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— The Supreme Court’s Allen v. Milligan decision should give Democrats at least a little help in their quest to re-take the House majority, but much remains uncertain.
— As of now, the Democrats’ best bets to add a seat in 2024 are in Alabama, the subject of the ruling, and Louisiana.
— It also adds to the list of potential mid-decade redistricting changes, which have happened with regularity over the past half-century.
— The closely-contested nature of the House raises the stakes of each state’s map, and redistricting changes do not necessarily have to be prompted by courts.
Landmark U.S. Supreme Court decisions can sometimes be categorized as either beginnings or endings. Take, for instance, a couple of past important decisions that at least touch on the topic of redistricting.
In 1962, the court’s Baker v. Carr decision was a beginning: After decades of declining to enter what Justice Felix Frankfurter described as the “political thicket” of redistricting and reapportionment, the Supreme Court opened the door to hearing cases that argued against the malapportionment of voting districts. A couple of years later, the court’s twin decisions of Reynolds v. Sims and Wesberry v. Sanders mandated the principle of “one person, one vote” be used in drawing, respectively, state legislative and congressional districts, kicking off what is known as the “reapportionment revolution.”
More recently, the court’s 2013 Shelby County v. Holder decision represented an ending: The court threw out the preclearance coverage formula of the Voting Rights Act. Prior to that decision, certain states and jurisdictions (mostly but not entirely in the South) had to submit changes in voting procedures, such as redistricting plans, to the U.S. Department of Justice for preclearance. The court said that this method of determining which places needed preclearance was outdated, and Congress has never mandated a new preclearance formula. So prior to the Shelby County decision, a state like Alabama would have had to have cleared its new congressional district map with the Justice Department. In 2021, it did not have to.
The U.S. Supreme Court’s decision in Allen v. Milligan last week is neither a beginning nor an ending, although Republican authorities in Alabama and others surely hoped it would represent a form of the latter. Rather, the case is best thought of as a continuation of current law and how the Supreme Court interprets current law — namely, that Section 2 of the Voting Rights Act and the so-called “Gingles test” that undergirds it still exists in the same way we understood them prior to the Milligan decision.
The Gingles test is a three-pronged assessment, laid out as followed in the 1986 Supreme Court decision Thornburg v. Gingles (we’re quoting directly from that decision). These are the conditions that need to be in place in order for a federal court to order the creation of a new majority-minority district:
— “First, the minority group must be able to demonstrate that it is sufficiently large and geographically compact to constitute a majority in a single-member district.”
— “Second, the minority group must be able to show that it is politically cohesive.”
— “Third, the minority must be able to demonstrate that the white majority votes sufficiently as a bloc to enable it… usually to defeat the minority’s preferred candidate.”
Basically, the thing that was surprising about Milligan is that Democrats and their allies thought it was going to be bad for their side to at least a certain degree given the conservative makeup of the court. Instead, the Supreme Court didn’t really change anything.
We are not lawyers, and we will not pretend to be lawyers. Racial redistricting jurisprudence is, to us and likely to many others, confusing. Following discussions with some people who follow redistricting matters on both sides of the political aisle, we’re going to try to assess the fallout from the decision. Let’s start in Alabama and work our way to other states. This is not intended to touch on every single state with potential redistricting legal action that may or may not be impacted by Milligan; rather, we just wanted to hit the highlights of certain states and what the state of play in each is:
— In the Milligan case, a District Court found that Alabama’s congressional map likely violated Section 2 of the Voting Rights Act by creating a single district where Black voters made up a majority when it should have created two. Alabama is just over a quarter Black, but Black voters constitute a majority of just one of the state’s seven districts (14%). Those who sued over the map persuasively showed that it’s possible to draw a second Black district that satisfies the conditions of the Gingles test. What the actual map will eventually look like remains a mystery, but the likeliest outcome seems to be that instead of Alabama having a single, overwhelmingly Democratic district (the current 7th District, represented by Democrat Terri Sewell), the state seems likely to eventually have two districts that Democrats are favored to win. This is now reflected in our Crystal Ball House ratings — after the decision last Thursday, we tweeted that we were moving one unspecified Alabama district from Safe Republican to Likely Democratic. We say only Likely Democratic because it’s possible that this new district would not be an absolute slam dunk Democratic victory (or perhaps AL-7 would be reconfigured in such a way that it would be borderline competitive).
— A federal court in Louisiana made an analogous ruling in that state, which is politically similar to Alabama. Louisiana is about a third Black, but only one district (the 2nd, held by Democrat Troy Carter) is majority Black, so the state has five Safe Republican districts and one Safe Democratic district. Again, the endgame here very well could be that Democrats end up getting another seat, but we want to see how things play out. Louisiana uses a unique “jungle primary” system, in which all candidates compete together in the same primary, with a runoff required if no one clears 50%. Does that have an impact on the eventual jurisprudence here, or on how a newly-drawn district might perform politically? Or does Louisiana’s system help Democrats, given that because of the jungle primary — which in 2024 will occur concurrent with the November general election — filing deadlines are late in Louisiana, which gives this case extra time to wind through the legal system in advance of the 2024 election. It may be the case that despite Louisiana being similar to Alabama, the Gingles test may not force a second majority-Black district there in the same way as might happen in Alabama — or that is at least what state Republicans want the U.S. Supreme Court to ponder. (Democrats and their allies of course disagree and see Alabama and Louisiana as very similar — that makes sense to us, too, but we shall see.)
— This case also could force changes in Georgia, although it seems possible that a new map there wouldn’t actually change the partisan balance in the state, which is 9-5 Republican following a GOP gerrymander there in advance of the 2022 election. In other words, perhaps a currently Democratic seat in the Atlanta area could be altered to satisfy a court order to add an extra Black seat without actually giving the Democrats an extra seat. Court-ordered redraws do not always lead to changes to the political bottom line: North Carolina Republicans were ordered to redraw their congressional map because of racial gerrymandering concerns in advance of the 2016 election, but they did so in such a way that they were able to preserve their 10-3 statewide majority (we’ll get back to North Carolina later).
— A federal court also ruled against the South Carolina congressional map earlier this year, but it did so in a different way than in the Alabama case. Unlike in, say, Alabama and Louisiana, it might be difficult to satisfy the Gingles test in South Carolina to add a second Black district because of the compactness prong of Gingles: The Black population share in the state is very similar to Alabama, but Black South Carolinians are just more geographically spread out. So when thinking about Milligan’s ramifications, we aren’t including South Carolina in our calculations, based on our best understanding. The U.S. Supreme Court is slated to hear this case in its next term.
— The situation is also different in Florida, where there is ongoing litigation over the partisan gerrymander successfully pushed by Gov. Ron DeSantis (R) last cycle. Among other things, that map undid a Safe Democratic, substantially Black (but not majority Black) district that ran from Jacksonville to Tallahassee. The state Supreme Court in Florida may order that district restored in some form — although the court is fairly aligned with DeSantis, so we wouldn’t necessarily bet on it — but, if it does, the court’s decision would be based on particulars in the state constitution, amended by voters in 2010 to prevent gerrymandering, as opposed to federal law (Democratic analyst Matt Isbell had a good rundown of the situation there if you’re curious).
— Texas also comes up in discussions of the ripple effects of the Milligan ruling, but the situation there is more complicated in part because the discussion is more about Latino voters than Black voters, and Latino voters are not as politically cohesive as Black voters are — which, again, may complicate a court using the Gingles test to force a redraw there.
So what’s the upshot here? Again, and we have to stress this even though it’s an answer that won’t satisfy anyone, we are just going to have to wait to see how things shake out. But we do think some of the post-Milligan analysis that suggested that Democrats could enjoy a windfall of several seats in time for the 2024 election is, at the very least, premature. That may happen, eventually, but at the moment we’re most focused on the likelihood of a single extra Democratic seat in Alabama (which is now reflected in our ratings) and quite possibly Louisiana (which is not reflected in our ratings, at least for now).
One other thing to remember — just because Democrats got a ruling that they liked here does not mean that this very conservative court is going to start ruling for them on related cases in the future. As others noted, the key vote in this 5-4 decision was probably Justice Brett Kavanaugh, who left some breadcrumbs suggesting that Alabama just did not make the right arguments in this case. This is part of the reason why we are not making a ton of assumptions right now about what is next in states beyond Alabama.
Speaking of future Supreme Court decisions, Milligan was not the only important redistricting-related case in front of the court this term: We are still waiting to see what the Supreme Court says in Moore v. Harper.
That case is about the North Carolina state Supreme Court’s intervention against a Republican gerrymander in advance of the 2022 election. That intervention turned what would have been a 10-4 or even 11-3 Republican map in North Carolina into what became a 7-7 tie in November 2022, saving the Democrats several seats. Since then, Republicans have taken control of the North Carolina court, which already overruled its previous decision that defanged Republican gerrymandering efforts. So Moore v. Harper appears very unlikely to have any practical bearing now on North Carolina itself: Republicans are going to have the power to restore a gerrymander there.
The importance of the case from a redistricting perspective, then, is whether the U.S. Supreme Court will impose constraints on state judicial interventions against congressional maps. We have no idea what the court is going to do — it might just punt the decision given that North Carolina’s Supreme Court reversed itself after it changed from Democratic to Republican in 2022. However, the U.S. Supreme Court may issue a decision that impacts the ability of other state courts to intervene against gerrymandering. That could have ripple effects, like in Wisconsin, where the state’s new, Democratic-leaning state Supreme Court may be tempted to rule against Republican partisan gerrymanders later this year. Stay tuned.
Since the Supreme Court’s aforementioned Wesberry v. Sanders decision, which applied the concept of “one person, one vote” to congressional redistricting, there have been 30, two-year congressional election cycles (every even-numbered year from 1964 through 2022). Based on research I did for my history of recent House elections, 2021’s The Long Red Thread, at least one congressional district (and often more) changed from the previous cycle in 23 of those 30 election cycles. Most of these changes (though not all) were forced by courts. The 2024 cycle will make it 24 of 31 cycles, with potentially several states changing their maps in response to court orders. We bring this up to say that despite the now-familiar rhythm of all the states with at least two districts redrawing to reflect the census at the start of every decade, it’s common for at least some districts to change more often than that.
Beyond the states mentioned above, at least some of which will have new maps next year, Ohio is also likely to have a new map that quite possibly will be better for Republicans than the current one, which the Ohio Supreme Court ruled unconstitutional but which was eventually used anyway in 2022 (just like in North Carolina, the Ohio Supreme Court has since changed in such a way to make it more amenable to GOP redistricting prerogatives going forward). Democrats in New York are trying to force a new map, in part because of changes to that state’s highest court that may make that court more amenable to Democratic redistricting arguments than the previous court, which undid a Democratic gerrymander. The particulars in both states require longer-winded explanations that we’ll save for another time.
And aside from the changes forced by courts, one also wonders if we will eventually see a redistricting technique that at one time was common but really has not been in recent decades: a state legislature enacting an elective, mid-decade remap without prompting by the courts.
The most famous modern example of this is when Texas Republicans redrew their state’s congressional map following the 2002 election. That gerrymander, which is most closely associated with former House Majority Leader Tom DeLay (R), came after Republicans took full control of Texas state government in 2002. They replaced a court-drawn map that reflected a previous Democratic gerrymander and imposed their own partisan gerrymander, turning a 17-15 deficit in what had become a very Republican state into a 21-11 advantage. Georgia Republicans did something similar later in the decade, though to much less effect; Colorado Republicans tried to but were blocked by state courts — some states do not allow mid-decade redistricting, but others do (there is no federal prohibition on mid-decade redistricting). North Carolina’s looming redraw is somewhat similar to those in Texas and Georgia from the 2000s: The voters changed the political circumstances — Republicans taking control of Texas and Georgia state government in 2002 and 2004, respectively, and Republicans flipping the North Carolina Supreme Court in 2022 — paving the way for the partisan gerrymanders that did (or will) follow.
The redistricting stakes are extremely high at a time when U.S. House majorities are so narrow. Democrats won just a 222-213 majority in 2020, and Republicans won the same 222-213 edge last year. It’s possible that the net impact of mid-decade redistricting — including some of the changes we’ve laid out above — could be decisive in who wins the majority next year. It may also prompt other states to try to go back to the redistricting well without prompting by courts — and if they determine they can based on state law — if they believe that new maps could make a difference in determining majorities.
— In last night’s high-stakes state Supreme Court race in Wisconsin, Democratic-aligned Janet Protasiewicz comfortably dispatched former Justice Daniel Kelly, giving liberals a 4-3 majority on the court.
— Compared to some previous Democratic-aligned judges, Protasiewicz had a more “nationalized” voting coalition, although she still carried several Republican-leaning parts of the state.
— A liberal state Supreme Court could revisit redistricting-related matters, to the benefit of Democrats, although there are a lot of moving pieces. With that in mind, we are downgrading our rating for southeastern Wisconsin’s 1st District from Safe Republican to Likely Republican.
| District | Old Rating | New Rating |
|---|---|---|
| Bryan Steil (R, WI-1) | Safe Republican | Likely Republican |
In Wisconsin last night, Judge Janet Protasiewicz defeated former state Supreme Court Justice Daniel Kelly in what became a nationally-watched (and very expensive) race. Importantly, Protasiewicz will be replacing the retiring Pat Roggensack, a conservative veteran of the court — this will give the court’s liberal bloc a 4-3 majority on the bench. During the campaign, Protasiewicz was clear that, if elected, she would side with Gov. Tony Evers (D-WI) over the Republican leadership in the legislature when it came to high-profile issues like abortion or gerrymandering (more on that later).
In our write-up last week, we called Protasiewicz a mild favorite: though the race was hard to nail down exactly, we wrote that we expected anything from a double-digit Protasiewicz win to a slight Kelly win. A commanding Democratic win would have followed the pattern of 2 of the last 3 state Supreme Court races (2018 and 2020) while the 2019 race offered a template for a Republican-aligned upset.
The result last night was nearly a carbon copy of the 2018 and 2020 results: Protasiewicz won by 11 points, or about the same margin as now-Justices Rebecca Dallet and Jill Karoksfy, who she will soon join on the bench.
Though former President Trump’s indictment happened a day after we put out our analysis last week, it was something that would, according to some punditry, rally Republicans. But, as we’ll explore here, last night’s returns offered scant evidence that Kelly disproportionately benefited from any Trump-inspired backlash.
One of our other pre-election predictions held up well: high turnout was a hallmark of last night’s election. In February’s primary election, roughly 960,000 votes were cast. As of this writing, that number roughly doubled in the second round, with close to 1.84 million votes cast. 2023 featured the second highest-turnout April state Supreme Court race of the last decade, falling only behind 2016. About 1.95 million votes were cast in that 2016 race — importantly, it was held in conjunction with the presidential primary that year, where both sides saw competition.
Though turnout was down slightly from 2016’s contest, it rose in 10 counties. Dane County (Madison), which is one of the two Democratic powerhouse counties in the state, was among those 10 — it easily had the largest increase, casting 23,000 more votes than in 2016. The county that saw the largest decrease was actually the state’s other blue bastion, Milwaukee, which tallied 45,000 fewer votes this year. But that Milwaukee decline was not necessarily to Democrats’ detriment. Kelly earned only half as many votes in Milwaukee (124,000 compared to 63,000) as Justice Rebecca Bradley, the conservative that year, while Protasiewicz garnered 17,000 more votes there than JoAnne Kloppenburg, the liberal candidate who lost statewide by 5 points.
As noted earlier, in terms of the percentage margin, 2023 lined up nicely with the toplines from 2018 and 2020: in all 3 instances, the Democratic-aligned judges won by about 11 points.
Conveniently, for the sake of comparison, Kelly was the conservative candidate in both the 2020 and 2023 elections. Last week, we wondered whether the increasingly partisan nature of state Supreme Court elections, coupled with the expected high turnout this year, could lead to a more “presidential” coalition. As Map 1 shows, that was basically the case.
Protasiewicz fared about half a percentage point better than Karofsky overall but lost ground in 59 of the state’s 72 counties. The 3rd District, which takes up a large swath out west, illustrates some of the gains Kelly made in non-metro Wisconsin. According to our rough unofficial calculations, Protasiewicz carried the district by about 10 points — which is quite respectable, considering it gave Trump a 5-point margin and flipped to Republicans last year. But in 2020, Karofsky would have carried the 3rd District by closer to 15 points (the seat was barely altered in redistricting).
Though we flagged the area as a potential Democratic cause for concern — mostly because it torpedoed their chances in 2019 — Protasiewicz performed well in metro Milwaukee. As the third image on Map 1 illustrates, Milwaukee County was the sole county where Protasiewicz improved by more than 10 points on Karofsky’s showing. In fact, Protasiewicz swept all 19 municipalities within the county — this has likely not been done by a Democratic or liberal candidate since 2017, when Evers was reelected in a 40-point landslide to his previous position, state Superintendent of Public Instruction.
In an era when, from election to election, Democrats have seen their most obvious gains come in the suburbs, last night’s result represented something of a change of pace. Compared to Karofsky, Milwaukee proper was one of the municipalities that shifted most to Protasiewicz, as Table 2 shows.
To be clear, Table 2 is not meant to single out Karofsky as a poor performer in Milwaukee (her numbers were quite robust), but it is more to emphasize how strong Protasiewicz’s showing was. In fact, Protasiewicz’s 81.9% within the city of Milwaukee was even stronger than the 80.1% two-party share that Joe Biden received there.
Aside from Menominee County, a small county in the north that consists of an American Indian reservation, the county that shifted most to Democrats since February’s first round was Waukesha, one of the Republican-leaning “WOW” suburban counties that border Milwaukee County. Six weeks ago, Waukesha County gave the Republican-aligned candidates a combined 64%-36% share over the Democrats. Kelly’s advantage there last night slipped to 58%-42%. In February, Kelly’s GOP rival was Judge Jennifer Dorow, who had a base in Waukesha and performed better than him in most Milwaukee metro counties. Given last night’s result, we have to wonder if Dorow would have been a stronger conservative candidate than Kelly. At minimum, Kelly likely suffered some defections from Dorow voters.
A notable result from last night — and one that Democrats will certainly try to replicate in actual partisan races — was that Protasiewicz narrowly carried the City of Waukesha, the largest municipality in the similarly-named county.
The victory by Protasiewicz opens the door to the Wisconsin Supreme Court to potentially intervene against the state’s congressional map, which is a version of a Republican partisan gerrymander. Other state courts have done so in recent years against both Republican and Democratic gerrymanders.
This has national implications given the closely-divided U.S. House. Despite being one of the nation’s most competitive states, Republicans now hold a 6-2 advantage in the state’s U.S. House delegation. After losing the red-trending Obama-to-Trump WI-3 in western Wisconsin last year, Democrats are now confined to just a pair of heavily blue enclaves centered around Madison and Milwaukee.
The current congressional map is actually one drawn by Evers. Following Evers’s decision to veto the Republican legislature’s maps during the post-2020 census round of redistricting, the state Supreme Court and its 4-3 Republican majority asked both sides to submit maps, but they asked for only minimal changes to the existing map. So the map, which is a Republican partisan gerrymander from a decade ago, was just tweaked. The court, in a 4-3 decision reached by the 3 Democratic-aligned justices as well as Republican-aligned Brian Hagedorn, picked Evers’s map. But, again, it’s still functionally a Republican gerrymander, although Wisconsin’s political geography also lends itself to Republican advantages in redistricting. Our understanding is that one might not expect a “fair” map, however defined, to produce 50-50 outcomes in a 50-50 political environment in the state, although we also don’t think a 6-2 Republican advantage in the congressional delegation and huge Republican state legislative majorities really reflect the political makeup of Wisconsin. (We analyzed the current map in depth last year.)
So we’ll see if the court decides to intervene now that Democratic-aligned justices are in charge. Protasiewicz does not take office until August, and litigation that would eventually lead to the state Supreme Court ruling against the congressional map remains only a hypothetical at this point, although a progressive law firm plans to ask the state Supreme Court to hear a redistricting case once Protasiewicz takes office, the New York Times reported.
Still, we are not going to necessarily assume that Wisconsin will have a new U.S. House map next year. There are a number of hurdles to be jumped first. That could include the Moore v. Harper U.S. Supreme Court case, which could end up constraining the ability of state Supreme Courts to intervene in cases regarding congressional gerrymandering. That case concerns the formerly Democratic North Carolina state Supreme Court’s intervention against a Republican congressional gerrymander there. But now that the North Carolina court flipped to Republican control last November, the new state court is rehearing a related case and may reverse the old decision. So it’s possible that the U.S. Supreme Court will just punt on Moore v. Harper following the change on the North Carolina court.
However, consider this possibility: What if the U.S. Supreme Court stands down on Moore v. Harper, and then the Wisconsin Supreme Court intervenes against its state’s congressional map? Couldn’t Moore v. Harper be revived, only this time as a Wisconsin case, as opposed to a North Carolina one? That is one of the moving pieces we’re keeping in mind as we think about the Wisconsin congressional landscape.
One other thing: As part of last night’s election, Republicans narrowly held a state Senate seat in a Trump +5 seat in a special election, which gives Republicans a supermajority in the Senate. That gives Republicans the power to potentially convict officials, such as Supreme Court justices, as part of an impeachment process initiated in the state House. State Sen.-elect Dan Knodl (R), who won the state Senate race last night, suggested the possibility of impeaching Protasiewicz in a pre-election interview. So a high-stakes battle over redistricting could also involve the “I” word. (And that doesn’t even get into abortion, the issue that likely played a huge role in Protasiewicz’s victory.)
We are making one rating change following the liberal takeover of the Wisconsin court. Rep. Bryan Steil (R, WI-1) moves from Safe Republican to Likely Republican. We considered listing Steil — Paul Ryan’s successor in the House — in our initial ratings, as he holds a district that is competitive on paper (Trump only won it by 2 points, and Protasiewicz carried it with about 53% in last night’s contest). The added uncertainty of redistricting gives us more reason to list it, as it’s possible that if the court imposes a new map and if it is in place for the 2024 election, both WI-1 in southeast Wisconsin and WI-3 in western Wisconsin could take on blue chunks of the Milwaukee and Madison areas, respectively. Those changes could seriously imperil newly-elected Rep. Derrick Van Orden (R, WI-3) and Steil in WI-1.
So they’ll both be Likely Republican for now, with the potential for much more dramatic changes down the line depending on how what appears to be a looming redistricting legal battle goes.
— If no candidate receives a majority of Electoral College votes, the U.S. House of Representatives elected in the 2024 election would decide the presidency.
— Republicans are very likely to continue to control enough House delegations to select the GOP nominee as the winner, meaning that 269 is effectively the winning Electoral College number for Republicans, while it’s 270 for Democrats.
— Republicans currently control 26 of the 50 House delegations, the bare majority to win in the House if the Electoral College does not produce a majority winner.
Next year, 2024, coincides with a pair of bicentennial anniversaries in American presidential election history.
The presidential election of 1824 was the first one in which there is a tabulation of the actual popular vote for president, albeit not from every state. A majority of states in the Union at the time had adopted a popular vote for presidential electors; previously, presidential electors had generally been chosen by state legislatures. Thus, one can describe 2024 as representing the 200th anniversary of a popular vote for president, even if the totals represented only 18 of the 24 states voting at the time. (This history is from What Hath God Wrought: The Transformation of America, 1815-1848 by Daniel Walker Howe).
The 4-way presidential race failed to produce a majority winner in the Electoral College: Andrew Jackson finished first, with 41% of the popular vote and 38% of the electoral votes, short of the majority required for election. The election went to the House of Representatives, which brings us to the second bicentennial anniversary in 2024: 1824 was the most recent election in which the House decided the presidential winner. The 12th Amendment stipulates that in the event no one wins a majority of the Electoral College votes, the House chooses among the top 3 finishers in the Electoral College, with each state’s delegation getting a single vote. The House ended up backing the second-place finisher, John Quincy Adams. Jackson would get his revenge in a landslide victory 4 years later.
The dueling anniversaries illustrate the conflicting realities at the heart of the American presidential election system. On one hand, the 1824 election represents an important step in the evolution of the mass electorate’s role in presidential elections, with the franchise slowly being expanded to women, Black Americans, 18-20 year olds, and others over the course of the past 2 centuries. The expansion of the franchise has at its heart a very basic assumption — the voters should pick the president.
On the other hand, the dusty, old system used in 1824 to resolve an inconclusive election endures, lying in wait to befuddle most Americans (and enrage many of them) if it is ever needed. It is reminiscent of the Electoral College itself — an ancient foundation upon which we have constructed our modern representative democracy. Like the Electoral College, the House tiebreaking procedure was created at a time before rank-and-file voters were truly involved in selecting the president. So if the people (the voters) don’t produce a clear verdict, they effectively forfeit the choice to an elected representative body, albeit divided in such a way (into 50 state-level subgroups) that might not make it representative of the full membership of the whole House. This is not neatly compatible with majoritarian ideals — but, then again, neither is the Electoral College or the U.S. Senate. Would we design a system like this today? The answer is obvious, but it also just doesn’t matter in the context of the upcoming election, as the system is not going to change. So we need to understand it in order to be ready for all possible outcomes.
The House tiebreaking procedure — unlike the Electoral College, which is endlessly debated and analyzed — is not a prominent feature of election analysis and commentary, probably because it has never been used in anyone’s lifetime and because the odds of it being used are so low. But as we showed in yesterday’s Crystal Ball, a tie came close to happening in 2020, and there are plausible scenarios under which it could happen in 2024.
If there is a tie, Republicans continue to have an advantage in the House tiebreaking procedure, and they are very likely to retain it following the 2024 election, regardless of which party wins the overall House majority.
That’s because in the House tiebreaking vote, each of the 50 states gets a single vote, and a majority of the votes (26) are required to select a president. Presumably, members of the party that hold a majority of seats in a given delegation would cast their vote for their party’s presidential candidate. Evenly-divided states might end up unable to cast a vote. The new House — meaning the one elected in 2024, not the current one — would break the tie. The Senate, meanwhile, would select the vice president. That is a more straightforward process, as each of the 100 senators gets a single vote.
Map 1 shows the control of the individual House delegations by party.
Republicans currently control 26 of the 50 House delegations, the bare minimum needed to elect the president in a House vote. Democrats control 22, and a pair of states — Minnesota and North Carolina — are split. This is almost the exact same division as there was the last time we wrote about this, in advance of the 2020 election, when Republicans held a 26-23-1 advantage (a handful of states have changed hands either way since then). Back when we last looked, in September 2020, Democrats held a 232-198 advantage in the House, with 4 vacancies at that time and with now-former Rep. Justin Amash of Michigan serving as an independent after leaving the GOP. Now, Republicans will have a 222-213 majority once Rep.-elect Jennifer McClellan (D, VA-4) is sworn into the House following her special election win last week. Democrats held the majority back in 2020, but now Republicans do.
We recently released our initial House ratings for 2024. Those ratings help inform our state-by-state assessments of the delegations. Let’s start with the delegations we consider to be effectively Safe Republican, then those that are Safe Democratic, and finally those where there is at least a little bit of a question about which side will control the delegation following next year’s elections.
First of all, 22 states have House delegations we consider Safe Republican in 2024: Alabama, Arkansas, Florida, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Nebraska, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, West Virginia, and Wyoming.
Meanwhile, Democrats have just 13 Safe delegations of their own: California, Connecticut, Delaware, Hawaii, Illinois, Maryland, Massachusetts, New Jersey, New Mexico, New York, Rhode Island, Vermont, and Washington.
That leaves 15 states where there is at least some question about which party will control the delegation following 2024. We’ll go through them in alphabetical order:
Alaska: Rep. Mary Peltola (D, AK-AL) is the single member of this House delegation. In addition to facing what will likely be a competitive reelection challenge, Peltola also would face pressure to cast her vote for the presidential winner in her state, assuredly a Republican in a situation where a tie is possible (we could imagine a Democrat carrying Alaska for president, but only as part of a national landslide). Leans Democratic
Arizona: Republicans flipped this delegation from 5-4 Democratic to 6-3 Republican last year. However, 2 of the GOP seats are very marginal, so Democrats could win the delegation back as soon as next year. Leans Republican
Colorado: Democrats have a 5-3 edge, but Rep. Yadira Caraveo (D, CO-8) only very narrowly won a new swing seat, and Rep. Lauren Boebert (R, CO-3) also came very close to losing a Republican-leaning seat. If things broke right for Republicans, they could get to a 4-4 tie. Leans Democratic
Iowa: Republicans have a 4-0 edge, which they completed last year with Rep. Zach Nunn’s (R, IA-3) very close win over former Rep. Cindy Axne (D) in the marginal Des Moines-based IA-3. Democrats would have to win that seat back and flip 1 of 2 competitive but Republican-leaning eastern districts to get to a tie (we rate both seats Likely Republican). Iowa may not be quite Safe Republican, but it is close. Likely Republican
Maine: Republicans could forge a tie here if they knocked off Rep. Jared Golden (D, ME-2), who holds a Trump-won seat. Leans Democratic
Michigan: Democrats hold a narrow 7-6 statewide lead, but they are defending the open MI-7, which was very narrowly decided for president in 2024. Reps. Dan Kildee (D, MI-8) and John James (R, MI-10) also hold marginal districts. Toss-up
Minnesota: The delegation is split 4-4, and the only truly competitive seat is held by Rep. Angie Craig (D, MN-2), but it is Biden +7 and Craig won a solid, 5-point victory last year. Leans Split
Montana: Republicans should hold on to their 2-0 edge here, but the seat held by Rep. Ryan Zinke (R, MT-1) is somewhat competitive (Trump +7) and Zinke won by just 3 points last year in an open-seat race. He may or may not run for Senate. Leans Republican
Nevada: The Democrats’ gerrymander helped preserve the party’s 3-1 edge here, and they remain favored in all 3 seats to start this cycle. Likely Democratic
New Hampshire: Republicans hypothetically could compete for either of the state’s seats, but both are a bit bluer than the nation as a whole. Likely Democratic
North Carolina: The state is split 7-7 right now, but it appears to be only a matter of time before Republicans redraw the map, which was imposed last cycle by a Democratic-majority state Supreme Court that has now flipped to Republican control. Assuming the Republicans end up being able to gerrymander North Carolina, they should easily win a majority of the state’s seats next year. Likely Republican
Oregon: Democrats have a 4-2 statewide edge, and the most competitive district is OR-5, which Rep. Lori Chavez-DeRemer (R) flipped last year. Likely Democratic
Pennsylvania: Democrats hold a slim 9-8 edge here, but Reps. Matt Cartwright (D, PA-8) and Susan Wild (D, PA-7) are defending Toss-up seats. Toss-up
Virginia: Rep. Jen Kiggans (R, VA-2) flipped the state’s most marginal district to cut the Democratic edge to 6-5, but Republicans will have to unseat Rep. Abigail Spanberger (D, VA-7) in a Biden +7 district to flip the delegation. Likely Democratic
Wisconsin: Republicans hold what on the current map is a fairly solid 6-2 statewide lead after flipping WI-3 last cycle, but if a Democratic-aligned justice wins next month’s state Supreme Court election, Democratic-aligned justices will control the court 4-3. That could open the door to litigation that would force a new congressional district map, perhaps splitting the Milwaukee and Madison areas and getting the delegation to 4-4. There are a lot of what ifs here, but the situation merits watching. Likely Republican, for now
So Republicans start with 22 Safe delegations. Iowa and North Carolina are likely to be delegations 23 and 24, and we favor Republicans to hold the majorities in Arizona and Montana. That’s 26 right there, and it doesn’t even include Wisconsin because of the redistricting situation. It also wouldn’t take much for Republicans to flip the Toss-ups, Michigan and Pennsylvania, particularly in a world where an Electoral College split is happening, which would suggest a close and competitive presidential election.
Meanwhile, it’s exceedingly difficult to imagine Democrats getting to a bare majority themselves, 26, in the midst of an otherwise competitive national election. There are circumstances where they could deny Republicans a majority by winning or forcing ties in almost all of the competitive states noted above.
How a deadlocked House would resolve a presidential election if neither side had a majority of delegations is anyone’s guess. Perhaps it wouldn’t. It is also unclear how a majority party that nonetheless did not control a majority of delegations would act from a procedural standpoint. If the Senate could produce a vice president (that chamber is 51-49 Democratic but is very gettable for Republicans next year), that vice president would serve as president if the House does not produce a president.
The bottom line here is that Republicans appear likely to maintain control over the presidential tiebreaking process in the House, meaning that their Electoral College magic number is effectively 269, not 270.
One other alternative that could throw the election to the House is a scenario in which a third candidate wins enough electoral votes to prevent either of the major party nominees from getting to 270. This would make the situation more comparable to 1824, when there were multiple, credible candidates who got electoral votes, making it difficult for anyone to get a majority.
While there have been protest votes cast by faithless electors in some instances over the past few decades, the last time a third party candidate actually won electoral votes in his own right was George Wallace, the Dixiecrat segregationist who way back in 1968 carried 5 Southern states and 46 electoral votes. Richard Nixon still won the Electoral College, but enough states were close that had things gone a little differently, the election could have gone to the House (which Wallace wanted as a way to dictate terms to the eventual winning candidate). That led to a serious effort to amend the Constitution to eliminate the Electoral College. President Nixon supported a constitutional amendment that easily passed the House, but it died in the Senate (Washington Post history blogger Gillian Brockell wrote about this after the 2020 election).
What third party candidate could win electoral votes in 2024? While the likeliest answer is that no one will, Donald Trump is the most plausible candidate. Republicans have long feared Trump running as a third party candidate, and he could potentially do so if he loses the 2024 Republican nomination (we’ll believe it when we see it, but one cannot rule anything out with Trump). A recent poll by Republican pollster Whit Ayres for the Bulwark found that 28% of Republican primary voters would back Trump in a general election even if he ran as an independent — a group the publication’s Sarah Longwell called the “Always Trumpers.” Again, this is all hypothetical, but if Trump ran as a non-major party candidate, got on ballots, and actually attracted and maintained this kind of support, he could potentially win some states — West Virginia, where he turned in a blockbuster performance for a GOP presidential nominee, comes to mind.
In all likelihood, this kind of GOP split — where Trump was strong enough to be winning states despite not being the GOP nominee — would swing the election to the Democratic nominee as opposed to forcing the election to the House (it could be a version of the 1912 election, when a GOP split allowed Woodrow Wilson to win the presidency). Although if this 3-way 2024 election did go to the House, imagine the political theater of House Republicans having to choose between their party’s nominee and Trump.
OK, we’ll admit, our imagination might be getting a bit out of hand here. Meanwhile, we very much hope that the 200-year streak of the House not having to pick a presidential winner goes on for many years longer. Because if that streak stops, Americans are going to be reminded just how arcane our nation’s electoral rules can be.
— The overall battle for House control in 2024 starts as a Toss-up.
— Relatively similar numbers of Democratic and Republican seats start in the most competitive Toss-up and Leans categories, although Republicans start with a few more targets in large part because of the likelihood that they will benefit from redistricting in North Carolina and Ohio.
— Big blue states California and New York, where Republicans have made key gains over the past couple of cycles, loom large as Democrats plot a path back to the House majority.
After consecutive election cycles in which the favored side won the House, but by significantly smaller margins than many (including us) expected, we want to be clear from the start how we’re viewing the House this cycle: The race for the majority begins as a Toss-up.
While midterms, and not presidential years, much more frequently serve as the engine of change in the House — 10 of the last 12 shifts in power came in midterm cycles — it is also rare for a midterm to produce such a small majority for the winning side as last year’s did.
The Republicans won a 222-213 edge last year, which is just 4 seats above the magic number of 218. That is the smallest number of seats won by the winning side in a midterm since the 1942 election, when Republicans won the national popular vote for House but were unable to break the Democratic majority (Democrats won 222 seats to the Republicans’ 209, with the remaining few seats going to third parties).
In the years since then, every other majority won in a midterm was at or above 230 seats except for the majorities that Republicans won in 1998 (223) and 2002 (229). Those happened to be a pair of strong midterm cycles for the incumbent president, Bill Clinton’s Democrats in the former and George W. Bush’s Republicans in the latter. This past midterm will also go down as a good one for President Biden’s Democrats, and while they still lost the House, they kept their losses to such a manageable number that they put themselves in striking distance of winning the House majority this cycle. That’s the same thing Republicans did in their impressive albeit losing House effort in 2020 — keeping it close and setting themselves up for the following election.
The bottom line is that parties typically build themselves a bigger buffer in the midterm than Republicans did last year, which likely contributes to the history that the House has not flipped in a presidential year since 1952. Such streaks are noteworthy but are often made to be broken.
Speaking of 1952, which represented 1 of just 2 House victories for Republicans from the Great Depression all the way through the Republican Revolution of 1994 (1946 was the other), Republicans got an assist that year in redistricting. Following the 1950 census, Republicans in California and New York engaged in what the legendary congressional scholar David Mayhew described as “ingenious cartographic efforts” in redistricting that contributed to Republicans flipping the House.
More than 7 decades later, redistricting may also prove decisive in the House — potentially helping Republicans hold on to the majority and keeping the long streak of the House not flipping in presidential years alive. Meanwhile, those key states of California and New York again loom large in this cycle’s battle for the House.
With that in mind, Table 1 shows our initial House ratings for the 2024 cycle. A total of 44 seats — 20 currently held by Republicans and 24 held by Democrats — begin in the most competitive categories (Toss-up or Leans). That’s just 10% of the total seats in the House.
In no particular order, let’s go through the highlights:
— Both North Carolina and Ohio are poised to have new congressional maps this cycle. There will be time to go through the contortions and specifics later, but the overall point is this: State Supreme Courts in both states constrained the maps that the GOP wanted to impose in both states last cycle, and conservatives scored victories in key state Supreme Court races in both states last November, which should give the Republicans a freer hand to operate in both states. New GOP gerrymanders could threaten up to 3 Democratic seats in Ohio and 4 in North Carolina — this is why we are starting all of those potential Republican targets in the Toss-up column for now. This reflects the Democratic exposure in these 2 states while also conveying uncertainty about what is actually going to happen. These potential redistricting losses — not all of which are guaranteed to occur — make up the majority of the Democratic Toss-up column.
— There are a number of other unresolved court cases that could impact redistricting, potentially in favor of Democrats in at least some places. CNN’s Ron Brownstein recently had a good summation. At the moment, the only states where the anticipation of future redistricting changes impacts our ratings are, again, North Carolina and Ohio. If and when other legal developments increase the likelihood of new maps in other states, we will adjust our ratings as warranted.
— We are assuming, for the sake of these ratings, that Rep. Elissa Slotkin (D, MI-7), a proven incumbent in a marginal Lansing-based seat, ends up running for U.S. Senate (she is not an announced candidate, but observers on both sides of the aisle expect her to run). So her district starts as a Toss-up; we will move her district to Leans Democratic if she unexpectedly runs for reelection instead. Also starting in the Toss-up category is CA-47 in Southern California, which Rep. Katie Porter (D) is leaving behind as she pursues an open-seat Senate run of her own. The district voted for Joe Biden by 11 points, which suggests that it should not be a Toss-up. But CA-47 is not as blue down the ballot — as Porter’s 3.5-point victory last cycle suggests — and Republicans have scored some surprising successes in similar kinds of districts in California recently. One other wrinkle is the possibility of a strange outcome in the state’s top-2 primary; all candidates run together on the same ballot in the primary, with the top 2 finishers advancing to the general election regardless of party. Although such a scenario has not come to pass in a truly competitive seat since the 2012 cycle, Democrats sometimes worry about 2 Republicans advancing to a general election in a district like this. It may also be the case that Republicans have a competitive presidential primary going on in California at the time of the primary while Democrats do not, which could impact turnout. Democrats already have credible options running to replace Porter, although the departing incumbent is an exceptionally strong fundraiser, which is helpful in a district covered by the expensive Los Angeles media market. So this is all enough for us to start CA-47 as a Toss-up.
— Beyond CA-47, Democrats don’t have much defending to do in California, as their other seats all start as either Safe Democratic or (in a couple of instances) Likely Democratic. On the other side of the aisle, Republicans are defending a trio of incumbents in double-digit Biden seats: Reps. John Duarte (R, CA-13) and David Valadao (R, CA-22) in the Central Valley, and Mike Garcia (R, CA-27) in Southern California. They all start as Toss-ups. Garcia in particular benefited from a weak opponent, former state Assemblywoman Christy Smith (D), in his victories in 2020 and 2022. On Wednesday morning, former Virgin Galactic CEO George Whitesides (D) announced he will challenge Garcia, and some Democrats are optimistic about his candidacy.
— New York, where Republicans enjoyed something of a localized “Red Wave,” features 5 new incumbents who start in the Toss-up column, including the now-infamous Rep. George Santos (R, NY-3), with his tsunami of scandals and bogus resume. If Santos actually advanced to the general election next November, he would be a significant underdog. But perhaps he resigns before then, resetting the table for a special election, or otherwise retires or loses in a primary. In the other key Biden-won seats held by Republicans, Democrats will hope that the presidential tide helps wash away newly-elected Reps. Anthony D’Esposito (R, NY-4), Mike Lawler (R, NY-17), Marc Molinaro (R, NY-19), and Brandon Williams (R, NY-22), although Democratic recruitment will also be vital in these races. D’Esposito, who holds the bluest seat held by any Republican, won the suburban Long Island district directly south of the one that Santos holds, while the others won districts north of New York City.
— If Democrats win back the House, California and New York will likely play a huge role in the outcome — just like they did way back in 1952, the last time the House flipped in a presidential year. But Democrats often worry about these big, blue states because they are “orphan” states — they are uncompetitive at the statewide level for president and Senate, so there’s not a big statewide mobilization effort to drive turnout in competitive congressional districts. House Majority PAC, the heavyweight outside spending group that backs Democratic candidates, announced Wednesday it is planning a dedicated $45 million fund to target New York House seats, a clear acknowledgement of the state’s importance to the Democratic path to the majority as well as the need for Democrats to spend extensively there.
— Out on the West Coast, newly-elected Reps. Marie Gluesenkamp Perez (D, WA-3) and Lori Chavez-DeRemer (R, OR-5) benefited from flawed general election opponents who toppled incumbents in primaries. Both rank among the most vulnerable incumbents for their respective sides.
— Eastern Pennsylvania, the native region of President Joe Biden, is the site of a pair of key, Toss-up defensive assignments for Democrats: Reps. Matt Cartwright (D, PA-8) in the Scranton area and Susan Wild (D, PA-7) in the Lehigh Valley.
— Reps. Mary Peltola (D, AK-AL) and Jared Golden (D, ME-2) hold the 2 most Republican districts held by any Democrat. But their strong local brands, paired with ranked-choice voting systems that Republicans have yet to master, give each an edge to start.
— Rep. Lauren Boebert (R, CO-3), an in-your-face conservative who only barely won in a clearly GOP-leaning district in western Colorado, has not moderated her behavior at all in the aftermath of her near-loss. But observers on both sides of the aisle think she should be favored anyway because a more engaged and larger 2024 presidential electorate could help her stabilize her vote. This is something we sometimes hear from operatives: Near-miss upsets can occur precisely because a race isn’t heavily engaged with national money, perhaps lulling an incumbent (and maybe even voters themselves) into a false sense of security.
— The Democratic seats in Nevada, New Hampshire, Oregon, and Texas that start in the Likely Democratic category are all ones that Republicans competed for to at least some degree in 2022 but failed to capture. They are all districts where President Biden performed better than he did nationally in 2020, and several are probably less attractive targets for Republicans than they were last cycle. That Democrats held onto all 3 of their Nevada seats last year by fairly clear margins (roughly 4-5 points) despite losing the state’s governorship shows the efficacy of the state’s Democratic gerrymander. The Republicans would have to win the state for president by several points just to carry any of those districts, something that seems unlikely in such a closely-divided state. So we view all 3 as clear favorites to start.
— In the respective Leans columns, we gave the benefit of the doubt to a handful of incumbents, including Reps. Don Bacon (R, NE-2) and Tom Kean Jr. (R, NJ-7) on the GOP side and Reps. Yadira Caraveo (D, CO-8) and Gabe Vasquez (D, NM-2) on the Democratic. The former pair will likely have to create some distance between themselves and the GOP presidential nominee in their blue-trending districts, but Bacon has shown the ability to do that and Kean may be able to after knocking off Tom Malinowski (D) last cycle. Caraveo and Vasquez overcame a tricky political environment to each snatch surprising albeit narrow victories. With Democrats likely to carry their districts for president again, we give them an edge to start. We also gave a small edge to first-term Rep. Juan Ciscomani (R, AZ-6), who won an evenly-divided Tucson-area seat last cycle, but not to his fellow Arizona Republican, Rep. David Schweikert (R, AZ-1) in the Phoenix area. Ciscomani’s district is slightly better for Republicans than Schweikert’s, and the latter has seen his performance sag under the weight of redistricting, realignment, and ethics violations. We may be splitting hairs to rate them differently, but we are also in the splitting hairs business.
Sources on both sides of the aisle generally believe that the House playing field is not going to be that large. Part of it is that redistricting slightly reduced the number of truly competitive districts, and the North Carolina and Ohio maps could chip away at that number a little further. But Republicans also probably will not be casting as wide of a net as they did in 2022, as they came up empty in many districts where Biden did better than he did nationally. That includes arguably red-trending but still blue districts like the ones held by Reps. Frank Mrvan (D, IN-1), Henry Cuellar (D, TX-28), and Vicente Gonzalez (D, TX-34). Republicans were hoping that another turn of the realigning wheel in these places after Donald Trump made them more competitive in 2016 and/or 2020 would flip them red in 2022, but that didn’t happen. So Republicans may not push as hard in these districts as they did last time.
Among the Republican advantages this cycle are that the likeliest redistricting changes, in North Carolina and Ohio, should help Republicans to at least some extent.
Among the Democratic advantages are that they have more Biden-district Republicans to target (18) than Republicans have Trump-district Democrats to target (5).
The correlation between presidential and House results has been growing over time, to the point where there is not nearly as much daylight between the results for president and the results for House in an average district as there once was. But there is still daylight, and those differences may ultimately decide the majority.
Our overall ratings show 212 seats rated Safe, Likely, or Leans Republican, 201 rated Safe, Likely, or Leans Democratic, and 22 Toss-ups. Splitting the Toss-ups evenly, 11-11, would result in a net GOP gain of a single seat. Democrats need to net 5 seats to win the majority. Again, we think this is reflective of an overall Toss-up House race to start.
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