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While both parties anger Gerrymander, state courts block the way

State courts in both Democratic and Republican states have been aggressively tearing down rigged political maps as this year’s redistribution battles drag on and begin to wreak havoc in the upcoming primary election.

In Maryland last week, a state judge tossed out a congressional map drawn by Democrats, citing an “extreme gerrymander.” In North Carolina, the state Supreme Court invalidated maps drawn by Republicans in February. And in New York, a state judge ruled Thursday that a map drawn by Democrats was “unconstitutionally drawn with political bias.”

The spate of rulings reflects an emerging reality: that state rather than federal courts have become a primary firewall against gerrymandering as both Democrats and Republicans seek to carve maximum benefits in the cards they control. The parties were emboldened by a 2019 Supreme Court ruling that federal courts cannot hear challenges of partisan gerrymandering, although they can still hear charges of racial manipulation.

At the same time, however, state judges in at least five states — many, if not all, from the opposing party of who drew the districts — have struck down distorted cards as illegal partisan Gerrymander.

“There’s a fire, and at least some people are holding the hose,” said Chad Dunn, an elections attorney who has represented Democrats in snap election cases.

Plenty of appeals and final decisions remain, but for now the spate of court decisions leaves the redistribution cycle roughly where it’s been for weeks: in a surprise draw.

Neither Republicans nor Democrats have gained a significant advantage from the decennial process in which state legislatures draw maps and party allies argue about it in court. That cycle hasn’t proved to be the nightmare many Democrats feared, but recent court decisions have slowed their attempt to return to a more even map through aggressive maneuvering.

The legal back-and-forth has also left some states’ maps in limbo relatively late in the area code calendar, causing confusion in states like North Carolina and Maryland that have had to move area codes. Delays due to legal challenges are common with relocation cycles, but the process is coming particularly late this year as the pandemic has significantly delayed census results and slowed the start of relocation.

In states like New York and North Carolina, the judge or judges tearing down one party’s maps come from the other party.

“That’s clearly a factor, and while I wouldn’t call the courts biased, the judges are important,” said Michael Li, a district redistribution expert at the Brennan Center for Justice. He added that judges willing to hear such cases and rule them in favor of the challenger often “happened to be the opposite party to the party that drew the cards.”

But in other cases, judges have defied political expectations.

Narrowly divided state supreme courts in Ohio and Wisconsin, controlled by Conservatives, have sided with Democrats — though in each case the court has a swing justice that often sides with Liberal members. And in Wisconsin, the Supreme Court’s decision on a map drawn by Gov. Tony Evers, a Democrat, was later overturned by the US Supreme Court.

In Maryland, an aggressive map drawn by Democrats was invalidated last week by Lynne Battaglia, a state court judge who served as chief of staff to former Senator Barbara A. Mikulski, a five-year Maryland Democrat who was appointed state attorney by President Bill Clinton.

Doug Mayer, the president of Fair Maps Maryland, the organization that has allied itself with Gov. Larry Hogan, a Republican, who has questioned the state’s maps, said his attorneys told him not to speak publicly about the policy by Judge Battaglia, and that “I’m very glad I did that.” Gerrymandering, Mr Mayer said, should be a practice both major parties agree to abolish.

“I think gerrymandering is voter suppression, no matter who is doing it,” Mr Mayer said. “Republicans doing it in Texas and North Carolina are just as bad as the SOBs up here. More people need to say that.”

The Supreme Court this year made conflicting decisions about whether lower courts can send lawmakers back to the drawing board.

In February, judges restored a congressional map of Alabama after a lower court ordered the Republican-controlled state to draft a black-majority second district. But in March, the Supreme Court invalidated a congressional map of Wisconsin drawn by the state’s Democratic governor and ordered a new one to be drawn up.

“This unprecedented act and the contradictory use of judicial power are manifestly and sadly undemocratic,” said Eric H. Holder Jr., former attorney general and chairman of the National Democratic Redistricting Committee.

Marc Elias, a Democratic attorney and prominent voting rights advocate, argued that his defense of cards that clearly help Democrats is not at odds with his fight against Republican gerrymander.

“What voters expect in Alabama to be a fair map won’t necessarily be the same in a state like Maine,” he said. “I tend to look at the state maps and ask one question, ‘Is it legal or is it not legal?’ I leave it to other social scientists to decide whether or not they find it objectionable for other reasons.”

State courts are a relatively new place for case retrial. For decades, most legal challenges to map manipulation were fought in federal courts, and the Voting Rights Act of 1965 was often used to challenge unfairly drawn precincts.

But in 2017, four years after the Supreme Court eroded many of the protections of the Voting Rights Act, the League of Women Voters challenged Pennsylvania’s 2011 convention tickets in the state court system, arguing that the state’s constitution “defended the right of the Voters protect themselves by participating in the political process, expressing political views, joining or supporting a political party and casting a vote.”

The Pennsylvania Supreme Court, leaning on Democrats, sided with the women’s group in January 2018, finding that the cards “unambiguously, clearly and distinctly” violated the state’s constitution. The decision served as a signal to lawyers and good government groups across the country.

“There is a renewed interest in this rich vein of state constitutional law and tradition that many people had ignored because we, as attorneys, have been training for 60 years that the federal court is where we will defend rights,” Mr. said Li. “And we tend to treat state courts and state constitutions almost like stepchildren. And then we realize that there really is a lot in it.”

https://www.nytimes.com/2022/04/02/us/politics/congressional-maps-gerrymandering-midterms.html While both parties anger Gerrymander, state courts block the way

Ethan Gach

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