Maps in four states have been ruled for illegal electoral district fraud. They are used anyway.

WASHINGTON — Since January, judges in Alabama, Georgia, Louisiana and Ohio have found that Republican lawmakers have illegally mapped Congress to those states along racial or partisan lines, or that a trial is too likely to conclude that they did. In years past, judges with similar findings would have ordered new maps, or hired an expert to draw them, to ensure that the next election was fair.

But a shift in election law philosophy in the Supreme Court, along with new aggressiveness among the map-drawn Republicans, upended that paradigm in the November election. This time, the four states are using the rejected maps, and questions about their legality for future elections will be raised in court later.

Election experts say the immediate result is that Republicans will get more seats in the midterm elections at a time when Democrats are already struggling to maintain their majority.

Using the rejected maps in the four states, which make up roughly 10 percent of the seats in the House, would likely give Republicans five to seven seats in the House, said David Wasserman, who tracks congressional redistricting for the Cook Political Report. . did not win.

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

“We are seeing a revolution in the courts’ willingness to allow elections under illegal or unconstitutional rules,” Richard L. Hasen, a professor at UCLA Law School and director of the Project to Protect Democracy, said in an interview. . This creates a situation in which countries get one illegal free election before they have to change their rules. “

Behind much of the change is the Supreme Court’s adoption of an informal legal principle that judges should not order changes in election procedures so close to the actual election. In a 2006 case, Purcell v. Gonzalez, the court refused to block Arizona’s voter identity law from taking effect days before the election because it could “confuse voters and thus create incentive to stay away from the polls.”

The Purcell Principle, as it is called, offers almost no guidelines beyond this. But the Supreme Court has expanded its scope significantly in this decade, mostly through provisions on requests seeking emergency relief such as suspending judgments from lower courts, where judges’ reasoning is often vague or even unexplained.

Conservatives say the Supreme Court’s warning against interfering with election preparations makes sense.

“It creates all kinds of logistical cases,” said Michael A. Carvin, an attorney at Jones Day, who handled redistricting cases for Republican clients in a range of states and helped lead the legal team supporting George W. Bush in the 2000 presidential election dispute. It’s that if the original map is stuck at a later time, going back to it would be a “triple disruption of the system”.

Critics argue, however, that the court effectively argues that a smooth election is more important than a fair one. They noted that longstanding guidance in redistricting cases — from the landmark one-person court ruling, with one vote in 1964 — is that the use of an illegal map in elections should be an “extraordinary case.”

The Purcell Doctrine is not always applied in favor of Republicans. In March, the court cited an impending primary election in its refusal to block a North Carolina Supreme Court order to overturn a Republican congressional map scheme in that state.

But scientists say such decisions are the exception. “It just so happens that unexplained rules in election cases have a markedly tendency to save Republicans and hurt Democrats,” said Stephen I. Vladeck, a law professor at the University of Texas who will address the issue in an upcoming book, The Shadow Docket. “

“It would be one thing if the court were to give us a convincing or even reasonable explanation,” he added. “But the granting of residency these days is often done without any explanation at all.”

The prime example came in January in Alabama, where a three-judge federal panel said the state legislature likely violated the Voting Rights Act by weakening the power of black voters in its new map of the seven seats in the state House.

The judges ordered the legislature to draw a new map exactly four months before the primaries in May — a period of time that another Supreme Court considered generous not long ago.

But the Supreme Court issued an emergency stay to block the order two weeks later, restoring the rejected map for this election. Justice Brett Kavanaugh described Purcell’s Doctrine as “a fundamental tenet of election law: When elections are at hand, the rules of the road must be clear and stable.”

In dissent, Judge Elena Kagan responded: “Alabama has no right to continue to violate the voting rights of blacks just because the court order came in the first month of an election year.”

A month later, a federal judge in Georgia cited Mr. Kavanaugh’s words in his decision not to order a new congressional map for that state — this time three months before the primary — even though he said a state legislature map, like the map of Alabama, may have violated the Voting Rights Act.

And in June, the Supreme Court blocked a lower court order on a new map of the Louisiana Congress on the same grounds. The judges did not explain their reasons.

Allowing elections using maps rejected by lower courts has been extremely rare in the past half century. The major cases occurred after the one-person ruling of the Supreme Court with one vote in 1964 forced a reworking of political maps across the country.

Politicians have noticed the change. In Georgia, Republican Governor Brian B.

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

Slow redistricting cases are not limited to federal courts. In Ohio, this year’s congressional and legislative elections are being held under maps the state Supreme Court has ruled are partisan constitutional districting violations.

The Republican-led Ohio Repartition Committee, which drew the rejected maps, has been threatened with scorn for slow production of state legislative district maps. He waited nearly seven weeks this spring to produce a second map for Congress after the first map was rejected by the state Supreme Court.

Later, a three-judge federal panel imposed the state’s legislative maps for the redistricting commission this spring, citing looming election deadlines. The state Supreme Court again dismissed the second map of Congress as a partisan map — but in July, after a long trial, and after months of using the map in the state primaries in May.

“What happened in Ohio is a particularly egregious violation of the rule of law, purely in partisan interest and contrary to what state voters wanted with redistricting reform,” said Ned Foley, a law professor at Ohio State University and a prominent expert on election law. “It is an outright challenge to democracy, and a warning sign to the rest of the nation about how monstrous and dangerous this kind of power grab is.”

Critics say they agree that practical issues matter when elections are imminent. Nicholas Stephanopoulos, a professor of electoral law at Harvard University, said the Supreme Court “places no weight on the democratic damages caused by illegal district mapping, while overestimating the administrative inconvenience of redistricting.”

However, there is another possible explanation for allowing the use of the rejected maps in November. Some election law experts speculate that the court intends to reverse lower courts’ decisions to strike Alabama and Louisiana maps after it heard a crucial election case in October.

The Voting Rights Act provision invoked in those cases, known as Section Two, is mostly used to pursue racial bias in political maps. the master. Carven Jones Day’s attorney said he fully expects the court to target the matter in that term.

“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 need to automatically maximize the number of minority-majority counties is no longer the law.”

The court’s critics say it’s largely a matter of the law, arguing that federal judges in Alabama, Georgia and Louisiana said so this year. Professor Stephanopoulos said this is why the maps deemed to be in violation should be replaced.

But he also said he believed that Mr. Perhaps Carvin’s prediction was correct.


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