Could New District Maps Make This Year's Midterm Elections the Fairest of Them All?

By Laura Temme, Esq. on April 14, 2022

While the news reports on Democratic Party fears of an electoral bloodbath, U.S. House of Representatives district maps for 2022's midterm elections appear more evenly split than they have been in a century. What happened? A fair amount of partisan gerrymandering on both sides of the aisle, some help from the courts, and a lot of luck resulted in a map with nearly equal numbers of districts that lean Republican and Democratic.

Extreme Gerrymanders Cancel Out

We've written a fair amount on FindLaw about gerrymandering moves by Republicans, and not for political reasons. In the recent past, Democrats just haven't been particularly aggressive about gerrymandering — nor were they good at it. But 2022 saw some interesting moves by Democrats that experts say could lead to a gain of 12 seats in the House of Representatives.

For example, redistricting in New York City included linking Park Slope (which typically votes Democrat) and Staten Island (which leans more conservative). Experts note the change could unseat the city's lone GOP representative, Nicole Malliotakis.

But it seems the more extreme redistricting moves by both parties mostly canceled each other out, and involvement by the courts introduced more district maps drawn by commissions or other third parties.

How the Judicial Branch Got Involved

Federal courts are meant to be the least political branch of the United States government. Of course, political issues arise occasionally, or sometimes a lot (we're looking at you, 2020 election). But if a court believes a case turns on a "political question," they do not get involved. The political question doctrine has been around for over 100 years but appears most notably in the Supreme Court's decision in Baker v. Carr.

When it comes to redistricting, the Supreme Court has taken the political question doctrine even further. In 2019, SCOTUS decided in Rucho v. Common Cause that partisan gerrymandering presented political questions the courts cannot interfere with.

However, they can intervene when there are claims of discrimination. In 1993's Shaw v. Reno, the Supreme Court held that a redistricting plan with bizarre "snake-like" districts implicated racial gerrymandering, which triggers strict scrutiny by the courts.

And that's where many extreme gerrymandering efforts have met their end.

Earlier this year, court rulings in North Carolina and Pennsylvania undercut some very valuable gerrymandering efforts by Republicans. In March, the Supreme Court refused to block orders issued in those cases, so those maps will remain in place for the 2022 election. Meanwhile, the Ohio Supreme Court rejected (for the third time) plans by the Ohio Redistricting Commission that heavily favored Republicans.

Democrats faced defeat in the courts as well. A judge in Maryland threw out a map that included an "extreme gerrymander" in their favor just three weeks ago. Legislators will likely appeal that decision to the state supreme court. Interestingly, that decision got around the political question doctrine by relying on a portion of Rucho in which Chief Justice John Roberts suggested that "provisions in state statutes and state constitutions can provide standards and guidance for state courts to apply."

Of course, we won't know exactly how these new maps will affect Congress until November. But it seems we're looking at a relatively fair fight.

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