Cards from four states have been declared illegal Gerrymanders. They are used anyway.

WASHINGTON — Since January, judges in Alabama, Georgia, Louisiana and Ohio have found that Republican lawmakers illegally drew congressional maps of those states on racial or partisan grounds, or a lawsuit would conclude. most likely they did. In years past, judges who reached similar conclusions have commissioned new maps, or had them drawn by an expert, to ensure that upcoming elections were fair.

But a change in election law philosophy at the Supreme Court, combined with a new aggressiveness among Republicans who drew the maps, upended that pattern for the November election. This time, all four states are using the rejected cards, and questions about their legality for future elections will be argued in court later.

The immediate result, election experts say, is that Republicans will almost certainly win more seats in the midterm elections at a time when Democrats are already struggling to maintain their mere majority.

David Wasserman, who follows congressional redistricting for the Cook Political Report, said the use of rejected cards in the four states, which account for nearly 10% of House seats, was likely to give Republicans five to seven seats in the House that they would otherwise have. not have won.

Some election law scholars are troubled by the long-term consequences.

“We are witnessing a revolution in the willingness of the courts to allow elections to proceed under illegal or unconstitutional rules,” said Richard L. Hasen, a UCLA law school professor and director of his Safeguarding Democracy Project, said in an interview. “And that creates a situation where states get a free and illegal election before they have to change their rules.”

Behind much of the change is the Supreme Court’s adoption of an informal legal doctrine that judges should not order changes to election procedures too close to an actual election. In a 2006 case, Purcell c. GonzálezThe court has refused to prevent an Arizona voter ID law from taking effect days before an election because it could “confuse voters and cause them to stay away.” away from the ballot box”.

Purcell’s principle, as it is called, offers almost no guidance beyond this. But the Supreme Court has broadened its reach considerably over the past decade, primarily by ruling on emergency relief claims such as stays of lower court decisions, in which judges’ reasoning is often cryptic, even unexplained.

Conservatives say the Supreme Court’s reluctance to interfere with election preparations is common sense.

“It creates all kinds of logistical problems. Candidates don’t know where they’re running,” said Michael A. Carvin, a Jones Day attorney who has handled redistricting cases for Republican clients in a host of states and helped lead the legal team. supporting George W. Bush in contesting the 2000 presidential election. If the original map were to stand later, he said, going back to it would be “triple disruptive to the system”.

Critics argue, however, that the court is effectively saying a well-run election is more important than one. And they note that longstanding advice in redistricting cases – from the court’s history one person, one vote in power in 1964 – is that the use of an illegal card in an election should be “the unusual case”.

The Purcell Doctrine is not always applied to the benefit of Republicans. In March, the court cited the approach of a primary election in refuse to block an order from the North Carolina Supreme Court striking down a Republican gerrymander from that state’s Congressional card.

But researchers say such decisions are the exception. “It turns out that unexplained rules in election business have a remarkable tendency to save Republicans and hurt Democrats,” said University of Texas law professor Steven I. Vladeck, who addresses the issue in a forthcoming book, “The Shadow Docket”. ”

“It would be one thing if the court gave us a convincing or even plausible explanation,” he added. “But the granting of a reprieve these days is often done without any explanation.”

The headline example came in January in Alabama, where a three-judge federal panel said the state legislature had probably violated the Voting Rights Act by diluting the power of black voters in his new map of the state’s seven-seat House.

The justices ordered the Legislative Assembly to draw a new map exactly four months before the primary election in May – a period of time that not too long ago another Supreme Court would have considered generous.

But the Supreme Court issued an emergency stay order blocking two weeks later, returning the rejected card for this election. Judge Brett Kavanaugh called Purcell’s principle “a fundamental tenet of election law: when an election is near, the rules of the road must be clear and established.”

Dissenting, Judge Elena Kagan fired back, “Alabama has no right to continue violating the right to vote of black Alabams simply because the court order was issued within the first month. of an election year.

A month later, a federal judge in Georgia quoted Mr. Kavanaugh’s words in decide not to order a new Congress card for that state — this time three months before the primary election — even though he said the state legislature map, like Alabama’s, likely violated voting rights law.

And in June, the Supreme Court blocked an order from a lower court for a new map of Congress in Louisiana on the same ground. The judges did not explain their reasoning.

Allowing elections using cards rejected by lower courts has been exceedingly rare over the past half-century. The main cases came after the Supreme Court’s one person, one vote ruling in 1964 forced the redesign of political maps nationwide.

Politicians took note of the change. In Georgia, Republican Gov. Brian P. Kemp waited 40 days after the legislature approved a congressional map before signing it into law, leaving some time for the next court battle.

“Those involved are well aware of both Purcell and his inconsistent application by the court,” Professor Vladeck said. “So there’s a lot of upside and very little downside to trying to manipulate circumstances as much as possible.”

The slow-running redistricting problems are not limited to federal courts. In Ohio, this year’s congressional and legislative elections are being held on maps that the state Supreme Court ruled unconstitutional partisan gerrymanders.

The GOP-led Ohio Redistricting Commission, which drew the rejected maps, was threatened with contempt for dragging its feet in producing maps of the state’s Legislative districts. He waited nearly seven weeks this spring to produce a second Congressional card after the state Supreme Court rejected the first.

A three-judge federal panel then imposed the Redistricting Commission’s state legislative maps this spring, citing looming election deadlines. The state Supreme Court again dismissed Congress’s second card as a partisan gerrymander – but in July, after a lengthy trial, and months after the card was used in the state’s primary election in May .

“What happened in Ohio is a particularly blatant disregard for the rule of law, purely for partisan advantage and contrary to what voters in the state wanted with redistricting reform,” Ned said. Foley, a law professor at Ohio State University and a leading election law expert. “This is an outright challenge to democracy and a wake-up call to the rest of the nation about how wicked and dangerous this type of power grab is.”

Critics say they agree that practical matters are important when elections are imminent. But the Supreme Court “gives next to no weight to the democratic damage caused by illegal precinct maps, while exaggerating the administrative inconvenience of redrawing precincts,” said Nicholas Stephanopoulos, an election law scholar at the University. from Harvard.

There is, however, another potential explanation for allowing use of the cards rejected in November. Some election law experts believe the court intends to overturn lower court rulings overturning the Alabama and Louisiana cards after hearing a crucial election case in October.

The Voting Rights Act clause relied on in these cases, known as Section Two, is primarily used to prosecute racial bias in political maps. Mr Carvin, Jones Day’s attorney, said he expected the court to seek him out for that warrant.

“The reality on the ground has changed dramatically” since the law was passed, he said, citing the election of politicians like former President Barack Obama with broad support among white voters. “The Pavlovian requirement that states with a history of racial discrimination must automatically maximize the number of majority-minority districts is no longer the law.”

Court critics say it’s absolutely the law, seeing as federal judges in Alabama, Georgia and Louisiana said so this year. And that’s why cards found to be in violation should have been replaced, Professor Stephanopoulos said.

But he also said he thought Mr Carvin’s prediction was probably correct.

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