Supreme Court Allows States to Use Illegally Altered Congressional Maps in 2022 Midterm Elections

In the upcoming midterm elections, states could use cards deemed illegal by a federal court.

You read that right: The U.S. Supreme Court recently barred federal courts from requiring states to correct their newly adopted, but illegal, congressional maps before the 2022 midterm elections.

In Merrill v. Milliganthe Supreme Court in February 2022, stayed a lower court’s decision that ruled that Alabama improperly redistributed its congressional seats. The lower court found The Alabama cards ensured that black and Democratic voters wielded less political power in Alabama’s congressional delegation than they otherwise would or should. He forced Alabama to immediately redraw its congressional map.

The Supreme Court left Alabama’s congressional redistricting – seen as a violation of the Voting Rights Act by the lower court – in place until the 2022 midterm elections, without deciding for itself whether the cards are illegal.

This ruling will guide federal judges as they review similar cases in states across the country.

The decision will affect who gets elected to the U.S. House of Representatives and could determine congressional oversight. It may not shift control of Congress from one party to another, but it will almost certainly affect the majority of the party that controls Congress.

The Supreme Court has frozen a lower court ruling that Alabama must draw new congressional district maps after revised ones were ruled illegal and would have reduced black voting power in the 2022 election.
Mandel Ngan/AFP via Getty Images

The ideal

The The U.S. Constitution requires a census every 10 years, which triggers a redistricting of Congress. As the Congressional Research Service describes this process“redistribution is the process of allocating House seats among the 50 states following the decennial census. Redistricting refers to the process that follows, in which states create new congressional districts or redraw district boundaries to accommodate changes in population and/or changes in the number of House seats for the state.

The constitutionally mandated redistribution of the House of Representatives and the requirement that the Supreme Court enshrined in the 1960s that one person’s vote in a state should be approximately equal to another person’s vote in that state – known as “one person, one vote” – requires virtually all states to redistrict after each census. States that lose or gain congressional representation due to population loss or gain are more clearly required to redistrict.

In the wake of the 2020 Census, West Virginia lost a representative. Texas won two repsfor example.

States that do not gain or lose representation in Congress must also redesign their congressional districts. Intra-state population shifts—people moving from one part of the state to another—over the past decade will require new districts to be drawn to create districts of equal population. A state’s congressional districts must contain roughly equal populations to abide by the one person, one vote doctrine of the Constitution.

Thereforea state that has been allocated 10 representatives and has a population of 8 million must redraw itself to ensure that each of its congressional districts contains about 800,000 people.

Tall windows of a commercial building covered with multi-color campaign posters.
Election posters in Huntington, West Virginia, October 19, 2018; the state lost a seat in the United States House of Representatives in the 2020 redistricting.
Michael Mathes/AFP via Getty Images


State legislatures or state redistricting commissions draw the congressional districts of a state.

Such redistricting can lead to racial gerrymandering, that can diminish the power of racial groups and is unconstitutional or illegal under federal law. It can also lead to partisan gerrymandering, which gives an advantage to one party or the other. It may violate state law, but unlike racial gerrymandering, it does not violate federal law or the United States Constitution, the The Supreme Court decided in 2019.

Voters, political organizations, and lawmakers, among others, can challenge redistricting plans. Dozens of cases have been filed in state and federal courts challenging aspects of Congressional redistricting plans drawn up in the wake of the 2020 census. Litigants can request that districts be redistributed either by the legislature or the redistricting commission that originally drew them, or by the courts.

The legal principle that justice delayed is justice denied would suggest that inappropriate gerrymandering should be corrected as soon as possible. The Supreme Court seems to disagree.

The court rests its obligatory indolence on Purcell’s principle, which claims that electoral changes occurring too close to an election will confuse voters. The court did not defined how far from an election is too close to an election. The court also does not appear to be examining closely how crucial such electoral change might be in creating a fair electoral outcome.

Certainly, some changes that occur on the eve of an election – altering who can vote, how to vote, and where to vote – may unfairly confuse voters and provide no meaningful benefit. But redrawing an electoral map months before a general election may not be that kind of disruptive change. Redrawing maps as primary elections approach can be confusing; however, primary elections may be delayed until legal maps can be drawn.

Congressional candidates may be inconvenienced if congressional precincts are changed relatively close to an election, regardless of how “close” is defined. However, their disadvantages may not outweigh the need to design fair neighborhoods that give everyone an equal voice.

The effect

The court’s choice to allow illegal congressional redistricting plans to continue will likely affect the election to the House of Representatives.

How districts are drawn can determine which candidates run and which candidates win. The gerrymandered districts of a state give a different congressional delegation than if the districts were not gerrymandered.

The Supreme Court’s approach can have two important effects. First, the power to gerrymander or stop gerrymandering will now rest with state officials and judges.

At New York, state courts tried congressional districts the State Assembly drew attention illegally under state law for the benefit of the Democrats. The New York Court of Appeals, the highest court in the state, ordered that ungerrymandered maps be drawn. New maps – drawn by an independent researcher — which are more Republican-friendly than previous maps were released in mid-May.

The The House of Representatives is created by 435 local races. If a party is a clear winner in state-level gerrymandering battles, the winning party will keep their spoils until at least 2024. This will affect legislation passed by Congress and preparations for the 2024 presidential election.

Second, even if Democrats and Republicans are equally successful in their ability to win state-level gerrymandering battles, the Supreme Court’s refusal to allow federal courts to deal with gerrymandered congressional districts may lead to districts which are more gerrymandered on both sides than they would otherwise have been. This too can affect the composition of the House of Representatives.

If gerrymandered constituencies produce more partisan representatives, Supreme Court actions will likely be lead to a more strongly partisan Chamber and less likely to produce bipartisan legislation. This may have implications for abortion, fiscal and economic policies, and the many other issues that Congress may or may not address.

The Supreme Court’s mandate to lower courts to take time to decide gerrymandering cases may seem procedural. However, it can have real and measurable effects in the lives of Americans.

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