Running Out the Clock: The New Republican Gerrymandering Tactic
Republicans have a few tactics they use to defend illegal maps — from declaring a state’s political geography requires an unfair map to insisting a map is valid because they didn’t use race or partisan data to draw it. But in Georgia and Ohio, Republicans are employing a new procedural strategy — creating delays in the legal process until it’s too late to overturn illegal maps before an election. This strategy of running out the clock has already found success — thanks in part to a helping hand from the U.S. Supreme Court.
Georgia Republicans delayed legal challenges to their gerrymanders and used this delay to argue the maps should be used in 2022.
The Georgia General Assembly completed its part of redistricting back in November when it passed new maps for the Peach State’s congressional and legislative districts. All that was left was for Gov. Brian Kemp (R) to sign the maps into law for them to go into effect. But Kemp waited. And he waited. He finally signed the redistricting plans on Dec. 30, a full 38 days later (and almost the last possible day he could).
Why did Kemp wait so long? It was because he wanted to stall legal action against the maps for as long as possible. While multiple groups announced their intention to sue to block the new maps shortly after the General Assembly approved the plans, the lawsuits couldn’t actually be filed until after Kemp signed them — hence the deluge of filings once he did. This delay meant there were only a few months to hold legal proceedings before candidate filing begins on March 7.
In the cases against the maps, the defendants specifically pointed to this short amount of time as a reason not to block their use for the 2022 election, even if they do violate the Voting Rights Act (VRA). In a brief opposing the plaintiffs’ motion for a preliminary injunction asking the court to block the maps, the defendants argued it is “too late to afford any relief for the 2022 elections” because “voters are not well served by a ‘chaotic, last-minute reordering…of districts.’” Basically, even if the maps violate federal law, there’s simply not enough time to remedy them before the election.
By waiting so long to sign, Kemp ensured there was less time to litigate the maps and gave the courts a reason to leave them in place for 2022, even if they prove to be illegal. In this quest to let illegal maps stand by running out the clock, he got an assist from the Supreme Court.
The U.S. Supreme Court’s decision in Alabama redistricting gave ammunition to this strategy.
In January, a three-judge panel ruled that Alabama’s new congressional map likely violates the VRA and blocked the map’s use in the 2022 election. But the Supreme Court soon stepped in, pausing the panel’s decision and allowing the map to go into effect for 2022. While the Court didn’t issue an opinion explaining why, Justice Brett Kavanaugh did write a concurrence to the decision. He argued that the Purcell principle, which holds that courts shouldn’t change election laws too close to an election, “requires that we stay the District Court’s injunction with respect to the 2022 elections” — even though Alabama’s primary isn’t until May.
While Kavanaugh’s concurrence doesn’t have the force of law, the defendants in the Georgia cases pointed to it and the Court’s decision to let Alabama’s map stand in their proposed findings of fact and conclusions of law as reasons to let the challenged maps be used in the 2022 elections. Accordingly, on March 1 the judge in the Georgia cases allowed the maps to be used this year. Even though he found that the plaintiffs “are likely to ultimately prove that certain aspects of the State’s redistricting plans are unlawful,” it would be “unwise, irresponsible, and against common sense” to ignore the Supreme Court’s decision in the similar Alabama cases.
Kemp’s gambit worked — possibly illegal maps will be used in Georgia this year solely because the election is approaching. And he got a big helping hand from the Supreme Court when five justices decided to let the Alabama map be used this year.
Ohio Republicans are also trying to get away with illegal maps by delaying.
A similar delaying tactic is playing out in Ohio right now, this time in state rather than federal court. Both Ohio’s congressional and legislative redistricting plans were overturned by the Supreme Court of Ohio for unduly favoring Republicans. Rather than complying with court orders mandating redraws, Ohio Republicans are trying to drag things out until there’s no time left before the state’s primary election — an election they also refuse to take meaningful steps to delay despite the pleas of elections officials.
The Ohio Redistricting Commission passed a new set of legislative maps that were also overturned for violating the state constitution. The Commission waited until the last minute to draw a third set of plans, before failing to approve any maps at all and declaring itself at “an impasse.” Shortly after, Republicans filed a lawsuit asking a federal court to impose the second set of maps despite their illegality. Only after the state Supreme Court threatened to hold the Commission in contempt did it approve a third set of maps — a set that the plaintiffs again argue fails to comply with the Ohio Constitution.
As the plaintiffs note, rather than wait for the state Supreme Court to review this third set of plans, Republican officials in Ohio are “proceeding full steam ahead to implement their latest General Assembly plan.” The Ohio secretary of state has already directed election officials to print ballots reflecting the new districts ahead of the May 3rd primary. The Democratic Commissioners argue Republicans “appear to be weaponizing the primary deadline…using an exigency of their own making to impose an unconstitutional plan.” Likewise, after the congressional plan was overturned, the Ohio General Assembly didn’t even bother drafting a map before the court’s deadline. The Commission took over and passed a new congressional map that is barely unchanged from the one previously struck down, with Republicans arguing the election creates an emergency situation that allows them to ignore anti-gerrymandering provisions. As in Georgia and Alabama, Republicans are using a looming election as an excuse to allow an illegal and unconstitutional plan to go into effect. Adding to the chaos, the plaintiffs who successfully overturned the first congressional map submitted objections to the new one, asking the court to move election deadlines if necessary. With the March 4 filing deadline passed, it’s anyone’s guess what’s going to happen in Ohio now.
Don’t be surprised to see other states follow Georgia and Ohio’s leads.
Given Georgia’s success and the support the conservative U.S. Supreme Court majority gave to this strategy, we can expect Republicans in other states to try something similar if their maps are challenged. Already, litigation is underway against a Republican gerrymander in Kansas and the threat of lawsuits looms over Louisiana’s recently passed maps. Republicans in both states, rather than defend their maps on the merits, may simply choose to run out the clock until there’s no time left. And if the litigation ends up in federal court, there’s little to suggest the Supreme Court will stop them.