Now that elections have been held in all 50 states under new district boundaries drawn following the 2020 census, this would usually be the point in the redistricting cycle where things slowly begin to wind down. But a pair of U.S. Supreme Court cases that will be decided within the next few months may produce a flurry of mid-decade redistricting and litigation not seen since the “one person, one vote” revolution of the 1960s. The outcomes will determine the future of the law in two key areas: the protections against racial vote dilution found in Section 2 of the Voting Rights Act of 1965 (VRA) and the ability of citizens to challenge egregious instances of partisan gerrymandering in their own state courts.
First on deck is Merrill v. Milligan, argued back in October, where the justices will decide whether the VRA requires the state of Alabama to draw a second majority-Black U.S. House district. Applying the well-worn totality of circumstances test established by the Court in Thornburg v. Gingles, the lower court concluded that the state’s African American community was sufficiently large (27% of the population) and geographically compact to justify the drawing of a second district.
In the process, the lower court struck down the GOP state Legislature’s map that had made just one of the seven districts (14%) majority-Black, while dispersing the remaining Black populations between several other districts.
Under Gingles, if a second district may be “reasonably configured” within the electoral landscape and racially polarized voting patterns prevent Black candidates from successfully competing in majority-white districts, then the state is under a legal obligation to draw it.
At oral argument, Justice Elena Kagan described this straightforward reading of the law as “kind of a slam dunk.” As the respondents pointed out in their brief, no Black candidate has been elected to Congress from a majority-white district in Alabama since the end of Reconstruction.
However, the Court’s conservative justices appear poised to revisit the Gingles standard and uphold the Alabama plan, a move that will significantly undermine the decades of progress that the VRA has produced in expanding minority officeholding. But exactly how the Court reaches this result, which appeared inevitable once the conservative justices allowed the challenged plan to be used for the 2022 elections, matters a great deal.
Alabama’s preferred approach would turn the entire history and purpose of the VRA and its 1982 amendments on its head. The state would read into the text of the law a requirement for “race-neutrality” in redistricting, allowing for maps to be invalidated only where there is evidence of racially discriminatory intent. But even the Court’s most conservative members seemed to balk at the notion of reinterpreting one of the signature legislative achievements of the Civil Rights Era in such a radical fashion.
Justice Samuel Alito, who has emerged as a key leader of the Court’s conservative bloc, suggested an alternative approach that would create an escape hatch for states like Alabama to avoid these kinds of controversies in the future, while not completely dismantling the VRA or the totality of circumstances test.
He proposed adding a second stage to the “reasonably configured district” analysis currently conducted by courts applying Gingles, where a majority-minority district, like the second Black-majority congressional district that the lower court had ordered Alabama to draw, would be unnecessary if an “unbiased mapmaker” would not have created such a district.
If a majority of the justices end up coalescing around Alito’s standard, it will allow state legislatures to draw maps that lead to fewer minority candidates winning elections to Congress and state legislatures, particularly in the South. Section 2 challenges to U.S. House districts are currently pending in Arkansas, Georgia, Louisiana, and Texas, while 12 states are involved in ongoing VRA litigation over the drawing of their state legislative districts. A ruling in favor of Alabama will almost certainly rule out the possibility of relief for these plaintiffs, while emboldening states to engage in further egregious racial vote dilution moving forward.
The second case, Moore v. Harper, involves an even more tortured and ahistorical rewriting of the law in service of unchecked gerrymandering. Since the Supreme Court’s 2019 ruling in Rucho v. Common Cause, which foreclosed all federal judicial remedies in partisan gerrymandering cases, there has been a proliferation of litigation in state courts seeking to prevent the abuse of the redistricting process for political ends.
In 2021, North Carolina’s GOP-controlled General Assembly approached its map-drawing task with the goal of electing as many Republican candidates to Congress as possible. The map that Republicans drew would have allowed the party to capture 10 of the state’s 14 seats in the House, a result that the North Carolina Supreme Court held “deprives a voter of his or her right to substantially equal voting power on the basis of partisan affiliation.”
But in its petition to the U.S. Supreme Court, the Legislature latched on to the so-called “independent state legislature (ISL) theory,” a novel and thoroughly counterintuitive reinterpretation of the Elections Clause of the U.S. Constitution designed to give state legislatures unilateral power over the procedures used for federal elections.
Read on to learn about the independent state legislature theory and what’s at stake in the U.S Supreme Court case Moore v. Harper.
The Republicans contend that not only was the North Carolina Supreme Court wrong to reject the Legislature’s plan, but that the Constitution prohibits the state Supreme Court both from replacing the illegal map with one drawn by a neutral party and perhaps even from hearing the case to begin with. By empowering the “legislature” to establish the rules and regulations for congressional elections, they argue, the Framers meant the legislature alone, unchecked by state courts or state constitutions.
But at oral argument in December 2022, only Justices Clarence Thomas, Samuel Alito and Neil Gorsuch appeared to be on board with this most extreme version of the ISL theory. Instead, Justice Brett Kavanaugh focused on an alternative version that closely follows Chief Justice William Rehnquist’s concurring opinion in Bush v. Gore.
While emphasizing a presumption of deference to state Supreme Court decisions interpreting state constitutions, Kavanaugh’s approach would allow the U.S. Supreme Court to step in and reverse when a decision presented “such a sharp departure from the state’s ordinary modes of constitutional interpretation that it lacks any fair and substantial basis in state law.”
What that means for the North Carolina dispute is unclear, and recent developments at the North Carolina Supreme Court may end up mooting the case before the justices even get around to deciding it. But any embrace of the ISL theory by the U.S. Supreme Court represents yet another incremental movement in constitutional precedent away from preserving the democratic rights of voters and towards further enabling the abuses of gerrymandering. Rulings in favor of Alabama and North Carolina will open the door for state legislatures to revisit the district boundaries they drew after the 2020 census, taking advantage of every inch of latitude that the Court gives them to extract partisan and racial advantage from the electoral landscape.
The outcome in each of these cases is likely to be bad for proponents of redistricting reform. The only question that remains to be answered is: how bad?
Nick Seabrook is a professor of Political Science and Public Administration at the University of North Florida.