By Strider L. Dickson, Esq.
When state legislatures redraw United States congressional districts, the new districts frequently are challenged in state and federal courts. In recent years, litigation over congressional redistricting plans increasingly has involved claims of unconstitutional partisan gerrymandering.1 This article summarizes the legal landscape surrounding these claims and analyzes how that landscape may change after Moore v. Harper,2 a case argued before the U.S. Supreme Court in December 2022.
Every 10 years, U.S. congressional district lines are redrawn after completion of the United States census. Redistricting is necessary to ensure that congressional districts satisfy constitutional requirements, particularly the “one person, one vote” rule that requires congressional districts to be as equal in population as practicable.3
The United States Constitution grants state legislatures the primary responsibility for crafting federal congressional districts. Specifically, the Election Clause provides that “[t]he Times, Places and Manner of holding Elections for . . . Representatives, shall be prescribed in each State by the Legislature thereof.”4
Unfortunately, state legislators sometimes use this power to draw congressional districts in a way that favors one political party over another. This practice, called partisan gerrymandering, is most common in states where one political party controls redistricting.5 Although political gerrymandering is not new,6 modern technology has made it “far more effective and durable than before, insulating politicians against all but the most titanic shifts in the political tides.”7
Courts have recognized that partisan gerrymandering is incompatible with democratic principles.8 Among other things, it threatens “the core principle of republican government” that “voters should choose their representatives, not the other way around,”9 tends to “make some votes more powerful than others” by minimizing political minorities’ chances of electing candidates of their choice or influencing election outcomes,10 and “[a]t its most extreme . . . amounts to rigging elections.”11
The Search for Judicial Standards and Rucho
Because partisan gerrymanders “benefit those who control the political branches,” opponents of the practice have turned to the courts for relief.12 Lawsuits alleging unconstitutional partisan gerrymanders, however, present difficult problems for the judiciary. They require courts to enter a “political thicket.”13 Courts also have struggled to identify neutral principles of law to apply when deciding these cases.
In a series of cases beginning in 1986, the Supreme Court began searching for constitutional standards courts could apply when reviewing claims of partisan gerrymandering.14 In Davis v. Bandemer,15 a majority of the Court concluded that partisan gerrymandering claims were justiciable under the Equal Protection Clause.16 But the Court could not agree on a proper standard to determine when a constitutional violation had occurred.17 By 2018, the Court still had not settled on the legal principle(s) governing partisan gerrymandering cases.18 In Gill v. Whitford,19 a case decided that year, different members of the Court articulated different ways partisan gerrymandering might violate the constitution, but no consensus emerged.20
In 2019, the Supreme Court deemed the search for neutral legal principles hopeless. In Rucho v. Common Cause, 21 the Court held that partisan gerrymandering claims were political questions not justiciable in federal court.22 As the Court explained: “[J]udicial action must be governed by standard, by rule, and must be principled, rational, and based upon reasoned distinctions found in the Constitution or laws. Judicial review of partisan gerrymandering does not meet those basic requirements.”23
But the Court also stated that it neither condoned partisan gerrymandering nor condemned complaints about it “to echo into a void.”24 Among other things, the Court explained that “[p]rovisions in state statutes and state constitutions can provide standards and guidance for state courts to apply.”25 Rucho, therefore, appeared to banish partisan gerrymandering claims from the federal courts, while leaving open the possibility that those claims could be brought in state court.
State Court Political Gerrymandering Litigation After Rucho
Opponents of partisan gerrymandering took up Rucho’s invitation to seek relief in state courts. In 2021, after the most recent round of congressional redistricting, courts in North Carolina,26Maryland,27 New York,28 and Ohio29 found gerrymandered congressional districts unconstitutional. These courts joined the Pennsylvania Supreme Court, which in 2018 struck down the Pennsylvania legislature’s congressional redistricting plan as an unconstitutional partisan gerrymander.30
These courts looked to provisions in their respective state constitutions to supply necessary legal standards and find that political gerrymandering was unlawful. The Pennsylvania Supreme Court based its decision on the Pennsylvania constitution’s requirement that elections “be free and equal”;31 the North Carolina decision relied on a similar “free election” provision in the North Carolina constitution, as well as other provisions in that constitution guaranteeing the rights of assembly, free speech, and equal protection;32 the Maryland decision relied on provisions of the Maryland constitution guaranteeing the rights to free and frequent elections, free speech, and equal protection;33 and the decisions in New York and Ohio found violations of state constitutions that specifically prohibit partisan gerrymandering.34
These courts also expressly rejected arguments, based on Rucho, that partisan gerrymandering claims were not justiciable. They thus recognized that “the very premise of the cases that foreclose federal remedies,” like Rucho, “constitutes a clear call to state courts to step into the breach.”35
Moore and the Independent State Legislature
But not all were happy with state courts increasing their scrutiny of congressional redistricting plans, especially those responsible for the invalidated plans. Seeking relief from a decision they believed to be an unlawful usurpation of the state legislature’s constitution authority to craft congressional districts, the defendants in the North Carolina case—now called Moore v. Harper36—turned to the U.S. Supreme Court.
Because the North Carolina Supreme Court based its decision in Moore on the North Carolina Constitution, the Moore defendants normally would have no recourse in the U.S. Supreme Court. Recognizing the limits of its power in this regard, the Supreme Court explained nearly 80 years ago that “[i]t is fundamental that state courts be left free and unfettered by us in interpreting their state constitutions.”37 The Moore defendants, however, sought to evade this “fundamental” by claiming that the North Carolina Supreme Court’s decision violated the United States Constitution’s Elections Clause.
Specifically, the Moore defendants based their challenge on an aggressive strain of what has become known as the “Independent State Legislature” theory (ISL).38 The ISL, as advanced by the Moore defendants, posits that the plain language of the Elections Clause—“[t]he Times, Places and Manner of holding Elections for . . . Representatives, shall be prescribed in each State by the Legislature thereof”—means that only state legislatures have the authority to create new congressional districts. Thus, a state court cannot review a state legislature’s enactment of congressional districts to ensure compliance with a state constitution because such a review would violate the state legislature’s plenary power under the Elections Clause.39
This version of the ISL has faced widespread public criticism, with some commentators even arguing that it presents an existential threat to democracy in the United States.40 The Court, moreover, appears unlikely to adopt it. Prior precedent does not support it.41 And during oral argument in Moore, most Justices appeared unwilling to revisit those cases or accept the claim that there are no checks on state legislatures in the creation of congressional districts.42
A slightly “watered down” version of the ISL, however, may end up deciding Moore and having significant ramifications for future partisan gerrymandering cases. During oral argument, several Justices seemed drawn to a version of the ISL first set forth in former Chief Justice Rehnquist’s concurrence in Bush v. Gore.43 There, Chief Justice Rehnquist wrote that a state court can violate the Electors Clause found in Article II of the Constitution44 if the court impermissibly distorts state election laws governing presidential elections.45 Thus, state courts can interpret and apply state law governing presidential elections. But federal courts can review those decisions, under a deferential standard, to ensure that a state court decision does not violate the federal constitution by impermissibly distorting state law.46
Chief Justice Rehnquist’s version of the ISL has a direct corollary to challenges to state court reviews of redistricting plans under the Elections Clause.47 As applied in such cases, state courts can evaluate a state legislature’s congressional districting plan to ensure that it complies with state constitutions. But state courts can violate the Elections Clause when they impermissibly distort or significantly depart from established state constitutional law. In other words, state courts violate the Elections Clause when, in the review of congressional districts, they start acting more like a legislature than a court.
If the Supreme Court ultimately adopts this version of the ISL to resolve Moore, state courts will continue to have a role in reviewing state legislatures’ redistricting. In fact, under Rucho, partisan gerrymandering litigation almost certainly will have to begin in state courts. But federal courts will also be back in the partisan gerrymandering game. For if a state court strikes down a state legislature’s congressional districting plan as an unconstitutional partisan gerrymander, the defenders of the plan will turn to the federal courts, surely arguing that the state court decision violated the Elections Clause by impermissibly distorting or significantly departing from state constitutional law.
After Rucho, state courts stepped into the void to stop partisan gerrymandering. And they did so based on provisions in state constitutions. They thus implemented a view of our federal system that “[s]tate constitutions, too, are a font of individual liberties, their protection often extending beyond those required by the Supreme Court’s interpretation of federal law.”48 But after Moore, state courts’ ability to interpret their state constitutions may be subject to federal oversight. Thus, the “fundamental” notion that state courts be left “free and unfettered” in interpreting and applying their state constitutions” may not—at least in partisan gerrymandering case—be so “fundamental” after all. And in ten years’ time, when litigants file claims challenging the next round of congressional district mapmaking, federal courts may be forced to evaluate whether state courts deciding those claims have impermissibly distorted state constitutional law in doing so.
1 This article does not address other ways litigants challenge congressional redistricting plans, including claims of racial gerrymandering; nor does it address claims challenging the drawing of state legislative districts.
2 Moore v. Harper, No. 21-1271 (Oct. Term 2022).
3 Wesberry v. Sanders, 376 U.S. 1, 7–8 (1964).
4 U.S. Const. art. I, § 4, cl. 1. Importantly, the Election Clause also provides that “Congress may at any time by Law make or alter” the laws for selecting U.S. Representatives. In other words, Congress could establish uniform national rules that do away with partisan gerrymandering. It has not.
5 Samuel S.H. Wang, et al., Laboratories of Democracy Reform: State Constitutions and Partisan Gerrymandering, 22 U. Pa. J. Const. L. 203, 208 (2019).
6 Accusations of unfair congressional map drawing have been made since Patrick Henry allegedly attempted to gerrymander James Madison out of the First Congress. Rucho v. Common Cause, 139 S. Ct. 2484, 2494 (2019). And the term “gerrymander” dates back to 1812, when Massachusetts Governor Elbridge Gerry approved an oddly shaped congressional district—one that opponents claimed resembled a salamander—drawn to favor the Democratic-Republican party. Id.
7 Rucho, 139 S. Ct. at 2512–13 (Kagan, J., dissenting).
8 E.g., Ariz. State Legis. v. Ariz. Indep. Redistricting Comm’n, 576 U.S. 787, 791 (2015).
9 Id. at 824.
10 Harper v. Hall, 868 S.E.2d 499, 508 (N.C. 2022).
11 Gill v. Whitford, 138 S. Ct. 196, 1940 (2018) (Kagan, J., concurring).
12 Id. at 1934–35; see also Wang, et al., supra, at 208.
13 Colegrove v. Green, 328 U.S. 549, 556 (1946).
14 The cases included Davis v. Bandemer, 478 U.S. 109 (1986); and Gill v. Whitford. The Court has never found a state’s congressional districting plan unconstitutional
based on a claim of political gerrymandering.
15 478 U.S. 109 (1986).
16 Id. at 143.
17 Id. at 185 n.25 (Powell, J., dissenting).
18 Between 1986 and 2018 the Court heard two cases concerning partisan gerrymandering: Vieth v. Jubelirer, 541 U.S. 267 (2004); LULAC v. Perry, 548 U.S. 399 (2006).
The Court could not agree on judicially manageable standards to govern gerrymandering claims in either case.
19 138 S. Ct. 1916 (2018).
20 See id. at 1929–33; see also id. at 1935–40 (Kagan, J. concurring); Wang, et al., supra, at 218–25.
21 139 S. Ct. 2484 (2019).
22 Rucho, 139 S. Ct. at 2506–07. Rucho thus echoed Colegrove v. Green, 328 U.S. 549 (1946), where Justice Frankfurter, for a plurality of Court, wrote that gerrymandering
claims were “of a peculiarly political nature and therefore not meet for judicial determination.” Id. at 552.
23 Rucho, 139 S. Ct. at 2507 (internal quotation marks and citation omitted).
24 Rucho, 139 S. Ct. at 2507.
25 Rucho, 139 S. Ct. at 2507.
26 Harper v. Hall, 868 S.E.2d 499, 510 (N.C. 2022).
27 Szeliga v. Lamone, 2022 Md. Cir. Ct. LEXIS 9, at *126 (Mar. 25, 2022).
28 Matter of Harkenrider v. Hochul, 197 N.E.3d 437, 454 (N.Y. 2022).
29 League of Women Voters of Ohio v. State Redistricting Comm’n, 2022-Ohio-1235, 1–2 (Apr. 14, 2022).
30 League of Women Voters v. Commonwealth, 178 A.3d 737, 740 (2018).
31 Id. at 741.
32 Hall, 868 S.E.2d at 510–11.
33 Szeliga, 2022 Md. Cir. Ct. LEXIS 9, at *124–*125.
34 Matter of Harkenrider v. Hochul, 197 N.E.3d 437, 454 (applying N.Y. Const. art. III, § 4(c)(5)); League of Women
Voters of Ohio, 2022-Ohio-1235, at 1-2 (applying Oh. Const. art. XI, § 6).
35 William J. Brennan, State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev. 489, 503 (1977).
36 Moore v. Harper, No. 21-1271 (Oct. Term 2022).
37 Minnesota v. National Tea Co., 309 U.S. 551, 557 (1940)
38 There are various stains and applications of the ISL. See generally Michael T. Morley, The Independent State Legislature Doctrine, 90 Fordham L. Rev. 501 (2021).
39 See generally Petitioner Merits brief in Moore v. Harper, available at https://www.supremecourt.gov/ DocketPDF/21/21-1271/236562/20220829124545799_21-1271%20Brief%20for%20Petitioners.pdf.
40 See, e.g., Erwin Chemerinsky, Op-Ed: The Ominous Way the Supreme Court Could Change Our Elections, L.A. Times, Dec. 7, 2022, available at https://www.latimes.com/opinion/story/2022-12-07/supreme-court-elections.
41 See, e.g., Ohio ex rel. Davis v. Hildebrant, 241 U.S. 565, 568-69 (1916) (holding that citizens may reject a state legislature’s congressional districting plan through a referendum authorized by the state constitution); Smiley v. Holm, 285 U.S. 355, 375 (1932) (holding that Minnesota’s governor could exercise his state constitutional authority to veto the legislature’s congressional-districting plan); Ariz. State Legis., 576 U.S. at 817-18 (“Nothing in the [Elections] Clause instructs that a state legislature may prescribe regulations on the time, place, and manner of holding federal elections in defiance of provisions of the State’s constitution.”).
42 A transcript of the oral argument is available at https://www.supremecourt.gov/oral_arguments/argument_transcripts/2022/21-1271_5i26.pdf (hereafter “Tr. of Oral Argument”).
43 Bush v. Gore, 531 U.S. 98 (2000). 44 The Article II Electors Clause provides: “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.” U.S. Const. art. II, § 1, cl. 2. 45 Bush, 531 U.S. 98 at 112–15 (Rehnquist, C.J., concurring). 46 See id. 47 See, e.g., Tr. of Oral Argument at 105.
48 Brennan, supra, at 491.