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The federal judiciary has grown ever more hostile to voting rights during the Trump era, and the U.S. Supreme Court has refused to curtail partisan maps designed to entrench one-party rule. But at the same time, state courts have started striking down these gerrymanders—and crucially, these decisions rely on protections found in state constitutions, meaning that they’re insulated from John Roberts’ review.
Almost every state constitution, in fact, offers similar protections. The issue is who’s interpreting them. But unlike federal judges, many state Supreme Court justices are elected to their posts, so progressives have the opportunity to replace conservative ideologues with independent-minded jurists.
That’s critical in Michigan, North Carolina, Ohio, and Texas—states that the GOP has gerrymandered at every level. If we can roll back the right-wing stranglehold on the state courts, we can make great strides toward fairer maps for the coming decade. Below, we’ll take stock of the high courts in each of these four states and explain how progressives can win back judicial power in each of them.
Michigan
- Bottom line: Democrats can flip the Michigan Supreme Court from Republicans
- Composition: 4 Republicans, 3 Democrats
- 2020 elections: 2 seats up (nonpartisan with partisan primaries)
- Democratic Chief Justice Bridget Mary McCormack, first elected in 2012
- OPEN (Republican Justice Stephen Markman, first appointed by ex-Gov. John Engler (R) in 1999, faces mandatory retirement)
Democrats have an excellent chance to take control of the supreme court in the battleground state of Michigan thanks to an open Republican seat, though they’ll also have to defend a seat held by a Democrat, Chief Justice Bridget Mary McCormack.
Michigan voters approved a new independent redistricting commission at the ballot box in 2018, meaning Republicans don’t have free rein to gerrymander once again as they did a decade ago. However, the courts could still play a big role. For starters, the members of the commission could deadlock, which would require judges to step in and drew new maps. And anyone who has a grievance against the new lines could wind up suing in state court.
The commission itself is also vulnerable, because the U.S. Supreme Court could always overturn its 2015 decision that upheld a similar commission in Arizona. That ruling featured a narrow 5-4 majority, with former Justice Anthony Kennedy casting the deciding vote. Now that Kennedy has been replaced by Brett Kavanaugh, the court could very well reach a different conclusion in a future case and strike down Michigan’s commission—as well as Arizona’s, of course, and a similar panel in California.
Should that happen, Michigan will need its own supreme court to serve as a backstop and ensure the state’s next set of maps are fairly drawn.
North Carolina
- Bottom line: Republicans can flip the North Carolina Supreme Court from Democrats
- Composition: 6 Democrats, 1 Republican
- 2020 elections: 3 seats up (partisan)
- Democratic Chief Justice Cheri Beasley, first elected in 2014 and appointed chief justice in 2019 by Gov. Roy Cooper (D), faces Republican Associate Justice Paul Newby, first elected in 2004
- Democratic Justice Mark Davis, appointed in 2019 by Gov. Roy Cooper (D), faces former Republican state Sen. Tamara Barringer
- OPEN (Republican Paul Newby, first elected in 2004, is running for chief justice against Beasley); Republican Court of Appeals Judge Phil Berger Jr. faces fellow Democratic Court of Appeals Judge Lucy Inman
North Carolina is another evenly divided swing state where Republicans have gone to great extremes trying to undermine democracy. Democrats currently hold a 6-1 majority on the Supreme Court, but it’s only guaranteed until 2022 unless they sweep all three races on the ballot this November. If they can, that would extend their majority until at least 2026.
In a worst-case scenario, however, Republicans could whittle the Democrats’ advantage down to just 4-3 this year. And such a scenario could grow worse still, because it means Republicans may have also unseated Democratic Gov. Roy Cooper (who is up for election this fall) and held the legislature. In that case, they’ll be able to take advantage of existing law to pack the court with two additional members.
That would give the GOP an immediate 5-4 majority on the Supreme Court, which in turn would happily sign off on any new Republican gerrymanders. But if Democrats can preserve or expand their majority on the bench, the court will stand ready to scrutinize maps for the coming decade.
Ohio
- Bottom line: Democrats can flip the Ohio Supreme Court from Republicans
- Composition: 5 Republicans, 2 Democrats
- 2020 elections: 2 seats up (nonpartisan with partisan primaries)
- Republican Justice Sharon Kennedy, first elected in 2012, faces Democratic Cuyahoga County trial court Judge John O’Donnell, who narrowly lost in 2016 for another Supreme Court seat
- Republican Justice Judith French, appointed in 2013 by ex-Gov. John Kasich (R), faces Democratic Court of Appeals Judge Jennifer Brunner, who won one term as secretary of state in 2006
Ohio is often described as a state that recently enacted redistricting reforms, but those measures were largely window dressing that will do little to stop Republican gerrymandering as-is. However, Democrats have the chance to take control of the state Supreme Court, which could actually put some teeth into those reforms and stop extreme GOP maps.
Texas
- Bottom line: Democrats can shrink Republicans’ majority on the Texas Supreme Court to one seat
- Composition: 9 Republicans
- 2020 elections: 4 seats up (partisan)
- Republican Justice Jeffrey Boyd, appointed in 2012 by ex-Gov. Rick Perry (R), faces Democratic Dallas County District Court Judge Staci Williams
- Republican Chief Justice Nathan Hecht, appointed in 2013 by ex-Gov. Rick Perry (R), faces Democratic Travis County District Court Judge Amy Clark Meachum
- Republican Justice Brett Busby, appointed in 2019 by Gov. Greg Abbott (R), faces Democratic Court of Appeals Judge Gisela Triana
- Republican Justice Jane Bland, appointed in 2019 by Gov. Greg Abbott (R), faces Democratic attorney Kathy Cheng
While Democrats can’t gain control over the Texas Supreme Court this fall, they can do a lot of damage: If they run the table, the GOP’s majority would shrink from 9-0 to just 5-4. That would put them in position to flip the court as soon as 2022.
Winning a majority in Texas would be critical for stopping Republican gerrymandering. Even if the GOP retains control over redistricting following the 2020 census, the courts could step in after the fact to order fairer lines be drawn. The impact could be huge: Texas is poised to gain three seats in Congress, giving it 39 in total. More equitable maps could allow Democrats to gain a number of seats. The same would be true for the legislature, particularly given the trends that are turning the state blue.
