Redistricting litigation in southern states following a recent Supreme Court decision could negatively affect incumbent House Republicans seeking reelection in 2024.
The Supreme Court ruled in June in Allen v. Milligan that Alabama’s current congressional map likely violated Section 2 of the Voting Rights Act, which prohibits gerrymandering of congressional districts along racial lines.
The case has emboldened left-wing groups who are challenging congressional maps in several southern states, which redistricting experts believe will likely be successful and jeopardize Republican prospects of retaining the House majority in 2024.
In Louisiana, the case of Ardoin v. Robinson — initiated by the National Association for the Advancement of Colored People (NAACP) — is pending before the U.S. Court of Appeals for the Fifth Circuit and seeks to redraw the state map to create a new black-majority congressional district. After being granted certiorari, the Supreme Court remanded it to the Fifth Circuit after Milligan was decided for a decision consistent with that opinion, likely leading to a new black-majority district.
“Louisiana has six seats, blacks are about a third of the population, and a demonstration map shows a second black majority seat giving sufficient weight to traditional redistricting criteria,” Shawn Donahue, a professor at the University of Buffalo and expert on redistricting, he said “New black majority seats [are] basically new Democratic seats.”
Currently, the Fifth Circuit has ordered parties to file briefs on the question of Milligan’s effects on the case, which are due in August and September.
In Georgia, the case Common Cause v. Raffensperger makes a challenge under Section 2 of the Voting Rights Act to the state’s congressional maps and has been consolidated with NAACP v. Georgia, another challenging the state legislature’s maps. Donahue and others believe that the outcome is likely to favor the plaintiffs, with Georgia’s maps being redrawn to accommodate another black majority district in the Atlanta area.
“I’m going to be talking to the freshman class at the Georgia General Assembly … one of the things I’m going tell them is that you need to be prepared for redistricting,” said Charles S. Bullock III, a professor of political science at the University of Georgia, adding that “Georgia is in exactly the same position” as Alabama.
“They’ll redraw areas around Metro Atlanta … and maybe in the area around the University of Georgia, such as Clark County, to create a second Democratic district,” Bullock said. He identified Republican Rep. Rich McCormick of Georgia, who is currently in his first term, as likely to be impacted by the process.
“They were able to get a district for [McCormick] by working on the Sixth and Seventh Districts … each of those have become Democratic,” Bullock said, adding that it would “be concentrated on the West side of Atlanta, so it would be very difficult for him to survive.” He predicted that “Republicans will end up with an 8-6 plan,” where the GOP is likely to win eight seats, down from the nine they hold currently in Georgia.
In the case of Alexander v. NAACP the Supreme Court will hear oral arguments on Oct. 11. In that case, South Carolina is appealing a lower court decision striking down the state’s map for the 1st Congressional District, which is currently held by Republican Rep. Nancy Mace.
“[T]his will test whether [John] Roberts and [Brett] Kavanaugh are actually moving left on Section 2,” wrote Donahue, referring to their voting with liberal Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson in the Milligan case, ruling that the Alabama map was unlawful.
“[Democrats] will argue that the moving of the black voters in Charleston was done as a political move, in order to shore up Nancy Mace since the Charleston area has been moving to the left. Like Alabama, South Carolina has about the same black percentage, but it is not quite as easy to draw two black majority seats,” Donahue added.
Redistricting in South Carolina, however, may end up hurting some Democratic members, such as House Minority Whip Jim Clyburn, a top ally of President Joe Biden.
“Part of the reason the sixth district got drawn the way that it did, which made Mace’s district much safer, is that James Clyburn wanted to have a very, very secure district for himself,” Bullock said, noting that he would lose some black support. “One of the interesting things about redistricting is that virtually no incumbent ever feels safe.”
Not every expert who spoke with the DCNF believes that the rulings will adversely affect Republicans. “One thing to keep in mind is that just because the courts decide to hear the case does not necessarily mean the judges will rule the same way the Supreme Court did in Allen,” Jamie Carson, a professor of political science at the University of Georgia, told the DCNF.
Arkansas has one such case, where Christian Missionary Alliance v. Thurston will challenge the state’s congressional map over alleged gerrymandering, arguing that it “cracked Pulaski County’s … large and politically effective Black Community” into two districts instead of one, according to the plaintiffs’ complaint. However, experts do not think it’s likely to result in an adverse ruling for Republicans.
“Arkansas is a harder nut to crack. Its overall population is not very high … only about 15—17% black,” Bullock noted. The Supreme Court moved away from what Bullock called the “max black era” — where Section 2 case law entailed that a black district had to exist wherever possible — in 1997, in the case of Reno v. Bosser Parrish School Board.
“[T]his case is not as good for the plaintiffs,” remarked Donahue. “Pulaski County was split up in redistricting, but even if it were kept whole, the seat would likely continue to lean Republican.”
Back in Alabama, the forum for the Milligan case, the outlook for Republicans has worsened after the state, in response to the decision, enacted new maps on July 21 that did not create a black-majority district. “The legislature seemed to defy the order … they ruled for two [African American] majority seats, and most judges do not particularly like having their orders defied,” Donahue noted.
Donahue said that a special master is likely to be appointed to propose new maps, which benefit Republican Rep. Jerry Carl of Alabama at the expense of other GOP members. “[W]e are looking at one seat that Sewell represents to be Birmingham, Tuscaloosa and the western part of the Black Belt, and a new seat being Mobile, Montgomery and the eastern part of the Black Belt,” he said.
Bullock said that a special master is unlikely to take political patterns into account when redistricting, resulting in a worse map for Republicans. “They probably made a mistake not taking seriously more guidance from the Supreme Court,” Bullock noted.
When it comes to redistricting, “Pigs get fat. Hogs get slaughtered,” he said.
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