Gerrymanders for all

I’ve been meaning for some time to post something on the new electoral boundaries in the United States that will apply for November’s mid-term congressional election (you can read my earlier report here). I still haven’t got around to it, but it’s worth quickly drawing attention to a case that the process has thrown up, of potentially far-reaching importance.

In North Carolina, the Republican-controlled legislature drew a heavily gerrymandered set of boundaries last year. The state supreme court threw them out as a violation of the state’s guarantee of free elections, and the legislature appealed to the US supreme court. In March (but with three justices dissenting) the court refused to intervene, given how close it was to the election, but left open the possibility of taking up the case (Moore v. Harper) later.

Now it has agreed to do so. If it finds in favor of the Republican legislators it will not affect the boundaries for this year’s election, but it will revolutionise the process for the future – not just in North Carolina, and not necessarily in a way that will benefit Republicans.

Normally the federal courts would have no role in the interpretation of a state’s constitution. But at stake in this case is the meaning of article I, section 4 of the US constitution, which states that “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.”

The Republicans are advancing a peculiar interpretation, known as the “independent state legislature” theory, according to which this provision means that only the legislature of a state has a role to play. In matters concerning federal elections, so the argument runs, it is not constrained by any of the usual provisions of a state constitution, such as veto by the governor, popular initiative by referendum, or interpretation by the state courts.

With three justices (Alito, Gorsuch and Thomas) apparently already on board, and Brett Kavanaugh indicating sympathy, it is entirely possible that a majority on the supreme court will accept the “independent state legislature” theory, restricting or even prohibiting any judicial review of state gerrymandering – or of anything else a state legislature might do with regard to elections.

This would be of a piece with other controversial moves the court has already made this year, including decisions on gun control, environmental regulation, religious establishment and, most obviously, reproductive freedom. But while all of those decisions can be attacked on good legal grounds, and indeed can be criticised as exercises in ideological warfare rather than good-faith interpretation, none of them have quite the bizarre flavor of the “independent state legislature” theory.

Nor do they strike at the roots of democracy in the same way. As I’ve argued before, preservation of democracy is of a different order to other political issues; if democracy falls, other issues become moot. If a state legislature approves outrages of one sort or another, voters can take their revenge at the next election, but not if it has legislated to stop their votes having an effect.

As Nicholas Stephanopoulos explains, the “independent state legislature” theory is subject to an important limitation. Although state legislatures would be independent of state control, they could still be controlled by congress: article I, section 4 goes on to provide that “Congress may at any time by Law make or alter such Regulations.” So a Democrat-controlled congress could legislate to validate existing state restrictions on the process.

But while simple in principle, such a solution is improbable in practice. Democrats have already shown themselves unable to muster sufficient political will and unity among themselves to pass electoral reform, and it’s unlikely that this would be any different.

And there’s another reason they might be reluctant: at least as regards gerrymandering, it’s by no means obvious that giving state legislatures free rein would work in the Republicans’ favor. Although they control the majority of states, the Democrat-controlled states are both larger and also more likely to currently have their boundaries drawn by independent commissions.

In many small states, Republican control of the process pays no dividends because there are so few Democrat voters there to start with. But in California, for example, if a partisan Democrat legislature were to draw the boundaries instead of an independent commission, it could easily wipe out four or five Republican seats.

The supreme court has already had one opportunity to shut down this insane arms race, three years ago in the case of Rucho v. Common Cause. But a five to four majority refused to do so, putting partisan gerrymandering beyond the reach of the federal courts. Now an augmented conservative majority may shut out the state courts as well.

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