Redistricting Update: The Problem Lurking Behind the Recent Redistricting Cases in NC, PA, and AL.
March 9, 2022
Redistricting so far has been a minor success for Democrats. On the basis of redistricting alone, Democrats could pick up as many as five seats. The main reason for this has to do with the population shift within states, with population declining in rural areas and shifting to or growing in suburban and urban areas. The Constitution’s equal protection clause requires equitably balancing districts so that no person’s vote is unreasonably diluted. Legislatures in states like Ohio and North Carolina ignored this principle and crafted maps that gave a disproportionate power to Republicans by cracking - or splitting up - Democratic areas to diffuse them among Republican districts while packing Democratic voters in other areas into just three districts likely to elect Democrats. Illinois and New York Democrats created similar such maps, although the New York map is much more reasonable than reports claim.
Earlier this week the US Supreme Court refused to stay state supreme court orders in Pennsylvania and North Carolina that re-write heavily gerrymandered maps in those states. Last month the Court did stay a federal district court decision throwing out Alabama’s map that packed most Black voters into one district while cracking the rest among several others, even though the state could easily draw two districts that gave Black voters a chance at electing a representative of their own choosing. The Alabama case is continuing through the appellate process, but whatever the outcome the map created by the state legislature will be the one used in 2022.
What is going on here? The answer lies in both Justice Alito’s dissent and Justice Kavanaugh’s concurrence in the North Carolina case. But before we get to that we should understand what the legal principle is that the Court is applying so that it will not hear any of these cases.
It is settled in election law cases that federal and state courts should not intervene and change any rules too close to an election. The principle was used several times after the 2020 election to dismiss what were bad faith challenges to state election laws. In those cases, the petitioners had plenty of time before the election to challenge things like absentee ballot rules (PA), the counting of ballots in certain counties (WI), and a consent decree dealing with rules for challenging votes (GA), but they failed to do so. In fact, in all of these cases Trump supporters waited until after they lost the election to complain about the rules and then expected the courts to throw out millions of ballots and change the result.
Voters have a right to expect that the election rules are in place before an election and that these rules will not be changed afterwards to alter the results. This is sometimes referred to as the Purcell Principle. Kavanaugh has been consistent in his application of this principle throughout the election law cases in 2020 and the redistricting cases in 2022. However, he has played loose and fast with whether there really is time to make a decision without disrupting upcoming elections. In the election law cases, the election had either already occurred or was in the process of happening (during the period of early voting). In the redistricting cases, the question is how close to an election is too close. You’ll never pin down Kavanaugh on a bright line rule, but several months out from a Spring primary seems to be too close for him. The Alabama case tells us this. Not only was there time to intervene (the primary election there is in late May with a run-off in late June, although absentee voting begins in about three weeks), but the case was delayed by the Republicans who were petitioning the Court to stay the implementation of new maps.
None of these redistricting decisions are on the merit, and if you read Kavanaugh and Alito closely you’ll see they are signaling to Republicans to come back and complain after the election and they’ll likely get the results they are looking for. The Court had no choice but to let the North Carolina and Pennsylvania supreme court decisions stand because of how it dealt with the Alabama federal court decision. If Purcell principle is applicable in the Alabama case, then it has to be applicable in the other state cases as well since they came later in time (and thus closer to the election).
What’s at issue here is an ahistorical legal argument usually referred to the “independent legislature” theory. It refers to the Elections Clause of the Constitution in which election rules are to be set “in each state by the Legislature thereof,” which has been generally held for at least 100 years (if not more) to mean that the legislature could delegate authority and any rules were subject to meeting state and federal constitutional requirements. This argument in favor of the “independent legislature” theory asserts that only the state legislature may make any election rules in federal elections, and it cannot delegate to other branches or agencies. In fact, no other body by the state legislature can even weigh in under this theory. This is the argument that Trump supporters tried to make to overturn the consent decree in Georgia (claiming the Secretary of State cannot change rules, even if the state constitution allows it). The argument did not work there, but the case was dismissed as having been filed too late and not on the merits.
The “independent legislature” theory has exactly one reference in a previous Supreme Court decision: Bush v. Gore.1 You may recall that the majority in that case wrote into the opinion that this decision was unique and had no precedential value, something later courts have referenced when dismissing arguments that cite the decision. Alito, however, references Bush v. Gore for support for this principle which he claims to be persuasive. In the redistricting cases, the application of this theory would mean that both federal and state courts interpreting valid state constitutional provisions could not overturn a state redistricting law even if it were obviously illegal.
The ramifications of this are concerning. A favorable decision for this theory would mean that state legislatures — and only state legislatures — could make rules regarding federal elections. And it would mean that state legislatures could create any kind of redistricting maps they want with no judicial oversight to ensure the maps do not violate federal or state laws or constitutions. This would likely make not only the Voting Rights Act, but the one-person, one-vote principle unenforceable.
This will be on the 2023 Court docket. You can guarantee that Republicans will once again petition the Court to throw out the court-mandated maps in Pennsylvania and North Carolina in plenty of time ahead of the 2024 election.
You won’t find the term “independent legislature” in the decision, but the concept is used by the Court in its opinion.