After a decade and a half of uncertainty, the Supreme Court in Rucho v. Common Cause (2019) closed the federal courthouse door to claims against partisan gerrymandering. Even if deeply gerrymandered districts to favor one political party over another were unconstitutional, Chief Justice Roberts declared for a conservative Court majority, federal courts were powerless to do anything about it because there were no judicially manageable standards to apply. He suggested that those upset with partisan gerrymandering look to Congress, to state courts applying state constitutions, and to the initiative process. As Justice Elena Kagan pointed out in her Rucho dissent for the liberal Justices, there was a fair bit of irony in the Chief pointing to initiatives as a place to police redistricting, because Roberts was the author of a dissenting opinion in a 5-4 opinion in the 2015 case, Arizona Independent Redistricting Commission v. Arizona Legislature. In that case, the majority held that Arizona voters could use the initiative process to take redistricting power away from the legislature and put it in the hands of a commission. Roberts viewed the voters’ shutting out the legislature in drawing congressional districts as usurping the legislature’s power to set the rules for conducting congressional elections. But the same issue may resurface, with a more conservative Supreme Court majority, as to the power of state courts to apply state constitutions in reining in gerrymandering of congressional districts. We can expect the North Carolina supreme court—and possibility the Pennsylvania Supreme Court—to give close scrutiny to any maps that emerge out of any political process. Both states feature the same political configuration: a Republican-dominated legislature, Democratic-majority state Supreme Court, and Democratic governor. In North Carolina, however, state law allows the state legislature to pass a plan without the governor’s consideration, so it is here where we are most likely to see a partisan gerrymander of political districts emerge out of the political process. (Wisconsin has a similar consideration, except it has a Republican-majority supreme court.) If, as expected, one or more of these state supreme courts rein in partisan gerrymandering of congressional districts by applying state constitutional protections for free and fair elections against the desires of the state legislature, the Article I, section 4 issue will come to the fore again. Known as the “independent state legislature” theory, it has implications far beyond the question of redistricting, as I detail in a new paper, “Identifying and Minimizing the Risk of Election Subversion and Stolen Elections in the Contemporary United States.” But focusing on redistricting, the independent state legislature theory may well enmesh federal courts once again in the question of partisan gerrymandering, albeit it in an orthogonal way. State supreme courts will strike partisan gerrymanders of congressional maps, and Republicans will complain in federal court about state supreme court decisions limiting partisan gerrymandering of congressional districts. They will ask federal courts to hold that state supreme courts exceeded their power. It’s an argument that is going to enmesh federal courts not only back into the question of gerrymandering, but into federalism questions and issues of comity between federal and state courts. The cases will test whether Chief Justice Roberts was serious in Rucho that state courts have the power to rein in partisan gerrymandering on the congressional level, or whether the independent state legislature theory will grow and lead to the overruling of the Arizona case. Whatever happens is sure to be messy and controversial. Stay tuned.
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