How the next House majority could be decided in the courts in 2023

Republicans are readying to plow ahead with ambitious gerrymandering despite previous reprimands from state courts — now that they’ve elected judges who are less likely to thwart their plans.

The first test of this strategy comes Tuesday when North Carolina’s GOP-dominated state Supreme Court will hear arguments on whether its previous Democratic majority erred in tossing out the initial map Republican legislators drew just two years ago. The move has drawn loud complaints from Democrats that the court only granted a redo now that the partisan balance has changed.

Between that and a similar remap looming in Ohio — where the state Supreme Court has also taken a lurch to the right since throwing out multiple GOP maps before the last election — Republicans could more than double their five-seat House majority through redistricting alone. That would give Speaker Kevin McCarthy a much-needed cushion in 2024.

Party operatives believe a favorable ruling in North Carolina could clear the way for a new configuration that nets Republicans four more additional seats. In Ohio, it could help the GOP win between one and three more districts. And nationwide, a dozen other states have active litigation that could shift their balance of power too.

“The cumulative effect of all these fights is significant, and I think could be the determining factor for control of the House following the 2024 elections,” said Marina Jenkins, who was recently named the executive director of the National Democratic Redistricting Committee, the party's mapmaking power center.

The case in North Carolina is an especially unusual one. The state’s Supreme Court invalidated a map drawn by the GOP-controlled state legislature after the 2020 census that would have given Republicans control of as many as 11 of the 14 districts. Instead, the court set into place for the midterms a new map that resulted in the election of an equal number of Democrats and Republicans.

But the justices themselves were also on the ballot.

Republican candidates won both of the state Supreme Court seats up in the midterms, flipping the balance of the court from a 4-3 liberal majority to a 5-2 conservative one. In a rare move, the new conservative majority agreed to rehear the already decided case.

A new ruling in North Carolina could give Republican lawmakers a much freer hand in the state, granting them an opportunity to draw maps similar to their initial proposal. State House Speaker Tim Moore, a Republican, said in February he didn't expect lawmakers to redraw the lines until summer.

The North Carolina delegation could be scrambled dramatically

A best-case scenario for North Carolina Republicans could shift the delegation from an even split to 11 Republicans and 3 Democrats, though mapmakers may not be that aggressive. Perhaps most at risk is Democratic Rep. Kathy Manning, whose Greensboro-based district was eviscerated in the initial map that GOP legislators crafted. Former GOP Rep. Mark Walker, who represented the seat before it was redrawn to favor Democrats, is rumored to be eyeing a comeback bid, although he has publicly acknowledged he is also considering a gubernatorial run.

Manning said she's trying to stay hopeful that the new state Supreme Court doesn't reverse its prior ruling but she knows it could doom her nonetheless.

"Maybe it's unrealistic to expect that they're going to put partisanship aside and do what's right for the state," she said.

Also on the chopping block: Democratic freshmen Reps. Wiley Nickel, who holds a newly created seat in the south Raleigh suburbs, and Jeff Jackson, who nabbed a safe blue seat in the Charlotte area. Jackson's seat is likely to shift west in a redrawn map toward Cleveland County. That’s the home base of the state's speaker, who has long eyed a perch in Congress and would have great influence over any new map.

A redraw could also endanger another freshman, Rep. Don Davis, a moderate Air Force veteran who took over retiring Rep. G.K. Butterfield's rural northeastern district in 2022.

"Republican judges are gonna call balls and strikes," said Rep. Richard Hudson (R-N.C.), the chairman of the National Republican Congressional Committee.

"I think the current map is a partisan gerrymander and that we need fair and legal maps," he added. "And if you have fair and legal maps, I think you’ll have more Republican representatives."

President Joe Biden lost North Carolina to former President Donald Trump by less than 2 points.

Ohio, similarly, saw a back-and-forth battle over its congressional lines. The state Supreme Court twice struck down maps that favored Republicans, though the second ruling came too late to get a new map in place for the midterms.

For now, any future legal challenges would ultimately land in front of a newly made up Ohio state Supreme Court.

Then-state Supreme Court Chief Justice Maureen O'Connor, a Republican, sided with three Democratic justices to strike down the congressional maps. (The court also ruled five times that legislative maps violated the state constitution.) But O’Connor did not run for reelection. And while the partisan balance of the court did not shift, the new conservative majority is not expected to rule the same way.

“The liberal majorities on the Ohio and North Carolina supreme courts overreached,” said Adam Kincaid, the leader of the National Republican Redistricting Trust, “and the voters responded by electing new conservative majorities.”

In Ohio, three Democrats could feel a squeeze under new lines. Democratic Rep. Marcy Kaptur's Toledo-based district already favors Republicans, but could become even redder under a new map. In 2022 she faced flawed opponent, JR Majewski, who misrepresented his military service, leaving Republicans eager to block him this time around. (State Rep. Derek Merrin, who narrowly lost a bid to be speaker of the Ohio House, lives in her district.) In Akron, freshman Rep. Emilia Sykes, a Democrat, is also a clear redistricting target.

A big question is how aggressively Republicans decide to target the Cincinnati-based first district, which elected a Democrat in 2022 for the first time since 2008. Redistricting reform laws in the state prohibit mapmakers from splitting the city between two districts.

The U.S. Supreme Court is watching

Looming over both states is the U.S. Supreme Court.

The high court has already heard arguments surrounding North Carolina’s congressional maps in a case called Moore v. Harper in December, before the state Supreme Court court granted a rehearing.

In that court case, Republican lawmakers challenged the ability of the state court to question their maps, advancing a once-fringe legal theory known as the “Independent State Legislature” doctrine. That theory argues that state courts have little — to no — ability to police legislatures on laws passed around federal elections, including redistricting, under the U.S. Constitution. And while the justices seemed chilly to North Carolina’s arguments in December, at least four of the court’s conservative justices had signaled a friendliness to the theory in the past.

But Tuesday’s rehearing of the case in state court raises the question of what the nation’s highest court will do. Earlier this month, the U.S. Supreme Court directed parties in the federal case to submit briefs on how the rehearing and “any subsequent state court proceedings” would affect the court’s jurisdiction — suggesting that the justices could consider dismissing the case as improvidently granted.

Rick Hasen, a well-known election law professor at UCLA Law, said he was “uncertain” if the high court would do that, given that the underlying issue of the independent state legislature theory is something “I think almost everybody recognizes the court has to resolve before the 2024 elections.”

But should the high court actually do so, another case is waiting in the wings — from Ohio. Lawmakers from that state have asked the U.S. Supreme Court to toss their own state Supreme Court’s rulings out as well, while also advocating for the Independent State Legislature theory. The U.S. Supreme Court has not yet acted on that petition.

If the court does punt on the North Carolina case, it could continue the sense of unevenness in redistricting, Hasen notes, with some state courts wading in on gerrymandering while others don’t. Some Democratic-drawn maps were struck down by their state courts last cycle as illegal partisan gerrymanders.

“If the case gets digged, then that would — for the short term — allow North Carolina to engage in a partisan gerrymander, but would not free New York or Maryland,” said Hasen.