Why the Democratic path to a House majority may run through a courtroom

Many Democrats are bullish on their chances of winning back the Senate next year, and most sound confident they can hold on to the White House. Few think they have a prayer of taking back the House of Representatives. So now they’re playing the long game – turning to the courts to help deliver what the ballot box won’t.


Top Democratic attorneys are arguing before state and federal courts that district maps drawn in a handful of states violate the Voting Rights Act by improperly packing African American voters into a small number of districts, limiting their influence.


In Virginia, a U.S. District Court ruled last year that the Commonwealth's one majority-black district, stretching from Richmond to Hampton Roads, limited those voters. Now, legislators have until September 1 to draw new maps.


The U.S. Supreme Court in March ordered a lower court to consider whether Alabama's legislature similarly packed African American voters into state legislative districts to minimize their influence. Last month, the high court ordered North Carolina's Supreme Court to consider whether legislators there had done the same thing.


And in March, Florida's Supreme Court heard arguments over whether new district maps violate state constitutional mandates that prohibit gerrymandering on a partisan basis.


[Judge orders new congressional map in Florida by Aug. 15]


In each case, the district maps at the heart of the legal complaints were drawn by Republican-controlled legislatures. And in each state, those maps helped Republicans secure overwhelming congressional majorities. Republicans control 10 of 13 House seats in North Carolina; 17 of 27 in Florida; eight of 11 in Virginia and six of seven in Alabama.


"No question, 2010 redistricting hurt us," said Kelly Ward, who heads the Democratic Congressional Campaign Committee. Asked whether the party could win the 218 seats necessary to take back the majority, she said: "There's always a chance, of course."


Rob Simms, Ward's counterpart at the National Republican Congressional Committee, has a different take: "I think it's very difficult" for Democrats to take back the majority under the current maps, he said.


The district lines drawn by Republicans after the 2010 census left Democrats with few real opportunities. David Wasserman of the Cook Political Report says just 28 House seats are truly competitive -- and seven of those seats are held by Democrats. The party would need to win all of those, plus nine more solidly Republican seats, to win a majority.


The court cases in question today could change the balance of power in only a small handful of seats. Mark Gersh, a leading Democratic Party redistricting expert, estimated that his side could pick up two to three seats each in Virginia and Florida, and one to two seats in North Carolina.


"We're only talking about fiddling around the margins here," said Michael McDonald, a redistricting expert at the University of Florida who served as an expert witness in the Virginia lawsuit.


But if courts rule in Democrats' favor, those rulings would set a legal precedent for the next round of redistricting, when Democrats would have a stronger case against what they perceive to be racially-motivated redistricting that packs their voters into a smaller number of districts.


Republicans were able to draw those favorable maps after the 2010 census because of that year's GOP landslide, which handed the party control of the House -- and, more importantly, of state legislative chambers across the country, which are more subject to political waves than federal seats. All told, the GOP picked up more than 700 legislative seats that year – which translates into roughly one in ten legislative seats in the entire country.


Because legislators in many states draw new maps every decade, the timing of the Republican wave couldn't have been better for the GOP -- or worse for Democrats.


[Flashback: The political middle is dying. But it's not redistricting's fault.]


"The 2010 redistricting situation was caused by this incredible Republican wave in which they won governorships and legislatures in states that would normally be competitive or lean-Democratic," Gersh said. He pointed to states like Pennsylvania, Michigan and Florida, which are competitive in presidential election years but which voted heavily Republican in that year's midterm elections.


The lesson Democrats have taken from the 2010 round of redistricting, and the disadvantage they now face, is that the party needs to invest more in contests for state legislative seats.


The Democratic Legislative Campaign Committee, tasked with helping the party win those seats, recently opened a super PAC to raise money for those contests; the group's Republican counterpart, the Republican State Leadership Committee, aggressively courted major donors before the 2010 elections by conveying the opportunities controlling legislative chambers presented.


"In all these cases, Democrats need to win more seats in legislative chambers so we can prevent the kind of gerrymanders that are being declared unconstitutional by these courts," said Carolyn Fiddler, a DLCC spokeswoman.


But Democrats face another wrinkle: The Supreme Court is considering whether an independent commission created by Arizona voters in 2000 has the constitutional authority to draw new districts. Republicans believe the Constitution reserves for legislatures the power to draw political boundaries; they think allowing the GOP-led legislature in Arizona to draw new lines could hand them at least one, if not two, Democratic-held districts.


"Redistricting has frequently been shaped in significant ways by high profile Supreme Court cases, and we are confident Republicans will be nimble enough to adapt to any potential changes resulting from the latest round of cases," said Matt Walter, president of the Republican State Leadership Committee.


If the court rules in the GOP's favor, California's commission-based redistricting may be up for grabs, too (Though, ironically, Democrats think they could squeeze a few more seats out of California if the high court rules for Arizona Republicans).


Democrats and Republicans are keeping close tabs on the cases making their way through the courts, though each side admits there isn't much they can do once judges hear their arguments. That's a strange sense of powerlessness for both sides -- one that hopes to preserve its new majority beyond the next decade, and the other struggling to return to political relevance.