State lawmakers may soon have virtually unfettered power to draw congressional district lines. If this happens, it could undermine the democratic process and upend a century’s worth of case law. And it will only happen with the deeply hypocritical blessing of the Supreme Court’s conservative wing.
State lawmakers may soon have virtually unfettered power to draw congressional district lines.
District lines help determine the political balance of power in a state. Partisan gerrymandering is a process in which members of a political party draw districts to maximize their chances of winning congressional seats, either by packing rival voters into just a few districts or cracking them into several districts, diluting their strength so they can never garner a majority. Consider the congressional maps in North Carolina. While voter registration is roughly divided among Republicans, Democrats and unaffiliated voters in the state, Republicans drew a congressional voting map in which they were likely to win 70 percent of seats.
This week the Supreme Court declined requests by Republican lawmakers in Pennsylvania and North Carolina to reinstate their chosen congressional maps. The lawmakers argued that their districts, which were replaced by maps drawn by state court judges, should be used for the 2022 elections. In North Carolina’s case, the Republican-backed maps were tossed out as an illegal partisan gerrymander. In Pennsylvania, the state’s Republican lawmakers and the Democrat governor deadlocked over congressional district maps, and the state supreme court stepped in and adopted a different plan.
The court’s decision is good news for Democrats in the short-term, and perhaps only the short-term.
This pessimism is based on the fact that four of the nine justices on the Supreme Court signaled that they are at least open to the baseless theory argued by the Republican lawmakers in Pennsylvania and North Carolina. Justice Brett Kavanaugh, in a separate concurring opinion, and Justice Samuel Alito in a dissent joined by Justices Clarence Thomas and Neil Gorsuch indicated that they might support this “independent state legislature” doctrine.
At its basic level, the independent state legislature theory would allow state lawmakers, and only state lawmakers, to draw congressional district lines. It would deny state courts a role in protecting voting rights concerning federal elections.
The independent state legislature theory comes from a misreading of the Constitution’s Elections Clause, which provides that: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.” Those supporting the theory argue that “Legislature” in this context can mean only lawmakers, not state court judges or governors.
This theory has some initial appeal, but that appeal is belied by case precedent dating to 1916, as well as history and legal reality. In rejecting this theory a few months ago, the North Carolina Supreme Court correctly concluded that it was “repugnant to the sovereignty of states, the authority of state constitutions, and the independence of state courts, and would produce absurd and dangerous consequences.” Furthermore the North Carolina Supreme Court pointed out that the theory is inconsistent with about 100 years’ worth of case precedent.
Speaking of case precedent, in 2015, Justice Ruth Bader Ginsburg, writing for the majority, concluded that Arizona voters had the power to create an independent redistricting commission that would draw district lines in that state. In doing so, the court explicitly rejected the idea that the Elections Clause provided state legislatures with unfettered authority over federal elections. And in a decision that is perhaps even more compromising for those supporting this doctrine, in 2019, the Supreme Court reaffirmed this interpretation of precedent. Chief Justice John Roberts, writing for the majority, said that state courts applying state law could protect voters from partisan gerrymanders. Thomas, Alito, Gorsuch and Kavanaugh all joined Roberts’ opinion confirming that even if federal courts couldn’t correct partisan gerrymanders, state courts would continue to protect us. In a decision that is perhaps even more compromising for those supporting this doctrine, as recently as 2019, the Supreme Court reaffirmed this interpretation of precedent. You read that right. Three of the justices — Alito, Gorsuch and Thomas — who joined Roberts are three of the four who have now strongly signaled that, “LOL JK,” maybe state courts also have no role to play here. (Kavanaugh was not on the court in 2019.) At least for Alito, the hypocrisy of his decision this week doesn’t end with an apparent flip-flop on the role of state courts in federal elections. Alito recently concluded that there was no time to redraw district lines before a May 24 election in Alabama. Then this week he argued that there was plenty of time to redraw district lines before a May 17 election in North Carolina. Alabama’s district lines may violate the Voting Rights Act, but in favor of Republicans. North Carolina’s district lines favor Democrats. And ultimately, it takes only four members of the Supreme Court to vote to hear a case. It isn’t hard to count four who are eager to explore this debunked theory. If either Roberts or Justice Amy Coney Barrett joins their peers, the court could signal a new open season on gerrymandering across America.
Jessica Levinson is a Loyola Law School professor and MSNBC columnist. 
