Election Law Blog Essay

The Next Threat to Redistricting Reform

These are perilous times even for those who think that federal courts have no business messing with how state legislatures draw lines for legislative and congressional districts and that the issue is best left up to each state’s political system. Now that Justice Anthony Kennedy has left the stage, it is unlikely that the Court will stop extreme partisan gerrymandering. But the Court may do more than simply fail to intervene. Within a few years, the Supreme Court may well hold unconstitutional state political processes that have produced measurably better redistricting reform for the drawing of congressional districts.

For many years, I have been one of the rare election law professors who has been skeptical of having federal courts intervene to police partisan gerrymandering. I have worried that there was no social consensus that federal courts should get involved and that there were inadequate standards to separate permissible from impermissible consideration of party in redistricting.

In recent years, my view has evolved. It is not that I embraced the efficiency gap as the holy grail for deciding which redistricting plans flunk the constitutional test. And it is not that the First Amendment provides more judicially manageable standards than the Equal Protection Clause, as Justice Elena Kagan argued in a final unsuccessful play for Justice Anthony Kennedy’s vote in last term’s Gill v. Whitford case.

Rather, my mind is beginning to change for two reasons. First, new technology has allowed gerrymanderers to draw lines that can consistently give one party asymmetric advantage over the other for a full decade. Second, whatever norms may have limited gerrymanderers from seeking maximum party advantage have eroded. In North Carolina, state representative David Lewis explained why, in a state about evenly divided between Democrats and Republicans, he proposed lines giving partisan advantage to 10 Republicans and three Democrats: he did “not believe it [would be] possible to draw a map with 11 Republicans and two Democrats.”

The North Carolina case, Rucho v. Common Cause, is back for a return engagement before the Supreme Court. There is every reason to believe that the Court will take the case up on mandatory appellate review and that new Justice Brett Kavanaugh will join the Court’s four other conservatives to hold that partisan gerrymandering claims are non-justiciable. Such a holding will embolden partisan legislators who control the redistricting process to push things about as far as they can without fear of federal court intervention.

If that were all that the Court might do, it would be bad enough. But for those who think that the partisan gerrymandering issue is best left to the states, where state courts applying state constitutions and (in some states) the initiative process can be used to rein in excessive gerrymanders, the Court could well do a whole lot more damage.

As Josh Douglas noted recently on this blog, “this November voters in four states—Colorado, Michigan, Missouri, and Utah— can ameliorate the problem [of partisan gerrymandering] by enacting independent redistricting commissions” and “take the process of redistricting away from elected politicians.”

It is easy to imagine a scenario where the state of Michigan, for example, passes redistricting reform establishing a commission, and Republicans in the Michigan legislature challenge the initiative in federal court arguing that the Constitution’s Article I gives only the state legislature and not the people acting through the initiative process the right to pick the rules for congressional elections (subject to congressional override).

If that argument sounds familiar, it is the same one that the Supreme Court rejected on a 5-4 vote in the 2015 case, Arizona State Legislature v. Arizona Independent Redistricting Commission. There, Justice Ginsburg, joined by the Court’s liberals and Justice Kennedy, relied upon earlier precedent in concluding that the use of the term “legislature” in this part of Article I included not just the legislative body but the state’s legislative process, including the people acting through the initiative process, who can establish an independent commission.

Chief Justice Roberts wrote a blistering dissent for the four conservative Justices arguing that only state legislatures can set the rules for drawing district lines. This view would spell the end of independent commissions, since state legislatures are extremely unlikely to set up fully independent redistricting commissions. If Justice Kavanaugh agrees with the Roberts view in this case—and given the issue’s ideological valence and the newest Justice’s commitments to originalism and textualism, I expect he will—the only thing standing between a ruling that would kill the use of redistricting commissions enacted by initiative for congressional line-drawing is an appeal (as Professor Douglas makes) for Justice Kavanaugh to respect the Arizona precedent. But this is a new and contested precedent, and if Chief Justice Roberts pushes for reconsideration you can bet that the other conservative Justices will go along.

Early research shows that while redistricting commissions are not perfect, they tend to draw more competitive lines and avoid the creation of extreme gerrymanders, showing much less partisan bias. But if the Court overrules Arizona, this option will be off the table.

The Court might do more than simply bar the creation of redistricting commissions via initiative. It could stifle the use of state constitutional law to rein in partisan gerrymandering. This past year, the Pennsylvania Supreme Court struck down a partisan gerrymander of that state’s congressional districts using the Pennsylvania state constitution. Republican legislators supporting the old gerrymander argued that the state Supreme Court violated Article I of the federal Constitution because only the state legislature, not the state courts, gets to set the rules for drawing congressional districts. After a long wait, the Supreme Court rejected the legislators’ argument without explanation.

Now, even if the Court overturns Arizona and strikes down independent election commissions adopted by voter initiative, it’s another big step to say that a state legislature can make election rules under its Article I powers even when they violate the state’s constitution as interpreted by state courts. But, as I explained in an earlier HLR Blog post, the three most conservative members of the Supreme Court embraced a parallel theory in the Bush v. Gore case ending the recount of presidential votes in Florida and handing the 2000 election to George W. Bush. And the argument will move from off the wall to on the wall if the Court overturns Arizona. If the Court eventually adopts that view, not even state constitutions can stop partisan gerrymandering of congressional districts.  

In short, just when you think things are bad with election reform, they stand to get a whole lot worse.