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Florida gerrymandering

The Florida Supreme Court on Thursday declined to hear a challenge to Gov. Ron DeSantis’ gerrymandered congressional map, leaving it in place for this year’s elections.

The map, drawn by DeSantis after vetoing the legislature’s version, is an aggressive gerrymander that reduced likely Democratic seats from 12 to 8 and increased Republican seats from 16 to 20. Crucially, DeSantis completely erased the Black majority 5th District (held by Democratic Rep. Al Lawson), an act that Circuit Court Judge J. Layne Smith said last month unconstitutionally dilutes Black citizens’ voting power.

“This map dilutes the power of minority voters,” [said Ellen Freidin, president of Fair Districts Now]. “It reduces the number of districts in which African Americans could elect a representative of their choice by 50 percent, and reduces voting power of Hispanic citizens despite the dramatic growth of the Hispanic population in Florida over the last 10 years. In addition, the map appears to have been drawn intentionally to favor Republicans.”

Only five of the state court’s judges weighed in on the Governor’s appeal; two recused themselves. In a 4-1 decision, encompassed in just one paragraph, the majority wrote that “this Court does not have jurisdiction over that matter.” Justice Jorge Labarga, appointed by former governor Charlie Crist, dissented:

Given this Court’s history of considering congressional redistricting cases, I cannot forecast that we will lack jurisdiction to review the district court’s merits decision. At stake here is the mandate of 62.9% of Florida voters who voted in 2010 for one of what are commonly known as the Fair Districts Amendments to the Florida Constitution—by any measure of comparison, 62.9% of the vote is an overwhelming margin.

The federal courts will not be hearing arguments in a separate lawsuit against the map before midterms, meaning it is very likely that Florida voters will be forced into DeSantis’ gerrymandered districts in 2022’s elections.

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Ohio gerrymandering

A federal three-judge panel intervened in the Ohio redistricting battle, overruling the state’s Supreme Court and allowing the GOP to use maps favorable to their party for the 2022 elections.

The state redistricting commission, made up of five Republican members and two Democratic members, refused to comply with the Ohio Supreme Court’s order to draw constitutionally-acceptable legislative maps. In fact, the Supreme Court rejected their maps five times for heavily favoring the Republican party.

Republican Justice Maureen O’Connor ruled with the Democratic appointees on the state’s highest court, writing that “the federal court provided the Republican commission members not only a roadmap of how to avoid discharging their duties but also a green light to further delay these proceedings by stating its intention to implement ‘Map 3’ (i.e., the plan this court held to be unconstitutional…)…”

Lamentably, the federal court’s optimism that the commission members “are public servants who still view partisan advantage as subordinate to the rule of the law,” proved to be unfounded. And its hope “that the Commission and the Ohio Supreme Court can set aside their differences and work together to find a solution,” failed to recognize the commission’s utter refusal to comply with this court’s orders as rulings of law and the Republican commission members’ insistence that they can act in derogation of the law and against their oaths to uphold it. The Republican dominance of the General Assembly gave rise to a telling boast by President of the Senate Matt Huffman: “We can kind of do what we want.” Do what we want apparently translates into the Republican-majority members of the redistricting commission ignoring rulings of this state’s highest court and the mandates of Ohio’s Constitution

Days after O’Connor released her opinion, the federal court followed through and allowed the Republican legislature to use maps the state court deemed unconstitutional. The majority, made up of two Trump judges based in Kentucky—6th Circuit Judge Amul Thapar and Kentucky District Judge Benjamin Beaton, wrote that “ it is up to the voters to punish [state actors] if they so choose.” The duo ignore that the Republican party gerrymandered maps to prevent voters from punishing them; the very maps the court enacted allow the state legislature to shore up their districts and prevent the Democratic party from flipping seats.

Judge Algenon Marbley (appointed by Clinton), the only Ohio-based judge on the panel, dissented:

The majority’s order implements that which its April opinion made inevitable: for the next two years, the General Assembly will operate under a district map that is unconstitutionally gerrymandered…The majority’s April opinion assured the Commission that if it simply waited another month, the panel would enable it to circumvent the Ohio Supreme Court and realize a map with the desired partisan favoritism. The Commission took the invitation…

The consequences, as I have explained, are severe: “in so doing, the majority tables a watershed constitutional referendum, abrogates controlling decisions of the state Supreme Court, and unwittingly rewards the Commission’s brinksmanship over the rights of Ohio voters.”

In other words, two Trump judges rewarded the partisan commission for running out the clock at the expense of Ohio voters.

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Removing state courts’ power

The Supreme Court is expected to announce in the coming weeks if it will hear a case out of North Carolina that could prohibit state courts from reining in partisan gerrymandering and unfair voting laws.

Earlier this year, the North Carolina Supreme Court struck down gerrymandered congressional maps drawn by the state’s Republican legislature. “[T]he General Assembly diminished and diluted the voting power of voters affiliated with one party on the basis of party affiliation,” the court found. Republican lawmakers asked the Supreme Court to take up the issue and throw out the court-drawn maps by relying on the “independent state legislature doctrine.”

Proponents of this doctrine argue that Article 1 Section 4 of the Constitution— that “the times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof”—only allows the legislature to affect elections. This means that governors cannot veto election laws and state courts are not allowed to strike down election laws, because neither are the “legislature.”

The majority of the Supreme Court declined to intervene in March. Justices Alito, Thomas, and Gorsuch dissented, writing that they would have granted the Republicans’ request to hear the case.

“This case presents an exceptionally important and recurring question of constitutional law, namely, the extent of a state court’s authority to reject rules adopted by a state legislature for use in conducting federal election,” Alito wrote. “And if the language of the Elections Clause is taken seriously, there must be some limit on the authority of state courts to countermand actions taken by state legislatures when they are prescribing rules for the conduct of federal elections.”

In a separate opinion, Justice Kavanaugh agreed that the U.S. Supreme Court needed to settle the matter once and for all. “The issue is almost certain to keep arising until the Court definitively resolves it,” he wrote.

As Rick Hasan surmised in the Harvard Law Review Forum, “judicial acceptance of the strong reading of the independent state legislature theory would create a potential earthquake in American election law,” allowing Republican-controlled legislatures to subvert elections with carte blanche.