State courts will play an outsize role in this redistricting cycle, and their actions will most likely determine which party controls the U.S. House in 2022, redistricting and elections analyst David Wasserman says.
In 11 states—Florida, Illinois, Kansas, Louisiana, Maryland, Minnesota, North Carolina, Ohio, Oregon, Pennsylvania and Wisconsin—the balance of power on state supreme courts could determine where congressional lines are drawn, Wasserman told a redistricting session at NCSL Base Camp 2021.
There are some reasons to be cautious in saying this cycle is going to be a partisan bloodbath. But in a lot of states, courts will have to step in if there’s a compelling reason to prevent one side from steamrolling the other. —Dave Wasserman, The Cook Political Report
“There are some reasons to be cautious in saying this cycle is going to be a partisan bloodbath,” said Wasserman, senior U.S. House editor for The Cook Political Report with Amy Walter. “But in a lot of states, courts will have to step in if there’s a compelling reason to prevent one side from steamrolling the other.”
Both parties will attempt to draw the most advantageous maps that they can because they believe they have nothing to lose, Wasserman said. If the map is in place for even one cycle before the court considers the case, that can mean potential election gains.
But they might pay a price eventually, he said.
“If parties decide to press their advantage to a really aggressive level, the consequence could be the court replaces that map with one much less favorable to the party,” Wasserman said. “There is some element of rolling the dice here.”
Maryland Democrats, who hold a 7-1 congressional advantage, might attempt to draw an 8-0 map—which could then be scrutinized by a court where Republican appointees are in the majority, Wasserman said. In Ohio, new reform states that it takes a high bipartisan threshold to pass new maps, but if bipartisan consensus on maps isn’t reached, the party in power can pass a map with a simple majority.
“If Republicans try to expand their advantage, which is currently 12-4 in Ohio, then how does the Ohio Supreme Court feel about that?” Wasserman said. “There are risks to the parties here.”
The enormous importance of state courts isn’t the only new wrinkle this redistricting cycle. More states than ever—a total of 10—now have independent commissions charged with drawing redistricting maps, and at least four others have advisory commissions, Wasserman said.
“It’s important to remember that not all commissions are created equal,” he said, noting that California’s citizen-driven commission, for example, is a very different model from the commissions in Arizona and New Jersey, where a tiebreaker can decide which party’s map to approve.
There are going to be more concerns and questions about census data this time around, Wasserman predicted, and the compressed timeline because of census delays means less opportunity for public input. On the plus side, he said, the public now has access to the kind of redistricting software, such as District and Dave’s Redistricting app, also known as DRA, once reserved for high-priced consultants and state parties.
“Technology has democratized the redistricting game,” Wasserman said. “This is the first cycle where there are web-based apps that allow members of the public to draw legally compliant maps that they can submit to commissions or legislatures.”
Pressure on state lawmakers from the national party will be more intense than ever this cycle, Wasserman said. In some smaller Republican-controlled states, including Indiana, Kansas, Tennessee, Kentucky and Missouri, legislators will most likely face calls from their party in Washington, D.C., to break up Democratic strongholds in Nashville, Louisville, Kansas City or northwest Indiana.
But that could create a conflict between what national party leaders want and the good relationships many state-level Republicans have with civic leaders who don’t want to see their cities carved up, Wasserman said.
“We do know there will be pressure on state parties and state legislators from on high,” he said. “There are states where at the state level, there is an appetite for a bipartisan deal on a congressional map. But there will be pressure from the national party to impose a map that offers maximum advantage—because this is a tooth-and-nail fight for (control) of the House.”
Republicans have more power than they did in 2000, but Democrats have more power than they did in 2010, and there are more seats at the table in places with split control.
“The bottom line here is we’re likely to see Republicans pick up a handful of seats in redistricting, between three to five seats, and they only need five seats to take back control of the House,” Wasserman said. “But campaigns are still going to matter. And the margins and the court cases in these states are going to have a huge impact on who wins the House in 2022.”
Lisa Ryckman is an NCSL associate communications director.