Supreme Court Inches Towards Deciding Whether State Legislatures Can Draw Congressional Districts Largely Free of Court Oversight

Yves here. While you have been busy obsessing over Ukraine, or going on a media holiday to get away from it, the Supreme Court may issue a ruling that weakens oversight of Congressional redistricting.

By Henry L. Chambers Jr., Professor of Law, University of Richmond. Originally published at The Conversation

To what extent can state or federal courts limit how state legislatures draw congressional districts?

It is a substantial question with huge implications for future elections and voting rights in America. But the Supreme Court has decided not to answer it – for now, at least. But on March 7, 2022, justices suggested that the question will be answered sooner rather than later, perhaps even before the 2024 presidential election.

In two orders, the justices refused requests from Republicans in Pennsylvania and North Carolina to block court-approved congressional maps to replace ones designed by Republican-led legislatures in both states.

The decisions are consistent with the court’s February order that halted a court injunction seeking to bar Alabama from using a congressional map that critics say disadvantages Black voters.

That order benefited Alabama Republicans. The ones that came down on March 7 will likely help Democrats in North Carolina and Pennsylvania. But all the orders were based on the same principle: America is too close to the 2022 elections for federal courts to demand legislatures redraw congressional maps to be used in those elections.

Justice Brett M. Kavanaugh said as much in his written concurrence in the North Carolina case: “It is too late for the federal courts to order that the district lines be changed for the 2022 primary and general elections, just as it was too late for the federal courts to do so in the Alabama redistricting case last month.”

But perhaps of more significance, he, along with the three dissenting justices – Clarence Thomas, Samuel Alito and Neil Gorsuch – suggested that the question of how closely courts can regulate how state legislatures draw congressional maps was one that would return.

“The issue is almost certain to keep arising until the court definitively resolves it,” wrote Kavanaugh. “We will have to resolve this question sooner or later, and the sooner we do so, the better,” added the trio of dissenting justices in the separate opinion.

Independent State Legislature Doctrine

The court is clearly inching toward a showdown over what is known as the “independent state legislature doctrine.”

This is a legal theory in vogue largely among conservative circlesthat holds that state legislatures have an independent right to draw congressional districts free of much court oversight. The theory is based on the Constitution’s grant of authority to state legislatures to determine “the times, places and manner” of holding elections.

The independent state legislature doctrine is controversial, and may be inconsistent with Chief Justice John Roberts’s 2019 opinion in Rucho v Common Cause. In that case, which also centered on a congressional map in North Carolina, Roberts argued that partisan gerrymandering presented political questions that go beyond the reach of federal courts. He suggested states could address the issue through legislation that could then be enforced by courts.

However, a particularly legislature friendly version of the independent state legislature doctrine could limit how courts could curb partisan gerrymandering in congressional elections – and that will be of great concern to voters’ rights advocates.

It now seems only a matter of time before the Supreme Court addresses the theory. Four of the nine justices must agree to hear a case for one to be taken up. The opinions on March 7, 2022, suggest the court has the numbers.

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  1. marym

    Thank you for this post. As discussed in the linked Fordham document, the independent state legislature doctrine can also be applied to the selection of presidential electors, and to establishing other rules related to voting rights.

    It was used in Bush v Gore and in an attempted Trump 2020 objection to counting ballots received after an extended deadline.

    Congress can pass gerrymandering and voter protection laws that would take precedence, but we’ve seen how much Democrats don’t care about doing that.

    1. Michael Ismoe

      Congress can pass gerrymandering and voter protection laws that would take precedence, but we’ve seen how much Democrats don’t care about doing that.

      Not if they rule that “independent legislature doctine” is valid. We are having this issue in AZ right now. There are 16 state senators who basically control every facet of the state. They overrule voter initiatives, over-ride county laws they don’t like and they set the voting rules. ALEC has used AZ as a lab for decades.

      1. marym

        You may be right. I have no legal qualifications. My selection of opinion purveyors no doubt reflects my own bias. Here’s one discussing the types of restrictions the doctrine would enable, and also the rationale for Congress to pass legislation that would override state laws for federal elections. These type of opinions sometimes drift into a notion that strong protections at the federal level would also deter more restrictive state rules – because it would be complicated to maintain separate sets of rules – but I can’t imagine that’s a given for politicians/donors determined to make things more complicated and thus more restrictive.

  2. Robert Hahl

    Just a little reality check: All ten Virginia Congressmen were elected at-large in 1932, meaning that there were no congressional districts at all. A friend who knows everything about U.S. elections once told me that this happened because a black man was poised to win a seat, and this change was made to defeat him. By 1934 the danger had passed, so Virginia went back to its traditional district boundaries.

  3. Matthew G. Saroff

    This is yet another bogus legal opinion in line with the Unitary Theory of the Executive, which states (in reality), “A Republican President can do whatever he wants.”

  4. Dave in Austin

    For the stability of the US political system I’ve been afraid of this issue for decades.

    Gerrymandering goes back a long way but it was controlled to some degree by the lack of computers able to microanalize the electorate. In the 30s, 40s and 50s the Congressional districts were largely compact because the legislator was assumed to have a duty to know and communicate with the electorate.

    The big change came after the 1970 census when the Supreme Court mandated that the new districts in the south and to some degree in the urban northeast be based on racial Gerrymandering. You heard me correctly; this is another problem caused by the Supreme Court. They were trying to achieve a laudable goal- increasing the number of Black Congressmen and women- and inadvertently creating a mini-disaster.

    The Court appears to have been clueless about the side effects although every alderman and politician understood. It ended the Democratic majority in the House because in the south it led to the extinction of the White, “Yellow Dog” Democratic Congressman who depended on blue collar White and Black votes. (See the entertaining Wikipedia article on Yellow Dog Democrats). In their place we got Republicans and Black Democratic Congressman. There is only one White Democratic Congressman left in the entire south. The Courts invented the Republican Southern Strategy.

    And now we get the logical fulfillment of the Supreme Court’s hypocrisy. All “Gerry” district maps are bad and should be overturned by the Courts… except, of course, the ones that produce the 40 Black Congressional districts, more than half of which exist only because of Gerrymandering. Look at the new Illinois map to see how Democrats do the Gerry-dance without a murmer from the Courts.

    So in trying to pick and choose which “right thinking” agents should draw the maps (will it be the Courts, the Legislature or the Governors?), the Court may lead some outraged state legislature to simply say to the Supremes “F… You” and just go with “State wide elections- no districts”; in other words “Winner take all” and no Black districts.

    And if the Court rejects that plan using one of the usual, creative 300 page opinions, exactly how will the Courts or Federal Government enforce it? The state official can simply refuse to adequately fund and administer the process- no poll watchers showing up; no printed ballots being delivered; no new voter registration cards telling people which district they are in; no primaries that correspond to the Court ordered districts; no local traffic cops at the polls… and in the worst case, people walking around with guns on election day.

    So we could wind up with a “No Representatives in Congress for the State of X” situation, a hung or not-very-legitimate Congressional majority based on fewer than 465 legislators, and a long, slow-motion electoral crisis with all the unpredictable consequences which might follow.

    This may seem like a truly radical and unlikely possibility. But I’ve read the details about what happened in 1876 with Hays-Tilden and the deal that ended it. And I grew up in Rhode Island, which at one point in the 1930s had an armed face-off on the subject of reapportionment. My father’s cousin was on the winning side; he went from being a minor Pawtucket, RI pol to being the Chief Justice of the Supreme Court of Rhode Island as part of the outcome.

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