An update on mid-decade redistricting

[GALeftist]

We now have a clearer picture in a couple important states of where things stand, so I'd like to revisit how redistricting might affect U.S. House races in 2024.

The Major Players:

New York: After the disastrous LaSalle nomination, Hochul's nomination of Associate Judge Rowan Wilson as Chief Judge and former Solicitor General of New York as Associate Judge sailed through the State Senate. New York Democrats are clearly invested in wresting back the ability to gerrymander the state (which could net Democrats seven representatives versus their 2022 results), so the real question is around Halligan, Judge Shirley Troutman, and to a lesser extent Judge Anthony Cannataro.

My take: Troutman voted to against the previous New York maps on procedural grounds, explicitly denying to call them unconstitutional gerrymanders. In my view, it seems like a safe bet for her to allow the legislature another bite at the apple, and I suspect that she will OK a map that follows the letter of the law. Given how focused NY Democrats appear to be on redistricting, I would be pretty surprised if Halligan didn't rule their way on the bench; having never been on the bench, she has no paper trail, but evidently the Obama administration thought she was liberal enough to nominate to the DC circuit. I mentioned Cannataro because he has sided with the liberals on occasion since DiFiore's departure, but I think it unlikely he flips here. All in all, I would say there is a better than even chance of a Democratic gerrymander, but certainly not guaranteed; perhaps an average change of D+4.

North Carolina: Not much to say here. North Carolina Republicans now have a 5-2 majority on the Supreme Court which has already begun the process of reversing the decision that struck down the initial Republican gerrymander. Manning, Jackson, and Nickel are toast; the only real question is regarding Don Davis's NC-01. There has been a Black-influenced seat in northeastern North Carolina basically forever, and if they try to axe it there will definitely be a federal lawsuit. I think it would have a good shot in the Fourth Circuit, but I don't know about the Supreme Court, especially given that NC-01 isn't even majority Black anymore. Then again, even the current, maximally blue NC-01 is almost certainly on borrowed time.

My take: coin flip as to whether they try to axe Davis. Average of R+3.5.

Ohio: Like North Carolina, Ohio Republicans attained a solid 4-3 majority in 2022 which would doubtless rubberstamp any map that ends up before them. The constraint this time, unexpectedly, is the State House, where Speaker Jason Stephens was elected thanks to Democratic support. They say there was no deal (lol) but given that the minority leader specifically mentioned that Stephens would work with them on redistricting, there seems to be some reason for Democratic optimism here. There are basically two options here; either the maps get punted to the commission, where the House and Senate minority leaders, Stephens, and DeWine cast 4/7 votes for a compromise map until 2030, or they get punted back to the legislature, in which case Republicans draw a 4-year gerrymander.

My take: I think Landsman almost certainly gets a Hamilton sink; the contortions that seat is going through are getting absurd. I think it's basically a coin flip as to whether they end up axing Sykes and Kaptur; average outcome of R+1.

Wisconsin: In case you've been living under a rock, there is now a solid liberal majority on the Wisconsin Supreme Court (or there will be one soon, anyway), and various groups have promised to get challenges to the state's legislative and congressional maps the day that Protasiewicz is seated. Wisconsin is a bit tricky, because although the current map stinks you could argue that a good map would still be 6R-2D if you're not paying attention to proportionality, but the court clearly does.

My take: The congressional maps are all but dead; the only read question is whether Steil and Van Orden are dead as well. In 2022 Steil won his Trump+2.4 seat by 9, so it really depends on how they split Milwaukee; if his seat is worse than Biden+5, I'd rate him an underdog. My guess is that it'll be a bit narrower than that, though, probably like Biden+4 or something. Meanwhile, Van Orden won his Trump+5 seat by less than 4 points, which is trash, and it's pretty easy to make his seat quite blue if you split Dane, which they very well might. I'd say the average outcome is D+1.5.

Overall, my average is D+1, but I think you could make a good case that the modal outcome is more like D+4-6. For now, Republicans are no longer clearly going to be the beneficiaries of mid-decade redistricting on net.

Wild cards:

Merrill v. Milligan: I think this case has been somewhat unfairly dismissed out of hand because of SCOTUS's conservatism; I encourage everyone to go read the oral arguments if you haven't already. It seemed to me that Roberts and Kavanaugh, at least, were pretty sympathetic to the plaintiffs; it was hard to tell where Thomas stood. Do I think that SCOTUS is going to rule in favor of the plaintiffs? No, not at all, because the court sucks right now and it stayed the lower court for completely insane reasons in 2022, but I think it's worth keeping an eye on. If SCOTUS does surprise me, it's obviously D+1 in Alabama and possibly D+1 in Louisiana too, and might help save Don Davis, who knows. People have mentioned South Carolina, too, but I really don't think there's any way to get another VRA seat there, you've got a better shot in Georgia, if anything. In oral arguments the court at least made it pretty clear that they weren't willing to overrule Gingles to the extent that existing VRA seats could be gerrymandered away, so that's something.

Moore v. Harper: I'm not going to go too far into this; I think in the short term it would help Democrats, but it would broadly create complete chaos. Thankfully, I think the chances that SCOTUS imposes ISL on the country are pretty remote.

Black Voters Matter Capacity Building Institute v. Byrd: I mention this only because Florida's current congressional maps are plainly in violation of the Florida constitution, but the Florida courts aren't going to do anything about it.

[Born to Slay. Forced to Work.]

Everyone is overly bullish on North Carolina. While you can get down to 2 democratic sinks, that leaves a lot of districts that are going to be constant fights. Realistically I think they’ll settle for around 4 democratic seats to the 10 republicans

[Nyvin]

The North Carolina map was specifically made to be used for one term, 2022, and has to be redrawn regardless.

I really, really doubt the NCGOP would go for 12-2 or even 11-3.   The Charlotte, Raleigh, and Durham D vote sinks are mandatory and they probably need to keep NC-1 at least somewhat competitive.   

Greensboro/Winston-Salem will get diced up to hell and the current NC-14 has zero chance at survival in any form. 

In the end it'll be like 10-3-1 or something like that.

[Torie]

The VRA only applies to compact black majority CD's, and SCOTUS is set to weaken it as to what "compact" means, so the VRA does not apply to NC-01 at all.

Below is a copy and paste of what I posted elsewhere prior to the news of the Hochul nominations:

"As to NY, your characterization is fair, but there is one more hurdle for the Dems, and it is a substantial one with the CD map. After the Court of Appeals at some point reverses its decision with a sufficiently pliable 7th judge not yet appointed, and allows the commission to redraw, and then the legislature rejects twice, and can muster a two thirds vote to draw its own map (and the Dems have no votes to spare there in the state senate), then the new map after it dumps 2-4 Pub seats, needs to be found not to unduly favor one party, and since the lines will no longer be defensible on neutral metric grounds ala the special master map, the Court of Appeals would have to nevertheless find that the map does not unduly favor one political party, exposing them as the hack quartet. At the end of the day I don’t see that happening, unless there is some bipartisan deal, where the Pubs throw a couple of the seats to the wolves (bye, bye NY-03), in order to try to save the rest, and reduce the legal and political risk."

The Pubs may lose a seat or two to line changes, which might be the case with no line changes. I don't see much of a Dem pickup here as a projection due to line changes.

The WI CD map is not really gerrymandered at all in a way that would flip seats, and the new progressive state supreme court judge vented her ire at the legislative lines, not the CD lines. I don't see any redraw at all of the CD lines.

[GALeftist]

The VRA only applies to compact black majority CD's, and SCOTUS is set to weaken it as to what "compact" means, so the VRA does not apply to NC-01 at all.

Thank you for weighing in! My reading of the Merrill v. Milligan oral arguments seems to be similar to yours, in that compactness seems to be what they are focusing on (or at least Kavanaugh). However, I did not see any clear signals that they were seeking to weaken compactness. In fact, the reason I brought it up is because I was struck by the fact that, during oral arguments, no one really seemed to be able to come up with a good reason why a second Black district in Alabama wouldn't be compact; I'd be interested to hear your perspective here. Anyway, I think that point is largely moot because I don't think an NC-01 suit would be related to the VRA, I think it would more likely be alleging that substantially editing NC-01 would be racially discriminatory and abridging votes on account of race, in violation of the 14th and 15th Amendments,and NC-01 is pretty much maximally compact anyway.

"As to NY, your characterization is fair, but there is one more hurdle for the Dems, and it is a substantial one with the CD map. After the Court of Appeals at some point reverses its decision with a sufficiently pliable 7th judge not yet appointed, and allows the commission to redraw, and then the legislature rejects twice, and can muster a two thirds vote to draw its own map (and the Dems have no votes to spare there in the state senate), then the new map after it dumps 2-4 Pub seats, needs to be found not to unduly favor one party, and since the lines will no longer be defensible on neutral metric grounds ala the special master map, the Court of Appeals would have to nevertheless find that the map does not unduly favor one political party, exposing them as the hack quartet. At the end of the day I don’t see that happening, unless there is some bipartisan deal, where the Pubs throw a couple of the seats to the wolves (bye, bye NY-03), in order to try to save the rest, and reduce the legal and political risk."

So here is where I disagree with you. If you read the Harkenrider v. Hochul opinion, Judge Rivera wrote that "Petitioners’ claim of a substantive violation based on gerrymandering is also without merit as their evidence fell far short of proving that the legislature’s congressional map was unconstitutional beyond a reasonable doubt," now Chief Judge Wilson wrote that "I am convinced these petitioners have not adduced legally sufficient evidence to demonstrate gerrymandering," and even Judge Troutman wrote that "I dissent as to the majority’s advisory opinion on the substantive issue of whether the plans constitute political gerrymandering ... Its conclusion ...  is not illuminating in the
least because the majority does not engage in the kind of careful district-specific analysis that might provide any practical guidance to an actual mapmaker, nor could it on this record." These three judges were quite explicitly of one opinion on the question of whether plaintiffs had proven unconstitutional gerrymandering beyond a reasonable doubt – quite striking considering the dramatic nature of the legislature's map. I see no reason to believe that any of the three would be more amenable to plaintiffs on the second go round. The real question, in my mind, is whether Halligan signs onto their logic; I tend to think she will.

The WI CD map is not really gerrymandered at all in a way that would flip seats, and the new progressive state supreme court judge vented her ire at the legislative lines, not the CD lines. I don't see any redraw at all of the CD lines.

This is the most confusing point to me. It's true that Protasiewicz focused on the legislative maps on the campaign trail, but perhaps more important is why she objected to them; it wasn't because the lines didn't adhere to whatever neutral redistricting principles, it was because, according to her, the lines "do not reflect the people in the state" and "There’s no legal precedent [for least change]. There’s nothing in the Constitution. There’s nothing in case law." Least change was how the current congressional maps were drawn to begin with, and the bit about "reflecting people in the state" seems like a pretty clear appeal to proportionality to me. For these reasons, I would be very surprised if Protasiewicz breaks with the other three liberals on the congressional lawsuit.

[Torie]

SCOTUS will not be invalidating maps on racial grounds outside its narrowed interpretation of the VRA. That means if one slices and dices black neighborhoods in a way not hewing to neutral redistricting principles, that would make up more than half of a CD, and by doing that, a candidate of their choice is not elected, that is illegal, but no more

In Alabama, the issue is whether a CD that takes in the black areas of Birmingham and then goes over some white real estate to take in black Tuscaloosa in an adjoining county, is deemed "compact." One needs to do that to get to  50% BVAP, triggering the VRA. I got the vibe from oral argument that what is deemed compact is going to be tightened, and such a CD does not qualify as compact. Indeed almost anything that does not hue to neutral redistricting principles would be suspect. Alito has his pen out to write the decision. He can't wait. We shall see.

I tend to doubt the new WI judge will be that activist, to slice and dice Madison and Milwaukee, and create a map not quite as ugly as Illinois, but still butt ugly, to nab the Dems a couple of more CD seats, but we shall see as to that as well. If the Pubs ever get the trifecta back in WI, they can draw a map again, and under what I anticipate will be the SCOTUS precedent  by then, the WI court will be out of business. Vague equality language in a state constitution will not be good enough to toss a map passed by the legislature. That was made crystal clear in oral argument. Even if the NC case is mooted by the NC SC reversing itself, the case would come back the moment a state high court uses vague language to toss an otherwise legally passed map. Team Alito and Roberts are on that one as well.

As to New York, I am not at all sure that the new judge will be a hack (and a hack would be necessary here to toss the map with one that slays a cohort of Pubs via traducing neutral redistricting principles), given her impressive resume and background, but in addition to her having to be a hack, the Dems will not be able to afford to lose the vote of a single state senate Dem, and one of them is quite conservative and transaction oriented Simca Felder with his heavily Pub Orthodox/Hassidic Jewish constituency. That will put the brakes on the Dems going wild in any event.

Due to state high court hyper partisanship now a thing almost everywhere, among other things, redistricting is steadily spinning out of control. It will get worse before it gets better.

[patzer]

SCOTUS will not be invalidating maps on racial grounds outside its narrowed interpretation of the VRA. That means if one slices and dices black neighborhoods in a way not hewing to neutral redistricting principles, that would make up more than half of a CD, and by doing that, a candidate of their choice is not elected, that is illegal, but no more

What if one slices up neighborhoods to pack black voters?

This sort of map would ensure the 1st being 55% black, it's very obviously a gerrymander but would the courts find it objectionable?

[Torie]

SCOTUS will not be invalidating maps on racial grounds outside its narrowed interpretation of the VRA. That means if one slices and dices black neighborhoods in a way not hewing to neutral redistricting principles, that would make up more than half of a CD, and by doing that, a candidate of their choice is not elected, that is illegal, but no more

What if one slices up neighborhoods to pack black voters?

This sort of map would ensure the 1st being 55% black, it's very obviously a gerrymander but would the courts find it objectionable?

Not unless it combined two VRA districts into one (and NC has no VRA districts), or the CD was drawn to pack blacks qua blacks as opposed to Dems qua Dems. The Pubs will never again focus on packing blacks as opposed to Dems. Back when, they did to draw non compact black CD's when they thought they had to get up to 50% BVAP, as opposed to merely black performing, and were hung out to dry.

[GALeftist]

SCOTUS will not be invalidating maps on racial grounds outside its narrowed interpretation of the VRA. That means if one slices and dices black neighborhoods in a way not hewing to neutral redistricting principles, that would make up more than half of a CD, and by doing that, a candidate of their choice is not elected, that is illegal, but no more

What if one slices up neighborhoods to pack black voters?

This sort of map would ensure the 1st being 55% black, it's very obviously a gerrymander but would the courts find it objectionable?

A very similar NC-01 was unanimously struck down by SCOTUS in Cooper v. Harris for having relied too heavily on race to be drawn iirc.

EDIT:

As to New York, I am not at all sure that the new judge will be a hack (and a hack would be necessary here to toss the map with one that slays a cohort of Pubs via traducing neutral redistricting principles), given her impressive resume and background, but in addition to her having to be a hack, the Dems will not be able to afford to lose the vote of a single state senate Dem, and one of them is quite conservative and transaction oriented Simca Felder with his heavily Pub Orthodox/Hassidic Jewish constituency. That will put the brakes on the Dems going wild in any event.

Real quick, something else I should have mentioned is that Simcha Felder voted for the previous gerrymander, so I think we can safely infer he will vote for this one too. His approach to politics is very transactional and Democrats will have something to give him for playing ball. In fact, all but six Democrats in the current supermajority voted for the previous gerrymander, by my count. Rather than Felder, I have my eye on Monica Martinez of Long Island. She was just elected in 2022, is pretty conservative, and voted in favor of LaSalle. If anyone breaks ranks, I bet it will be her.

Point taken about Wisconsin. I think you are underestimating Protasiewicz's partisanship by a lot, but you never know. I think SCOTUS interference with state court interpretations of state constitutions would be a really dangerous and slippery slope, even if I grant that the NCSC was wrong to strike down the initial gerrymander, but Roberts seemed willing to do it in Moore v. Harper oral arguments, so I think you're probably right that they'd rein in the WISC unless something changes in the near future.

[GALeftist]

A couple of updates –

1. As expected, NC Republicans get another bite at the apple. Not sure when they will release new maps, but it'll be either 11-3 or 10-3-1. There are some rumors that Davis might have enough friends in the NCGOP to save his seat, but I'm not holding my breath.

2. It seems all but certain that Roberts will be writing the opinion in Allen v. Milligan, the Alabama redistricting case. This is obviously better than Alito, Thomas, Gorsuch, or probably Barrett writing the opinion, but it's still not an unambiguous signal. On the one hand, Roberts didn't vote to grant a stay in this case; on the other hand, dismantling the VRA has historically been something Roberts is very much on board with. Also of note is that SCOTUS granted cert in the South Carolina redistricting case. This is conjecture on my part and I could be totally off base here, but that *could* imply that the court's opinion in Allen v. Milligan won't unambiguously resolve that case, which could hint at a surprise. Ultimately, I still think the court is more likely than not to uphold Alabama's maps, but the alternative now seems somewhat more plausible.