Last week’s decision by the highest state court in New York invalidating congressional districts drawn by the Democrat-controlled legislature, on the ground that the legislature ran afoul of recently adopted state constitutional provisions prohibiting excessive partisan gerrymandering, is the latest in a series of such cases by state high courts rebuffing the congressional district lines drawn by legislatures in their respective states. Rulings in February and March by the high courts of Pennsylvania and North Carolina rejecting partisan gerrymandering efforts by Republican-led legislatures in those states, along with a ruling by a lower court judge in Maryland invalidating the work-product of the Democratic legislature there, suggest a dynamic landscape of judicial oversight, undertaken in the name of state constitutions, in this area. These recent developments both illuminate and obscure important features of the national picture that has been emerging.
What can we learn from this spate of rulings? First, all these cases involve pursuit of the invitation/authorization extended by the U.S. Supreme Court in its 2019 Rucho v. Common Cause ruling, where the Court, after deciding that the U.S. Constitution does not afford any basis for federal courts to police state legislatures in this regard, said quite explicitly:
“[We do] not condone excessive partisan gerrymandering. Nor does our conclusion [to limit the federal judicial role in controversies over congressional gerrymandering] condemn complaints about districting to echo into a void. The States . . . are actively addressing the issue on a number of fronts. In 2015, the Supreme Court of Florida struck down that State’s congressional districting plan as a violation of the Fair Districts Amendment to the Florida Constitution. League of Women Voters of Florida v. Detzner, 172 So. 3d 363 (2015). . . [And] in November 2018, voters in Colorado and Michigan approved constitutional amendments creating multimember commissions that will be responsible in whole or in part for creating and approving district maps for congressional and state legislative districts. See Colo. Const., Art. V, §§44, 46; Mich. Const., Art. IV, §6.”
Note that this passage expressly mentioned that Michigan’s and Colorado’s constitutional provisions applied not just to state legislative districting, but also to congressional districting under Article I of the U.S. Constitution. Note also that this key passage expressly endorsed both the right of the Florida constitution to constrain the Florida legislature as to congressional districting, and the right of the Florida Supreme Court to interpret and implement that state constitution—even to the point of invalidating a congressional districting enactment of the Florida state legislature. All of this flies directly in the face of the so-called Independent-State-Legislature theory getting a lot of press these days, an untenable notion under which state legislatures are, because Articles I and II of the U.S. Constitution refer to them in particular in describing federal election regulation by the states, immune from oversight by state courts enforcing state constitutions.
Second, the recent judicial decisions illustrate that even though states have the power to create and enforce their own state constitutional limits on state legislatures (even in congressional elections), the job state courts are being given here is not a simple one. Chief Justice Roberts, in explaining in Rucho why state but not federal courts could have a role in this realm, observed that in contrast to the federal Constitution’s lack of relevant direction to federal courts, “[p]rovisions in state statutes and state constitutions can provide standards and guidance for state courts to apply.” But that doesn’t mean that the “provisions” and “standards” and “guidance” will always be easy to discern and implement. It is one thing when a political party that seems to enjoy less-than-majority support statewide (as suggested by recent losses in statewide gubernatorial, U.S. senatorial and presidential elections) nonetheless is able, through gerrymandering, to maintain a consistent and enduring majority in the state’s legislative chambers. That situation—when a political minority consistently usurps a majoritarian legislative position—violates a basic norm embodied even in the U.S. Constitution in the so-called Republican Guarantee Clause. But when a party that has the support of, say, 55% of the state’s electorate uses its current control of the legislature to create a 60%-65% majority in the legislature’s future seats, it is much harder for a court to identify the impermissible line that has been crossed, given that observers and analysts seem to concede that district drawing has always been political/partisan to some extent, and that this historical reality has not seemed democratically offensive in and of itself.
It bears repeating here, though, that these difficulties—in crafting and interpreting state constitutional provisions and in translating state constitutional values into enforceable state constitutional doctrine that state courts can use to decide and explain specific cases—are matters of state law for state jurists to work out in the coming years.
A third aspect of the larger picture that the New York ruling and others in recent weeks help bring into relief is that both parties engage in partisan gerrymandering. It might be that one party is more ruthless and aggressive at particular points in time and in particular parts of the country, but neither party abstains from the practice when it is given a chance to enhance its position in the state legislature or in Congress. Nor should we expect either party to voluntarily cease and desist from ambitious partisan gerrymandering; to do so, in congressional districting for example, would amount to a form of unilateral disarmament. If one party is increasing its voice and numbers in the House of Representatives via partisan gerrymandering in states where it controls the state legislature, certainly the other party would be only rational to do so to keep up as best it can.
A related point is that the states that have, through their courts and their constitutions, tried to rein in the partisan excess of their state legislatures fall on both sides of the aisle. For example, Florida is a Red state that has enacted reforms, and New York is a Blue state that has done so. And it is a credit to the state courts in both states that they are trying to implement these reforms in a non-partisan way.
So much for the illumination. Now for the obfuscation. One might look at all of these states and cases and actions and reactions on both sides of the aisle and think that the bottom line of all of this is not likely to affect the nation’s precarious partisan balance. But in my view, one would be wrong to think so. The big reason for this is that Republicans across the country appear to have an easier time, practically speaking, in accomplishing aggressive gerrymandering, perhaps because Democratic voters may already be more concentrated than are Republicans in certain geographic areas. Gerrymandering involves so-called “packing” and “cracking” (that is, the practices by which Party A—the one that controls the legislature—concentrates Party B’s voters into a small number of districts that Party B would then win handily, spreading the rest of Party B’s voters around the state somewhat thinly, leaving the large majority of districts ones in which Party A enjoys a significant though not overwhelming numerical edge, and thus the likelihood of big election successes across the state). The reality in many parts of the country seems to be, especially when we are talking about state legislative districts (which are smaller in geographical size and population than congressional districts), that the Democratic Party’s voters are already more “packed” because of choices about where Democrats live. This is true even in states that may be, in general, trending more Blue in their statewide partisan orientation than they used to be (such as Arizona and Georgia). If a party is more “packed” to begin with, it is easier for the other party, when it has had control of the state legislature, to accomplish larger and more durable majorities in the state legislature over time.
So, for example, it is quite interesting, and likely not entirely coincidental, that there are seven states whose statewide electorates voted for Joe Biden in 2020 but whose state senates have a majority of Republicans: Arizona, Georgia, Michigan, Minnesota, New Hampshire, Pennsylvania, and Wisconsin. And there are zero states that voted for Donald Trump in 2020 whose state senates have a majority of Democrats. Seven to zero is pretty stark, even with the relatively small sample size. The picture is the same for state lower houses (sometimes called state assemblies, state houses of representatives, etc.) except that the Minnesota lower legislative chamber, like its statewide electorate in the last presidential election, is Blue. So the tally there is six to zero.
By contrast, for elected offices that cannot be gerrymandered because they are filled via statewide elections (U.S. senators and governors), things look very different, and much more evenly balanced between the parties. There are three states that voted for Biden that have a Republican U.S. senator (Maine, Pennsylvania, and Wisconsin), and exactly three states that voted for Trump that have a Democratic U.S. Senator (Montana, Ohio, and West Virginia.) With respect to governors, there are seven states Biden carried that have Republican governors and four states Trump carried that have Democratic governors—nothing like the completely lopsided pattern we see with regard to state legislatures.
It’s no wonder, then, that it is Republicans who are pushing the constitutionally bogus Independent-State-Legislature theory, especially as it relates to Article II and presidential election. (For the record, I wrote about and tried to debunk that theory way back in 1999 in a law review article published in early 2020, well before Bush v. Gore and any of the current partisan characteristics of the country were remotely predictable.)
