1 - How Gerrymandering Helped Republicans Win the House.
At the start of the 118th U.S. Congress in January 2023, Republicans will hold 222 seats in the U.S. House of Representatives and Democrats will hold 213 — one of the closest House margins in years. Had Democrats won just five more seats, they would have retained a bare House majority and full control of Congress.While keeping the House margin so narrow represents something of an unprecedented success for Democrats, it’s important not to lose sight of the impact that the decennial redistricting process had on this outcome. Republicans spent much of 2021 and 2022 enacting new maps to give themselves an electoral advantage, and this year’s midterms were the first elections held under the new district lines. Though it’s impossible to know for sure what would have happened under a different set of maps, it’s entirely plausible that Republicans only won the House thanks to gerrymandered maps in the following states — and a few helpful assists from the courts.
2 - The Purcell Principle’s Big Year.
This year, different courts found new redistricting maps in states like Alabama and Georgia likely illegal. Yet, those unfair maps were in place for the 2022 midterm elections. The challenged provisions of Florida’s voter suppression law also remained enacted for the midterms.
In numerous consequential cases this year — in many of which, the impact on voters and democracy cannot be understated — judges at all levels of the federal judiciary relied on a vague and shifting legal principle to maintain an anti-democratic status quo. This principle is called the Purcell principle, which emerged in 2006 from a six-page U.S. Supreme Court order.
On Oct. 20, 2006, weeks before the midterm elections, the Supreme Court reinstated Arizona’s restrictive citizenship law that had been blocked by the 9th U.S. Circuit Court of Appeals in Purcell v. Gonzalez. The Supreme Court’s order was limited in part because it surfaced on the Court’s “shadow docket,” where emergency requests do not undergo full briefing or oral argument. The unanimous order hinged on the fact that the 9th Circuit, in an unexplained decision, did not give appropriate deference to the district court. (Fact finding takes place at the lowest court level — in federal courts, those are U.S. district courts — and appellate courts can review those decisions.)
Yet, the significance of Purcell’s short “shadow docket” order lies not in the main holding, but in other language. The Court wrote: “Court orders affecting elections, especially conflicting orders, can themselves result in voter confusion and consequent incentive to remain away from the polls. As an election draws closer, that risk will increase.”
In those 31 words, the Supreme Court unleashed an “anti-confusion” concept that, specifically in the past two years, has spiraled out of control. The Purcell principle was only cited a few times by the highest court in the following decade after it was first noted. The COVID-19 pandemic and the flurry of election law changes it engendered before the 2020 election breathed new life into the undefined concept. In 2022, a shallow invocation of “confusion” has been used to uphold gerrymandered maps and unconstitutional voting restrictions across the country.
