepared to upend an awful lot of settled precedent. So all of the evidence leading up to this case pointed to the potential for a very bad ruling.

Let’s start with the basics: The court said Alabama’s congressional map violated Section 2 of the VRA. What’s the history of Section 2, and how does it assess such a map? 

In 1982, Section 2 of the VRA was amended to say that maps with a discriminatory effect would be illegal. In a 1986 case, Thornburg vs Gingles, the court clarified what that would mean in practice: there would be a number of things the plaintiffs have to prove in order to make a successful case. 

Condition one: The minority group or groups have to be big enough to be a majority in a single member district; if they’re not, that shows that the way the lines are drawn isn’t the thing keeping minority voters from political power. 

The second thing you have to show is that there’s a difference in the way minority voters vote.  The VRA doesn’t assume that, for example, Black voters and white voters are going to vote differently; but if you can prove that they vote differently, and that districts are aligned such that they lose most of the time, then that’s a potential problem. 

The third thing you have to prove is that there’s a tie-in to discrimination; it’s not just dumb luck. This does not have to find a specific intent with respect to the lines: It can be discrimination elsewhere in the social or electoral structure that leaves minority voters at a disadvantage. The easiest way to see it is in literacy tests in the original VRA: It’s obvious if you keep a segment of population from being able to read and write, and then you design a voting rule that says you got to be able to read and write in order to participate, that the earlier discrimination feeds the later problem. The VRA is meant to break down these distinctions; if you have discrimination, and you have an electoral process that turns that discrimination into electoral loss of power, then you’ve got to fix the electoral loss power.

Many voting rights advocates worried that this case would obliterate the test you just laid out, but it did not. How would you describe the ruling’s significance?

The significance of today’s case is that it reaffirmed that, yes, this is how we do VRA cases.  The stakes were that the supreme court could have changed the rules entirely; Alabama was asking the Supreme Court to change the rules in really radical ways—and the court said no. 

The court didn’t make it any easier to win voting rights cases. It just declined to make it much, much, much, much, much, much harder. This is a status quo decision. 

Don’t get me wrong, I’m very excited by today’s result, and I think voting rights activists are very excited by today’s results. But it’s a measure of the fetal position we find ourselves in as voting rights advocates that the court just doing its job gets us excited. The fact that the court didn’t blow up the entire structure, and the fact that that’s cause for celebration, shows you a little bit about how far the window has moved.

When it comes to those radical claims Alabama made in the case, what worried you the most going into the ruling? What changes are you most relieved to avoid?

There were so many. Alabama threw a bunch of grenades out on the ground, and the supreme court just declined to pull any of the pins. The theories that Alabama was putting forward would have radically changed the construction of the VRA across the board, and it shows how much the Overton window has shifted that people took Alabama seriously. 

One of the things they claimed is that you need to show an intent [to discriminate], and not just effect; and that discrimination is the sole reason for the map looking like it did, not just one of the reasons. That’s a radical revision, not just of voting rights law, but of racial discrimination law generally—and of law on any discrimination. Alabama also argued that Section 2 of the VRA doesn’t apply to redistricting at all, which is patent nonsense. 

This was first and foremost a case about Alabama’s map. So how did the court test it against Section 2, and what’s next for redistricting there?

The case in Alabama was whether there should have been a second congressional district drawn in Alabama responsive to Black voters there. Alabama said there should only be one; litigants said at this point there should be two.

So the way in which [the Gingles test] cashes out in Alabama: Condition one, there are enough minority voters to form a reasonable second congressional district responsive to the minority vote. Condition two, voting is exceedingly polarized by race. And is there a tie-in to discrimination? Yes, unfortunately, Alabama shows not only the lingering impacts of past discrimination, but present age discrimination that helps you understand why the loss of minority political power is not just happenstance. 

So it requires a second district that responds to minority voters. 

The trial court didn’t say you have to draw a district exactly here. It said to the legislature to go back and fix it. The legislature gets first shot, and the trial court will be watching very carefully.

Alabama’s map was adopted two years ago and was used in the midterms last year. How do you address the challenge that litigation takes so long that illegal maps are in place for years no matter the final outcome?

Voting cases are different because you can’t fix the damage afterwards. Discriminatory elections have consequences: They’re taking place, and they’re discriminatory, and that means that laws are being put in place and executive actions are being instituted in ways that are not legitimate. The other thing is that VRA cases are hard and complicated; they would take years even if the defendants weren’t fighting like crazy, and they’re often fighting like crazy

That’s why it was so important to have the preclearance regime of Section 5: That stopped the problem before it took effect. And since the Shelby County decision, absent action from Congress, that’s just gone. Folks are right to be frustrated, even with today’s decision.

The supreme court stayed the trial court’s decision against the map in early 2022, saying that it was too close to the election to change it. Could that happen again? Could litigation over a new map drawn by lawmakers drag on for so long that 2024 is held under other illegal lines?

Theoretically yes, because people in robes do what people in robes want to do. So could it happen? Sure.

But I think that’s extremely unlikely. The trial court was very careful in its original opinion, and there’s no shortage of attention now that the Alabama voters were due a map last cycle and they had to sit through an election that was discriminatory. The supreme court has now said the trial court was right, and the trial court is likely to give the legislature a real shot but it is also extremely likely to monitor the legislature’s work very carefully and demand proof that its new math satisfies the VRA and remedies the problem. I think that if the legislature engages in bad faith, particularly in drawing a map that does not fix the problem, the court will step in.

I’d like to look beyond Alabama to what the ruling signal for future cases. For one, there’s similar litigation in Louisiana and speculation of a broader domino effect in the South. What does this decision mean for other states?

I think of Louisiana as the next map standing, the one most directly related, and this will help the litigants in Louisiana proceed in a much more straightforward analysis of the Voting Rights Act than people were expecting. I don’t think it’s far to assume Louisiana is going to fall. There are also pending challenges in Georgia and in Texas, a somewhat related case in Florida (though it’s under the state constitution). So there are certainly other cases in the pipeline. 

You’ve referred to the decision as preserving the status quo. But is there any small way in which it makes it harder or easier for future lawsuits to meet the Gingles test?

It’s mostly the same. There are little caveats in the opinion, caveats that were there in the law before, little pieces that I’m sure states will use to fight back against VRA claims; I don’t think any of them are new, they may be slightly differently phrased.

What’s an example of such a caveat?

The court emphasized VRA cases are hard. The chief said, look, this isn’t that many districts we’re talking about and you don’t have to worry about proportionality because no state has proportional representation for its communities of color. That’s a pretty big societal red flag, to not worry communities of color are represented consistent with their numbers in the population. And that also jumped out at me as recognizing the limitations of litigation under the VRA as currently construed; the court’s not saying you should bring and win a whole bunch of cases.

Justice Kavanaugh, a decisive fifth vote in the case, wrote a concurrence that qualifies some of the majority opinion; he states that race-based redistricting cannot “extend indefinitely.” Does that concern you, as to what it means for this future pipeline?

No. I mean, his concurrence reflects some wishy-washiness, but that wishy-washiness is all over the rest of his jurisprudence. This is a majority that surprised people because it’s a majority that most people were not counting on in VRA cases, and I think the skepticism leading up to today is still warranted for cases tomorrow.

Throughout our conversation, you’ve warned that the situation remains precarious for VRA litigation no matter today’s decision. Taking a step back, how would you assess the health of that law at this juncture—to what extent has it become a shadow of itself?

It’s part of why we’re in the fetal position. There’s absolutely no question that the VRA remains one of the crown jewels of the civil rights movement and that it is still one of the most powerful tools there is. And also, in its current state, it is nowhere near enough. Shelby County was a huge blow; the Brnovich decision made all Section 2 cases harder; and there have been a number of smaller decisions that have also made cases harder to prove and harder to win. 

It’s part of why, like others, I view this outcome as a victory. But it’s a victory in the context of profound losses that still need to be addressed.

It’s part of why there was such a strong emphasis on restoring the Voting Rights Act in the John Lewis Voting Rights Restoration Act. To secure real justice, it still has to be a priority. You really need Congress to step in to set national rules. 

The interview has been edited for length and clarity.

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The suspense on Tuesday rested largely on which of the two conservatives would make it to the runoff. Kelly, who finished narrowly ahead of local judge Jennifer Dorow, with 24 to 22 percent, was Democrats’ preferred opponent due to his arch-conservative record, connections to Donald Trump, and re-election loss three years ago, and at least one liberal organization spent heavily in the run-up to the primary to hurt Dorow’s chances.

But Protasiewicz’s dominant showing became a story of its own. She finished with 46.4 percent of the vote, more than the two conservatives combined, with another liberal-aligned candidate, Everett Mitchell, coming in a distant fourth. Overall, the two liberals combined for 54 percent of the vote, with 46 percent going to the two conservatives. Judicial elections are ostensibly non-partisan in Wisconsin, but parties are heavily involved and the state bench is deeply polarized, with reports that one altercation between justices turned violent last decade.

Should Protasiewicz prevail in April, it would flip control of the court to the left for the first time since 2008. 

This would have huge ramifications for abortion, redistricting, ballot access, and a host of other issues that are often decided by courts, including, potentially, the fate of presidential elections in 2024 and beyond. 

Heavy gerrymanders have enabled the GOP to lock down control of the Wisconsin legislature with majorities largely impervious to shifts in the popular vote, an advantage the party has used to dilute the authority of the state’s Democratic governor and deny him routine appointments. The state also has no popular initiative process, so progressives cannot put measures on the ballot to protect abortion or voting rights, as they have in neighboring Michigan. 

For years already, Democrats have eyed this spring’s supreme court race as their rare opportunity to crack the GOP’s iron-clad and largely election-proof control on state government.

“There’s really only one path in the next several years to undo the most extreme gerrymander in the country, and that’s the April supreme court race in Wisconsin,” Ben Wikler, head of the Democratic Party of Wisconsin, told Bolts. 

Democrats hope that a supreme court with a newly liberal majority may strike down the state’s current political maps. This is what happened last decade in Pennsylvania after Democrats flipped control of the court, which later imposed mid-decade redistricting. If Wisconsin’s congressional map is redrawn, it may sway several seats. New legislative maps, if they make Democrats competitive, could also open the door to a swath of other policy changes.

“As long as Republicans can lose the popular vote but still control majorities, democracy essentially doesn’t exist in Wisconsin,” Wikler said. “But if the conservative dominance of the supreme court ends, the entire apparatus could unravel. Ideas that have enormous popularity in Wisconsin could become law,” he added, mentioning Republican lawmakers’ refusal to expand Medicaid as provided by the Affordable Care Act.

A spokesperson for the state Republican Party did not reply to a request for comment.

Both candidates have made their views on redistricting clear. Protasiewicz has called the maps in place in the state “rigged.” Kelly said this week that he would oppose a court intervention against them. 

Both sides of the spectrum have also cast this supreme court election as a de facto referendum on abortion rights in the state. 

The state has an abortion ban, adopted in 1849, that was triggered into effect by the U.S. Supreme Court’s decision last summer to overturn Roe vs. Wade. Democratic officials in the state are now suing to strike it down, and the case is expected to be heard by the state supreme court after a new justice joins it. 

Gracie Skogman, a spokesperson for Wisconsin Right to Life, which endorsed Kelly in January, told Reuters, “This is Wisconsin’s Roe moment.” Asked what she meant by this remark, Skogman told Bolts, “In the same way that the Roe decision prevented pro-life legislative efforts to fully protect preborn life, a state supreme court decision that finds a right to abortion in our state constitution could have a similar effect.” 

Protasiewicz has campaigned explicitly on her support for reproductive rights. “I believe in a woman’s freedom to make her own decision on abortion,” she says in one ad. A liberal majority, should she join the court, would be likely to overturn the state’s abortion ban, as state courts have done in Kansas and South Carolina.

Republicans are denouncing Protasiewicz as a “left-wing activist,” with Kelly saying on Tuesday that she would replace the rule of law with “the rule of Janet.” They have also attacked her as too lenient on crime. This is a near-exact repeat of their unsuccessful playbook against Jill Karofsky, the liberal contender in the state’s last supreme court race in 2020.

And they will have the same flag-bearer as they did that year. Kelly, who at the time was a sitting justice and was endorsed by Trump, lost that race to Karofsky by ten percentage points. And while he faults Protasiewicz for signaling how she will rule on key issues, Kelly has an intensely right-wing record.

A former president of the local chapter of the Federalist Society, the conservative legal organization, Kelly has a long history of statements that fan the flames of the culture wars. He criticized the U.S. Supreme Court’s decision to legalize same-sex marriage by writing that this “will eventually rob the institution of marriage of any discernible meaning.” He has said affirmative action and slavery are morally equivalent. He called Barack Obama’s presidential win a victory for “the socialism/same-sex marriage/recreational marijuana/tax increase crowd.”

And he has called Medicare and Social Security forms of “involuntary servitude,” Isthmus reported.

After then-Governor Scott Walker appointed him to the court in 2016, Kelly was a reliable member of the court’s conservative bloc, for instance authoring a decision in 2017 that struck down a local ordinance in Madison banning guns in public transit. He also consistently ruled in favor of prosecutors and against defendants.

Before and after his stint on the supreme court, Kelly worked and counseled prominent conservative organizations in the state. The Milwaukee Journal Sentinel reported last week that Kelly had advised the Republican Party on matters related to elections in late 2020, including in the aftermath of the 2020 presidential election. 

The former chair of the state Republican Party told the congressional committee that investigated the Jan. 6 attack on the U.S. Capitol that Kelly was part of “pretty extensive conversations” about conservative efforts to install fake electors that would vote for Donald Trump despite the Republican’s loss. Kelly’s team has denied supporting the scheme and has said attorneys should not be blamed for their clients’ views.

The state supreme court in December 2020 was bitterly divided when it rejected Trump’s bid to reverse his loss in the presidential race in a 4-3 vote. 

Since then, Wisconsin has remained a hotbed for election denialism, a movement in large part overseen by Michael Gableman, a former supreme court justice, and fears remain about similar efforts to overturn a presidential election in the future. Karofsky, the supreme court justice who ousted Kelly three years ago, wrote an article in Slate last week denouncing the harassment she has experienced since her vote rejecting Trump’s lawsuit.

Fueled by this confluence of issues, a slew of organizations, PACs, and billionaires injected millions into the race in the run-up to Tuesday and are preparing to spend far more over the next six weeks. Wisconsin stands nearly alone in the spotlight this year as one of only two supreme court elections this year, alongside Pennsylvania’s this fall, after a far busier 2022. 

It’s also led to increased public attention. Turnout on Tuesday was just a sliver of the turnout in the 2020 presidential election and the 2022 midterms, but it also soared—by 30 percent—compared to the most recent primary for a supreme court election three years ago. The turnout surge was far higher in liberal Dane County, home to Madison.

“The explosive turnout for the progressive candidates in the state Supreme Court primary demonstrates the intensity of Wisconsinites’ desire for reproductive freedom and democracy,” Wikler told Bolts.

The winner of Wisconsin’s runoff will replace conservative Justice Patience Roggensack, who is not seeking re-election, and secure a ten-year term. If Protasiewicz wins, liberals will have a majority on the court until at least 2025, when liberal Justice Ann Bradley’s term expires. 

But if Kelly prevails, keeping the court in conservative hands, liberals won’t have another chance to flip it until conservative Justice Rebecca Bradley’s term ends, in 2026. 

The post Wisconsin’s Supreme Court Runoff Takes Shape as Referendum on Abortion and Democracy appeared first on Bolts.

The Howard R. Young Correctional Institution sits between a creek and Interstate 495 in Wilmington, Delaware. For the last ten years, the prison’s 1,281 residents were counted as constituents of Wilmington’s third city council district.

But when local officials sat down to redraw Wilmington’s city council lines after the 2020 Census, they took a new approach: They counted people in the prison at their last known address in Wilmington—and didn’t count them at all if they hadn’t lived in the city.

“Counting people where they are incarcerated during redistricting, it distorts our system of representative government,” said Wilmington Councilmember Shané Darby, who pushed for the change.

Several states, and a growing number of cities and counties across the U.S., have adopted this reform. They’re seeking to end prison gerrymandering—the term advocates use for counting incarcerated people at the facility where they’re locked up, rather than in their home community. The practice typically dilutes the power of urban areas and communities of color, which see higher rates of incarceration, and at their expense boosts white and rural areas where most prisons are located.

But prison gerrymandering affects more than the representation cities receive in statehouses and Congress, where the issue has drawn significant attention. It also distorts representation within a city, affecting the boundaries that define politics at the local level.

That’s the case in Wilmington, Delaware’s most populous city and one where Black residents make up a majority. The city also has the highest rate of incarceration in the state. And not only does a state prison sit within city limits, Wilmington is also home to a facility for people in substance abuse treatment programs and on work release, which itself has about 150 residents.

Delaware passed a law in 2010 ending prison gerrymandering in state legislative maps—but not in maps for municipal or county governments. That left it up to city and county officials to decide whether to do the same for their local districts. 

Predictably, different places made different choices. Now, for the rest of the decade, people in this state will be governed by local maps that follow conflicting standards. This idiosyncrasy extends to several other states, with local officials’ choices on prison gerrymandering typically receiving little scrutiny.

In Wilmington, Darby and other officials voted to follow in the state’s footsteps in September 2021. Darby said the approach was designed to better reflect the city.

“When you divide up communities, you diminish their power and their voice,” she said.

In the city’s third district, that meant subtracting the 1,281 residents at the prison from its population count. But it also required adding back 281 residents of the district who were incarcerated around Delaware—some at the prison in Wilmington, but many in other parts of the state.

Wilmington’s third district, on the city’s east side, had the highest share of Black residents of any of its eight council districts as well as the largest number of residents who are incarcerated in Delaware. Several census tracts within the district have lower median incomes than the city as a whole.

The new approach to map-drawing left Wilmington’s third district with fewer residents than under the old formula. So the committee shifted its boundaries, adding several downtown blocks to ensure it had a population in line with other districts.

The end to prison gerrymandering enjoyed wide support among the politicians redrawing the lines in town.

The city finalized its maps in December 2021, and voters will cast ballots in the new districts for the first time in 2024. Separately, the city council adopted a measure sponsored by Darby to continue drawing maps this way in future cycles of redistricting.

“I was glad that we were able to count folks back in their home district and not overinflate the population of the district that has the facility,” said Dwayne Bensing, legal director of the ACLU of Delaware. In a newspaper editorial, Bensing wrote that Wilmington “avoided a prison gerrymandering fiasco.”

He told the Center for Public Integrity and Bolts that the redrawn districts weren’t likely to lead to huge political changes in the city, but in Wilmington’s compact districts, with about 8,800 people each, it’s a meaningful step.

The new approach “ensures that every person in Wilmington has an equal say in their government,” said Mike Wessler of the nonprofit Prison Policy Initiative, which tracks reform efforts across the country.

A rising effort to restrict prison gerrymandering

Exploding prison populations in the 1980s and 1990s, fueled by America’s war on drugs, reshaped communities and political maps across the country. They also added weight to the issue of prison gerrymandering.

The city of Anamosa, Iowa, became a poster child for challenges at the local level: In one of its city council districts, about 95% of residents were incarcerated in a state prison. (After a local man won the seat with two votes in 2006, he told a reporter, “Do I consider [incarcerated people] my constituents? … They don’t vote, so, I guess, not really.”)

Prison gerrymandering “distorts our democracy,” Wessler said. “It fundamentally alters political representation, and that harms every single person, whether they live one mile from a prison or 1,000 miles from a prison.” He said local governments were early leaders on the issue, with over 200 adopting reforms in the 2000 and 2010 cycles.

In 2010, New York and Maryland passed laws ending prison gerrymandering at the state legislative level. By the next cycle, a decade later, over a dozen states had passed similar laws. 

Nearly half of Americans now live in a state that has taken action to end the practice in drawing statewide maps, the Prison Policy Initiative estimates.

Wessler called the adoption of these laws “a sea change” from the situation two decades ago.

States that ended prison gerrymandering heading into the last redistricting cycle were nearly all run by Democrats, with a wave of newcomers passing the reform in rapid succession over the past four years — including Colorado, New Jersey and Virginia. In these states, with vast disparities in the geography of where people are arrested and where they serve prison terms, legislative maps now count incarcerated people at their last known address.  

The issue has attracted attention in some areas that tilt Republican. Earlier this month, Montana’s state Senate passed a bill to end prison gerrymandering after the state’s bipartisan redistricting commission unanimously supported the change.

But any movement to end the practice altogether would have to come at the federal level. With that in mind, a group of three dozen advocacy organizations are calling on the U.S. Department of Commerce to change the tally in the 2030 Census. They write in a letter that “counting incarcerated people at home ensures that communities hit hardest by mass incarceration get equal representation in state and local governments.”

Even within a state, a patchwork of laws

The combination of state and local laws leaves some Americans without any representation.

Take the situation in Delaware. Wilmington ended prison gerrymandering, but Newark, the state’s third most populous city, didn’t. That means a Newark resident incarcerated in Wilmington wouldn’t be counted in a city council district in their hometown — and also wouldn’t be counted in the city where they are incarcerated.

For the purposes of city council representation, they are counted nowhere.

Muddying the waters further: New Castle County, which includes Wilmington, still draws lines for its own districts that count people as living in prison.

“This fits within a broader scheme of a patchwork of laws governing voting rights within the state of Delaware,” said the ACLU’s Bensing. Several states take a scattershot approach to the issue, with inconsistent requirements for congressional districts, state legislative districts and even school boards.

A similar dynamic has played out in Nevada: The state ended prison gerrymandering in congressional and state legislative districts, but left decisions at the city council level up to local governments. In the most recent cycle, Las Vegas counted incarcerated people at their last pre-prison address, and Reno did not.

Some of these asymmetries stem from state legislators’ decision to exempt local governments from the laws they passed. Kathay Feng, an advocate at the voting rights organization Common Cause, said this may have been a tactic in some states to avoid paying the cost of local changes, or to sidestep conflicts with “home rule” laws that give localities wide latitude.

Darby, the Wilmington councilmember, was happy to bring her city in line with the way Delaware draws state legislative districts.

Now, she says she’d like to see governments include incarcerated people in the political process. Delaware currently bars people in prison with felony convictions from voting, and it also disenfranchises thousands of people on probation or parole. The state makes it more difficult to regain voting rights than most in the Northeast.

“How do we take it a step further?” Darby asked. “They need rights to vote — not everybody, but some people who are in prison should still be able to vote and have their voices be heard.”

Currently, only Maine, Vermont and Washington, D.C., allow people in prison to vote. Many Americans held in local jails also retain their right to vote but find it nearly impossible to cast a ballot. Advocates say that this “de facto disenfranchisement” affects the majority of the roughly 445,000 people in American jails who have not been convicted of a crime. A handful of states and counties around the U.S. have made a push to facilitate jail voting, including establishing precincts in jail, but some local officials have resisted such efforts.

As a result, thousands of Americans are counted for the purpose of redistricting where they are detained, increasing that area’s political clout, without the ability to participate in local elections.

And until the Census Bureau changes the way it counts incarcerated people, advocates and elected officials will be forced to address prison gerrymandering one place at a time. 

“The city of Wilmington is small, and the population of the prison wasn’t anything crazy,” said Darby, who sponsored the measure to permanently end the practice in the city. “But I thought it was important to make that point.”

The post How One City Ended Prison Gerrymandering appeared first on Bolts.

But the cast of characters who will steer the process got reshuffled last week, with two newcomers set to play influential roles. 

Meanwhile, the Republican chief justice who had sided with Democrats in last year’s gerrymandering cases exited the stage on Dec. 31. 

Some Democrats hope that they secured a new Republican ally—this time in the legislature, where Jason Stephens was unexpectedly elected Speaker thanks to a bipartisan coalition that included all House Democrats—and that this may mitigate the maps’ partisan bias upfront, before they reach judicial review. But once they do, the GOP’s odds of securing favorable rulings for its gerrymanders has shot up dramatically due to a new conservative justice. 

“I suspect the political tricks to undermine democracy will go the distance,” said Desiree Tims, the head of Innovation Ohio, a progressive organization that lobbies for fair maps and is part of Ohio’s Equal Districts coalition. “The redistricting process should unfold in a democratic way, which has not been our experience in Ohio.” 

Joe Deters, the new justice who shifts the high court to the right

Two days before Christmas, Republican Governor Mike DeWine filled a vacancy on Ohio’s supreme court by appointing Joe Deters, the tough-on-crime prosecutor of Hamilton County (Cincinnati) who is close to the state’s GOP power brokers. “Joe Deters has the right combination of experience, legal knowledge, and passion for public service that will serve the citizens of Ohio well,” DeWine said. Deters was sworn-in this past Saturday, just a week after Justice Maureen O’Connor, one of the court’s anti-gerrymandering crusaders, was forced to retire due to her age. 

The switch greatly alters the court’s ideological balance and likely flips it into a majority willing to uphold Republican gerrymanders.

“It suggests that the minority will become the majority, and there will not be the check on the mapmakers that there was during the 2021-2022 mapmaking,” said Catherine Turcer, who leads Common Cause Ohio, a voting rights organization, about Deters’s arrival on the court.

Katy Shanahan, who last year worked as the Ohio state director of All On the Line, an anti-gerrymandering group, agrees. “Now the state supreme court has an ultraconservative four to three majority, which to me signals that [Republicans] will get a greenlight on whatever they want to pass,” she said. 

O’Connor, a Republican, sided with the court’s three Democratic justices last year in a series of rulings that invalidated the congressional and legislative maps adopted by the GOP-controlled Ohio Redistricting Commission because they “unduly favored” the Republican Party in violation of the state constitution. The three other Republican justices voted to sustain the maps but they were on the losing side of the repeated 4-3 decisions. 

“When the dealer stacks the deck in advance, the house usually wins,” the majority wrote in January 2022, in the decision that struck down the GOP’s first congressional map. Over and over again after that—the court invalidated congressional and legislative maps in seven separate rulings between January and July—the justices faulted Republican map-drawing for packing Democratic voters into just a few districts while also cracking diverse urban areas to dilute their representation.

Still, Republican lawmakers ignored the court’s rulings and ran out the clock by passing an endless stream of gerrymanders; eventually, a federal court allowed a set of maps drawn by the GOP to be used in the 2022 midterms only, helping solidify Republican supermajorities. And with a new round of redistricting now looming, last year’s court majority has unraveled: O’Connor reached the mandatory retirement age, Republican incumbents swept November’s supreme court races, and DeWine added a political ally—Deters—to the court. 

Deters has no track record on matters that involve redistricting: He has worked as a prosecutor for much of the past forty years, with the exception of a brief, scandal-tarred stint as state Treasurer in the early 2000s. But many state observers told Bolts that they harbor little uncertainty over how Deters will approach those cases. 

That’s in part due to Deters’s personal proximity to Mike DeWine, the governor, and to Pat DeWine, the governor’s son and a justice on the state supreme court. Besides donating to the DeWines, Deters has exchanged favors with the family. In 2017, Pat DeWine asked Deters to give his college-aged son an internship in the prosecutor’s office and Deters obliged, as Cincinnati’s City Beat reported at the time. 

Deters and Pat DeWine faced ethics complaints and calls for investigation over this internship, but Deters defended the arrangement, insisting it was proper for him to do a favor for a friend.

Now, the two friends will sit on the supreme court together, called upon to decide the fate of initiatives that Mike DeWine is involved in. Last year, Pat DeWine voted to uphold the gerrymanders of Ohio’s redistricting commission, even though his father is a member of the panel, voted to approve the maps, and has said that he believes the maps passed constitutional muster; Pat DeWine rejected calls that he recuse himself from last year’s cases.

Critics of the state’s redistricting process say all of these intricate relationships will now affect the fate of upcoming legal disputes over district boundaries.

“Mike DeWine knows exactly who he’s appointing to that court. You’re not going to waste a political appointment, given the stakes of, among other things, the redistricting process to someone who you don’t know for sure how you think they should vote on those issues,” said Shanahan. “I think anyone suggesting otherwise doesn’t understand politics.” 

“Joe Deters will not be like Chief Justice Maureen O’Connor,” she added.

Deters’s record on criminal justice also reveals a very different outlook than O’Connor brought to the court. Last year, O’Connor sided with Democratic justices in a case that lightly reformed the state’s bail system but provoked fierce backlash from state Republicans. Deters responded by fueling a conservative counter-offensive against bail reform, which resulted in a constitutional amendment that expanded pretrial detention in November.

Deters has long cultivated this tough-on-crime persona, including on issues that the court will likely confront in the future, from calling a group of defendants in a 2015 case “soulless and unsalvageable” to staunchly championing the death penalty.  

“What we always hope for the courts is that party labels don’t matter, and that was certainly the case with Maureen O’Connor,” Turcer said. “But I think it’s very important that we be realistic about that as well.”

Jason Stephens, the new speaker who may introduce some uncertainty into redistricting 

Some Ohio politicians did defy partisan expectations last week just a few blocks from the supreme court, in the state capitol. 

Largely sidelined in recent years, Democrats injected themselves into legislative proceedings when their House members coalesced with a third of the GOP caucus to elect Stephens as state Speaker. Stephens defeated the candidate who was expected to prevail, a very conservative lawmaker selected by most of his fellow Republicans.

The shock result led some Democrats and some anti-gerrymandering advocates to speculate that it may herald an “honest effort to get bipartisan maps,” as The Columbus Dispatch reported last week. 

“We are certainly encouraged to see a speaker that was chosen by members of both parties, and we hope that that bipartisanship will continue in creating district plans that truly serve the people,” Jen Miller, head of the League of Women Voters of Ohio, told Bolts. 

But no concrete promise has been reported between Stephens and Democrats on redistricting or any other issue. Allison Russo, the chamber’s Minority Leader, did not reply to a request for comment on whether Stephens made any commitments in exchange for Democratic votes. 

Stephens’s office also did not reply to requests for an interview. 

The new Speaker himself has a broadly conservative record as a legislator, including supporting new restrictions on abortion and voting for a legislative package that restricted ballot access in December. That package, which was signed into law by Mike DeWine last week and has been strongly denounced by voting rights groups, restricts the availability of ballot drop boxes, eliminates a day of in-person early voting, and makes the state’s voter ID requirements more burdensome by disallowing some forms of identification, among other changes. 

A number of advocates interviewed by Bolts cautioned that they had no high hopes for Stephens’s leadership. Even if he were to be interested in toning down gerrymandering, they said, he has his work cut out for him given the recent records of Ohio’s other Republican officials.

“I’m cautiously pessimistic about a deal between the Ohio Democrats and Republicans,” said Tims. “The Republicans have shown us their hand every single time throughout the process. It has never been a fair shake.”

“It’s a little hard to not feel like we’re just in another Lucy and the football moment,” Shanahan said about Stephens securing a promotion thanks to Democrats. “I hope that we’re not, I hope Lucy does hold down that football…, I hope that what comes out of this is positive movement away from the fringe extremes that our state legislature has been residing in for years. I’m skeptical, but I hope to be proven wrong.”

The upcoming map-drawing will be handled by the redistricting commission, a panel made up of the governor, auditor, and secretary of state—all of whom are currently Republicans—plus four members that represent the four legislative leaders in each chamber. (The leaders typically serve on the commission themselves.) That means that, even if Stephens were to resist aggressive proposals, there would be four other Republicans on a seven-person body.

Those include Matt Huffman, the state Senate President who played a lead role in ramping up the scope of gerrymandering last year, and Frank LaRose, the secretary of state who last year floated impeaching O’Connor from the state supreme court over her redistricting rulings.

But Stephens is still in a position to at least change last year’s dynamic, if not soften the maps, if he so chooses.

Ohio’s outgoing Speaker Bob Cupp played a very aggressive role in 2022 in controlling the mapmaking and in boxing other officials out of much of the process; legislative leaders wield special influence, especially over how their own chamber’s lines are redrawn. Turcer, who described herself as “guardedly optimistic” about the new Speaker, also floated the possibility that Stephens may at least make the redistricting process more transparent. 

“This is a systemic problem”

Several Ohio advocates told Bolts that their strongest hope about Stephens was that his bipartisan win may at least kill a controversial change to the state’s referendum process—one that would make it harder to change the redistricting process in the first place.

Late last year, Republicans floated increasing the threshold of passage for citizen-initiated ballot measures from 50 to 60 percent. That would make it far harder for independent groups to secure wins over policies that the legislature fiercely opposes, such as abortion protections. The idea did not pass the legislature in late 2022, leaving a path—for now—for redistricting reform.

Miller of the League of Women Voters and Turcer of Common Cause Ohio each said that their groups were exploring how to champion a new citizen-initiated ballot measure in Ohio to implement an independent redistricting commission, like the ones used in Arizona and Michigan. But neither committed to a timeline for such a push. 

In 2015, voting rights groups championed an amendment that put in place the system in use now but Republicans weaponized it in ways that advocates say was unintended. One of the components of that reform was that a map would only be in place for four years, rather than the usual ten, if it failed to gather bipartisan support; it turned out that Republicans in passing their 2022 maps did not care about this constraint, which in fact only gave them the opportunity to refine their lines more frequently. As a result, and no matter what happens in the run-up to 2024, Ohio will yet again need to draw new maps in the lead-up to 2026.

“At some point, there’s an insanity in doing the same thing over and over again,” Turcer told Bolts. “It’s not a matter of new tools—community mapping, citizen engagement, all the different ways that voters can show how their district is manipulated. We’ve tried all that. At this point, we need to actually take the elected officials out of the equation and put this in the hands of an independent insulated citizens commission.”

Federal Democrats mulled institutional protections against gerrymandering when they controlled Congress in 2021 and 2022, but those did not pass due to several senators’ opposition to changing the U.S. Senate’s filibuster rules. “HR1 would have solved a lot of these problems,,” said Tims, referencing the federal legislation, “and because of that failure, voting rights and democracy continue to erode in statehouses across the country.”

“These folks are drunk on power, essentially,” Turcer said of politicians in charge of drawing the maps that keep them in power. “And what do you do with drunks? You take away their keys.”

The post In Ohio’s Redistricting Redo, a New Justice and a New Speaker Will Steer the Ship appeared first on Bolts.