Democrats gear up to fight gerrymandering after state House losses

Democrats may have won the presidency, but they failed to fulfill one of their biggest hopes of this election cycle: taking control of state legislatures and the power to draw electoral districts.

Now, organizers and party officials said, they will be forced to bank on litigation, friendly state courts, Democratic governors, recent state reforms and a growing grassroots movement to hold the line against their fears of Republican gerrymandering — embedding a political advantage in the drawing of electoral maps.

"Let's have fair maps. Let's have an actual battle of ideas," said Patrick Rodenbush, communications director of the National Democratic Redistricting Committee. "Republicans are afraid of the voters they say they want to represent, and they are cheating the American people out of representation by doing this."

After each census is completed, state legislatures take up the responsibility of drawing the maps for congressional and legislative districts. Republicans took control of the majority of state Houses after the 2010 census, and they were able to maintain much of that dominance this year.

Republicans said they plan to try to cement their power in the drawing of 30 state maps. Democrats control 19 legislatures.

The goal once the new census data come in, said Adam Kincaid, executive director of the National Republican Redistricting Trust, is to redraw maps to "protect our legislative majorities, protect our congressional incumbents and then expand our ability to take over the House in 2022 and beyond."

That Republicans maintained their hold is a major disappointment for Democrats, who invested more than $50 million from the Democratic Legislative Campaign Committee and millions more from a constellation of progressive groups.

The large investments were first sparked by Donald Trump's election in 2016, as a growing number of liberal activists and organizers realized that state governments could act as a check on the president.

After having lost more than 900 legislative seats since the 2010 election, Democrats began to make gains again in 2017 and 2018. Even though the Democrats invested heavily in states like Pennsylvania, Minnesota, Texas and Iowa — among others — Republicans retained power over the chambers they had before.

"We were ambitious, because that's what the moment called for. We had to fight the good fight in advance of redistricting and try to win as much as we could," said Jessica Post, president of the Democratic Legislative Campaign Committee. "Obviously, we had disappointments, but we forced the Republicans to play defense, spend record amounts defending their own maps, and widened our target maps."

The downstream effects could be huge once the census data come next year. Post said she hopes Democrats will further recognize the importance of those races in future.

A number of Republican-controlled states are expected to gain congressional seats — Arizona, Florida and North Carolina would add one seat apiece, while Texas would add two, according to the Population Reference Bureau. Democratic-controlled states, meanwhile, are in a position to lose seats: Minnesota, Illinois, New York, Rhode Island and maybe even California.

Democrats aren't in the best position to challenge Republicans' stated aims. The Supreme Court has made it clear that it is unlikely to take up cases about gerrymandering, unless it's along racial lines, but organizers said they still plan to take Republicans to court over maps they assume will be unfair, and perhaps even the census itself.

Democrats eye litigation over gerrymandering

While the faceoff between Trump and Joe Biden sucked up all of the oxygen of the election cycle, many Republicans and Democrats had their eyes trained on the completion of the census and the control of state legislatures.

Republicans had majority control; Democrats believed they could flip eight legislatures. With the dust now beginning to settle, it appears that not much has changed from the last round of elections besides Republicans' gaining control of New Hampshire's House and Senate.

"You know, if it ain't broke, don't fix it. What we've been doing for the last decade has been working despite the conventional wisdom that our run of success in the states was going to come to an abrupt close," said David Abrams, deputy executive director of the Republican State Leadership Committee.

The country had the fewest partisan change in legislatures since 1944, according to the National Conference of State Legislatures, but the fight over those maps could long outlive the next presidency.

The issue looms particularly large in the South, which Democrats targeted more this year than they had in decades, with record spending in Georgia, North Carolina and Texas. But Democrats' legal complaints there remain limited after the Supreme Court removed the teeth of the Voting Rights Act in 2013, striking down the requirement that the Justice Department double-check the work of Southern legislatures when they draw electoral districts.

While Republicans and Democrats have spent record amounts trying to win in those states, Republicans have kept control of all of the legislatures in the South except for those in Virginia and Maryland. But the interest in those states' potential swings and Republicans' control of their statehouses will likely make them hotbeds for gerrymandering, said Michael Li, senior counsel for the Democracy Program of the Brennan Center for Justice at New York University Law School, who works on redistricting cases.

"Democrats fell short of winning any of the chambers they were targeting there in the last two cycles in states like Georgia, Texas, Florida and North Carolina," Li said, "so there's still a lot of potential for abuse there, because there are fewer protections this time around. I think the South in a lot of ways will be the redistricting hot spot of this cycle."

Li said that possible abuses are likely to be a focus of litigation in the future but that the cases that will start coming next year won't be over just the drawing of the maps.

Republicans and Democrats said they anticipate challenges over the census itself. Democrats have cried foul over how the Trump administration has run the decennial population count, especially the addition of a citizenship question this year, which they say will exclude many immigrants, and over the shortened accounting period during the pandemic.

The challenges around the census are immense. Even if courts found Democrats' arguments compelling, experts, Democrats and Republicans all said, it would be unprecedented to render the data from the census useless and require a fresh count.

"There have been cases where people have tried to get the bureau to make changes, but it's really hard," Li said. "You can't redo the census easily, for instance, so trying to figure out a remedy is going to be a challenge."

'There's no quick fix'

The lawsuits have been a feature of the work around redistricting in recent years, much to the chagrin of Kincaid and other Republicans who have worked to expand on GOP legislative and congressional power. But Republicans dismissed Democrats' efforts to take complaints of redistricting unfairness to the courts.

Kincaid said that Democrats had maintained control of the majority of legislatures for decades and that they called foul only once Republicans focused their efforts to seizing them in 2010 ahead of the release of the new census data.

"In North Carolina alone, we've been through, what, 17 lawsuits over the legislative and congressional maps just this decade? All that money spent on those lawsuits, and it didn't yield them a majority in anything — the Senate, the House or in Congress," Kincaid said. "But Democrats do this and do it over and over again. The way we talk about it is Democrats see a state they want and sue until it's blue."

The frustration may be fruitless, however, as many days are sure to be spent in court over the maps that are intended to represent Americans across the country.

Democrats and Republicans said this election calls for reflection on both sides about the methods they used to appeal to voters. But time is short: Virginia and New Jersey will hold elections for their legislatures next year.

They also have to contend with Georgia's two Senate seats, at least one of which is set for a runoff in January, which could decide the balance of power in the Senate.

"The stakes are so high in the Georgia Senate races for all democracy issues, including redistricting," said Adam Green, a co-founder of the Progressive Change Campaign Committee. "If Democrats have more control nationally, we can reinvigorate voting rights and even balance the courts in a way that will be a check on these naked power grabs."

Apart from the potential Georgia runoffs, organizers for Democrats said they believe it will help that everyday Americans know more about the issue than they did after the 2010 election, but some said they are also thinking about what their strategy will require to push back against Republicans.

Rita Bosworth, the executive director of Sister District, which matches volunteers from Democratic states with races in swing districts, said Democratic organizing around state legislatures is fairly new but growing. In response to the losses this year, she said, groups like hers may invest further in strategies used by Stacey Abrams' group Fair Fight, which focused on civic engagement and voter registration, rather than only helping to push campaigns forward.

"It's part of our job to educate our supporters and our community on the importance of understanding how the entire ecosystem works and interacts and how there's no quick fix," she said. "But all these organizations need to be working together and communicating with each other and turn this into a real movement."