If Republicans win control of the House by just a handful of seats or less, they will owe their slim majority to the Republican-appointed justices on the Supreme Court.
In a series of election law cases, including one yet to be decided, the court’s conservative justices authorized partisan gerrymandering and effectively gutted the Voting Rights Act’s protections against racially discriminatory redistricting. These decisions led directly to an increase in congressional districts gerrymandered to favor Republicans and decreased the number of Black-majority seats that would have favored Democrats following the 2020 census.
In effect, the conservative justices put a thumb on the scale in favor of the political party that appointed and confirmed them.
“If we end up with a very narrow Republican majority in the House, I think it can very fairly be said that the Republican justices on the court like Alito and Thomas are much more the fathers of this majority than Kevin McCarthy or anybody else,” said Brian Fallon, executive director of Demand Justice, a liberal judicial activist group.
The big decisions by the court’s conservatives include Chief Justice John Roberts’ 2019 decision in Rucho v. Common Cause, which declared that federal courts had no role to play in judging claims of partisan gerrymandering. This gave state legislatures, where Republicans control the ability to draw maps in far more states than Democrats, the green light to carve up their congressional maps in the most partisan ways possible.
In addition, the court’s “shadow docket” decision suspending lower court rulings that would have mandated Republicans in Alabama and Louisiana draw new Black majority districts directly cost Democrats two seats.
“It’s not hard to count the seats and get to a Democratic majority under different circumstances,” said Michael Li, a redistricting law expert with the Brennan Center for Justice, a nonprofit that advocates for redistricting reform.
The racial gerrymandering cases out of Alabama and Louisiana are the clearest cases of the court’s influence in the 2022 outcome. In both cases, district and appeals courts ruled that the governments of both states imposed racially discriminatory maps by failing to draw a second Black majority seat.
The case out of Alabama was a “straightforward” violation of section 2 of the Voting Rights Act, backed by “an extremely robust body of evidence,” the district court judge ruled.
But the Supreme Court intervened to block both decisions in Alabama and Louisiana, allowing the state’s elections to go forward with the current maps deemed by lower courts to be racially discriminatory. Five of the court’s conservatives declared that they would suspend those rulings while they hear Alabama’s appeal in the case of Merrill v. Milligan to decide whether to officially gut the Voting Rights Act’s protections against racially discriminatory redistricting.
Surprisingly, this bridge was too far for Roberts, a longtime opponent of the Voting Rights Act and author of the 2013 decision in Shelby County v. Holder that gutted the law’s pre-clearance section. Roberts indicated that he would require Alabama and Louisiana to abide by the lower court rulings and each draw a new Black majority seat while the court heard arguments on the case.
Since Black voters vote heavily for the Democratic Party, these decisions directly cost Democrats two House seats. Additionally, court cases in Georgia and South Carolina alleged similar racially discriminatory redistricting that cost those states one Black majority seat each. In total, the Supreme Court handed two to four House seats to Republicans. That about makes up the likely majority Republicans could hold.
“By letting those maps stand, that means those states and the people in those states were not able to elect the candidates that they would have otherwise chosen because of these unfair maps,” said Suzanne Almeida, redistricting and representation counsel for Common Cause, a nonpartisan nonprofit.
The approval of racially discriminatory maps by the court’s conservatives may be the clearest example of their influence in tilting the playing field for Republicans. But the 5-4 Rucho decision also played a role by authorizing partisan gerrymandering where Republicans held an asymmetric advantage.
The conservative Rucho decision favored Republicans for two reasons. First, Republicans drew 187 House districts, far more than the 75 seats Democrats could draw. (Independent commissions or other bodies drew the rest.)
“Florida is the clearest example,” Li said. “If you compare it to a fair map, you would expect four more Biden districts than there actually are, and that’s really quite striking.”
Republicans in Tennessee carved up the city of Nashville to eliminate the state’s second Democratic-leaning district. In Utah, Republicans gutted a ballot initiative enacted by voters to require an independent redistricting process and drew a four-seat GOP gerrymander.
Texas Republicans shored up their existing GOP-leaning districts to turn them into fortresses while eliminating one Democratic seat and handing themselves the two new seats the state gained through population growth. This despite racial minorities in the state’s largest cities accounted for 95% of the state’s population growth. A fairly drawn map would have included three to four additional seats won by Biden in 2020, according to Li.
Similarly, in Georgia, Republicans gerrymandered the state by eliminating one Democratic seat, giving themselves the new seat and shoring up their own white majority seats despite population growth coming almost entirely from Black, Asian and Hispanic communities. This gerrymander cost Democrats at least two seats.
This more than offset the Democratic gerrymanders enacted in states like Illinois and Nevada.
Second, with federal courts taken out of the equation by Rucho, state courts in Republican-run states, often stacked with partisan elected judges, were more amenable to approving partisan and racial gerrymanders than state courts in Democratic-controlled states.
This was true in Florida and Texas, where Republican-appointed judges upheld harsh partisan gerrymanders that also reduced representation for racial minorities. In Ohio, Republicans simply ignored repeated decisions by the state supreme court, striking down their partisan gerrymander and putting it in place.
Meanwhile, state courts overrode Democratic gerrymanders in Maryland and New York, forcing the states to adopt maps with more partisan balance.
Democrats saw some of their biggest losses in New York, with four competitive seats going to Republicans. The court’s rejection of the Democratic-run state legislature’s gerrymander played a partial role in these losses. At the very least, it cost former Congressman Max Rose a win in New York’s 1st Congressional District, according to The City. But in some other cases, Democratic candidates so underperformed their district’s Democratic tilt that they may have lost on the gerrymandered maps as well.
“Democrats didn’t lose a bunch of Biden +10 or Biden +15 districts in the rest of the country,” Li said, noting that other factors were at play in New York.
Democrats did get favorable rulings in North Carolina and Pennsylvania that led to the enactment of fairer maps than the Republican-run legislatures in those states wanted. But, on the whole, the court’s Rucho decision provided a far more favorable playing field for Republicans.
These voting rights and redistricting decisions weren’t the only ones that helped Republicans. With their candidates lagging in fundraising behind Democrats, Republicans relied heavily on the unlimited outside spending authorized by the court’s conservatives in the 2010 Citizens United decision. Republicans had a nearly $130 million advantage in outside spending as of late October.
“Under the Roberts Court, you have seen a very disciplined and very consistent siding by the Republican-appointed justices on the side of Republican political interests whenever it comes to philosophical or very case-specific matters when it comes to who wins elections in this country,” Fallon said.
Democrats attempted to fight back against the court’s decisions favoring Republicans politically by enacting legislation that would have strengthened voting rights, limited partisan gerrymandering and required disclosure of dark money in elections. That bill, however, failed when two Democratic senators chose not to change the chamber’s filibuster rules to pass it with a simple majority.
“The big what if here is if courts had done its job or if congress had done its job, what would the results look like?” Li said. “And the answer is starting to be really clear. It would have made a decisive difference.”