Amicus Curiae Brief — Timothy K. Moore, in His Official Capacity as Speaker of the North Carolina House of Representatives, et al., Petitioners v. Rebecca Harper, et al.
Supreme Court briefOct 25, 2022
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No. 21-1271
IN THE
Supreme Court of the United States
____________________
TIMOTHY K. MOORE, IN HIS OFFICIAL CAPACITY AS
SPEAKER OF THE NORTH CAROLINA HOUSE OF
REPRESENTATIVES, et al.,
Petitioners,
v.
REBECCA HARPER, et al.,
____________________
Respondents.
On Writ of Certiorari to the
Supreme Court of North Carolina
____________________
BRIEF OF AMICI CURIAE CAMPAIGN LEGAL
CENTER, DEMOCRACY 21, END CITIZENS
UNITED//LET AMERICA VOTE ACTION FUND,
NATIONAL COUNCIL OF JEWISH
WOMEN, INC., ONEVIRGINIA2021,
REPRESENTUS, REPUBLICAN WOMEN FOR
PROGRESS, UNITARIAN UNIVERSALISTS
FOR SOCIAL JUSTICE, AND VOTERS NOT
POLITICIANS IN SUPPORT OF RESPONDENTS
____________________
Paul M. Smith
Counsel of Record
Adav Noti
Kevin P. Hancock
Aseem Mulji
CAMPAIGN LEGAL CENTER
1101 14th St. NW, Ste. 400
Washington, DC 20005
(202) 763-2200
psmith@campaignlegal.org
Counsel for Amici Curiae
i
TABLE OF CONTENTS
INTERESTS OF AMICI CURIAE ..............................1
SUMMARY OF ARGUMENT .....................................1
ARGUMENT ...............................................................4
I.
Partisan Gerrymandering is Antidemocratic
and Violates Fundamental Rights. ...................4
II. Petitioners’ Interpretation of the Elections
Clause Would Leave Gerrymandering of
Congressional Maps Effectively Unchecked
and Thereby Injure American Representative
Democracy. .........................................................8
A. Petitioners’ Theory Would Eliminate
Remedies for Partisan Gerrymandering
Under State Constitutions. .........................9
B. Petitioners’ Theory Would Threaten
Independent Redistricting Commissions. 13
C. Voters Cannot Depend on State
Legislatures and Congress Alone to
Check Partisan Gerrymandering. ............21
III. Unchecked Partisan Gerrymandering Would
Exacerbate Polarization, Extremism, and
Dysfunction. .....................................................27
CONCLUSION ..........................................................34
ii
TABLE OF AUTHORITIES
Cases
Page
Arizona Minority Coalition for Fair Redistricting v.
Arizona Independent Redistricting Commission,
208 P.3d 676 (Ariz. 2009)..................................... 18
Arizona State Legislature v. Arizona Redistricting
Commission,
567 U.S. 787 (2015) .............. 1, 4, 15, 16, 17, 25, 32
Black Voters Matter v. Lee, 2022-CA-0006666
(Fla. 2d Cir. Ct. Apr. 22, 2022) ............................ 10
Brown v. Secretary of State of Florida,
668 F.3d 1271 (11th Cir. 2012) .............................. 9
Common Cause v. Lewis, No. 18 CVS 014001, 2019
WL 4569584 (N.C. Super. Ct. Sept. 3, 2019) ...... 31
Gill v. Whitford, 138 S. Ct. 1916 (2018) ..................... 6
Graham v. Adams, No. 22-CI-47
(Ky. Cir. Ct. Jan. 20, 2022) .................................. 10
Harkenrider v. Hochul, No. 60, 2022 N.Y. Slip Op.
02833, 2022 WL 1236822 (N.Y. Apr. 27, 2022) ... 10
In re Colorado Independent Congressional
Redistricting Commission,
497 P.3d 493 (Colo. 2021) ...................................... 7
Kennai Peninsula Borough v. State, 743 P.2d 1352
(Alaska 1987) ......................................................... 7
League of United Latin American Citizens v. Perry,
548 U.S. 399 (2006) .............................................. 21
League of Women Voters of Florida v. Detzner,
172 So. 3d 363 (Fla. 2015) ................................. 7, 9
iii
League of Women Voters of Ohio v. Ohio Redistricting
Commission, Nos. 2021-1193, 2021-1198, and
2021-1210, 2022 WL 110261 (2022) ...................... 7
League of Women Voters of Pennsylvania v.
Commonwealth, 178 A.3d 737 (2018) .................... 7
League of Women Voters of Utah v. Utah State
Legislature, No. 220901712
(Utah 3d Dist. Ct. Mar. 17, 2022)........................ 10
Marbury v. Madison, 1 Cranch 137 (1803)............... 13
Neiman v. LaRose, Nos. 2022-0298 and 2022-0303,
2022 WL 2812895 (Ohio July 19, 2022) .......... 7, 10
Republican Party of New Mexico v. Oliver,
No. D-506-CV-202200041
(N.M. 5th Dist. Ct. Jan. 21, 2022) ....................... 10
Reynolds v. Sims, 377 U.S. 533 (1964) ....................... 8
Rivera v. Schwab, 512 P.3d 168 (Kan. 2022) ........... 10
Rucho v. Common Cause,
139 S. Ct. 2484 (2019) ............ 1, 6, 9, 16, 21, 24, 26
Suttlar v. Thurston, No. 60CV-22-1849
(Ark. Cir. Ct. Mar. 21, 2022)................................ 10
Szeliga v. Lamone, No. C-02-CV-21-001816, 2022 WL
2132194 (Md. Cir. Ct. Mar. 25, 2022).............. 7, 10
United States v. Carolene Products Co.,
304 U.S. 144 (1938) .............................................. 12
Vieth v. Jubelirer, 541 U.S. 267 (2004)................. 6, 26
iv
Constitutional and Statutory Provisions
U.S. Const. art. I, § 4 ................................................... 2
Ariz. Const. art. IV, pt. 2, § 1 .................................... 14
Ariz. Const. art. IV, pt. 2, § 1(3)-(23) ............ 14, 18, 20
Cal. Const. art. XXI, § 2 ...................................... 14, 18
Cal. Const. art. XXI, § 3(b) ........................................ 18
Colo. Const. art. V, §§ 44-44.5....................... 14, 15, 18
Haw. Const. art. IV, § 2............................................. 13
Haw. Const. art. IV, § 10........................................... 18
Idaho Const. art. III, § 2(2) ....................................... 14
Idaho Const. art. III, § 2(5) ....................................... 18
Mich. Const. art. IV, § 6 ...................................... 14, 18
Mich. Const. art. IV, § 6(13) ...................................... 20
Mich. Const., art. IV, § 6(19) ..................................... 19
Mont. Const. art. V, § 14 ........................................... 14
Mont. Const. art. V, § 14(2) ....................................... 14
N.J. Const. art. II, § 2.......................................... 13, 18
N.J. Const. art. II, § 2, ¶ 7 ........................................ 18
N.Y. Const. art. III, § 4.................................. 14, 15, 18
N.Y. Const. art. III, § 5a............................................ 18
N.Y. Const. art. III, § 5b............................................ 14
N.Y. Const. art. III, § 5b(a) ....................................... 14
Va. Const. art. II, § 6a ................................... 13, 14, 18
Wash. Const. art. II, § 43 .................................... 14, 18
v
Wash. Const. art. II, § 43(2) ...................................... 14
Wash. Const. art. II, § 43(10) .................................... 18
Other Authorities
2022 House Race Ratings, Cook Pol. Rep (Oct. 11,
2022), https://perma.cc/U8HN-M4NF ................. 28
Adam Raviv, Unsafe Harbors: One Person, One Vote
and Partisan Redistricting, 7 U. Pa. J. Const. L.
1001 (Apr. 2005) ................................................... 29
Alex Garlick, National Policies, Agendas, and
Polarization in American State Legislatures: 2011
to 2014, 45 Am. Pol. Rsch. 941 (2017) ................. 23
Andrew B. Hall, What Happens When Extremists
Win Primaries?, 109 Am. Pol. Sci Rev. 18
(2015) .................................................................... 28
Ashlyn Still, Harry Steven & Kevin Uhrmacher,
Competitive House Districts Are Getting Wiped Off
the Map, Wash. Post (Nov. 23, 2021)
https://perma.cc/3QG7-SRMZ .............................. 28
Bruce E. Cain, Redistricting Commissions: A Better
Political Buffer?, 121 Yale L.J. 1808 (2012)........ 13
Carl Hulse, After a day of debate, the voting rights
bill is blocked in the Senate, N.Y. Times (Jan. 19,
2022), https://perma.cc/YCC4-MT8U .................. 27
Cassandra Handan-Nader, Andrew C. W. Myers &
Andrew B. Hall, Polarization and State
Legislative Elections, Stanford Inst. for Econ.
Pol’y Rsch (Working Paper No. 22-05, 2022) ...... 29
vi
Christopher Warshaw, et al., Districts for a New
Decade — Partisan Outcomes and Racial
Representation in the 2021-22 Redistricting Cycle,
52 Publius: J. Federalism 428
(May 24, 2022) ........................................ 5, 8, 15, 17
Clifton B. Parker, Politicians More Polarized Than
Voters, Stanford Political Scientist Finds,
Stanford News Serv. (Dec. 20, 2017),
https://perma.cc/EF2J-5G9P................................ 29
Daniel D. Polsby & Robert D. Popper, The Third
Criterion: Political Compactness as a Procedural
Safeguard against Partisan Gerrymandering,
9 Yale L. & Pol’y Rev. 301 (1991) ........................ 29
Daniel Hopkins, The Increasingly United States:
How and Why American Political Behavior
Nationalized, 13 (2018) ........................................ 22
David Daley, Ratf**ked: The True Story
Behind the Secret Plan to Steal America’s
Democracy (2016) ................................................... 5
David Mayhew, Congress: The Electoral Connection
(1974) .................................................................... 29
Doug Spencer, All About Redistricting, (last visited
Oct. 24, 2022), https://perma.cc/WUY9-3JJX ..... 13
Earl Blumenauer and Jim Leach, Opinion,
Redistricting, a Bipartisan Sport, N.Y. Times
(July 8, 2003), https://perma.cc/7BTU-AQ7R ..... 29
vii
Final Order Establishing Voting Districts for the
Senate of Virginia, the House of Delegates of
Virginia, and Virginia’s Representatives to the
United States House of Representatives, In Re:
Decennial Redistricting Pursuant to The
Constitution of Virginia, art. II, §§ 6 to 6-A, and
Virginia Code § 30-399 (Va. Dec. 28, 2021),
https://perma.cc/DNT2-THH8 ............................... 7
Francis Lee, How Party Polarization Affects
Governance, 18 Ann. Rev. Pol. Sci. 261
(Feb. 4, 2015) ........................................................ 30
Harvey C. Mansfield, Our Polarized Politics Dimly
Seen, Nat’l Affs. (Winter 2020),
https://perma.cc/K857-KEF2 ............................... 30
Jacob M. Grumbach, Laboratories of Democratic
Backsliding, (Working Paper, Apr. 20, 2022)
https://perma.cc/AM5U-U6S5 .............................. 31
Jake Grumbach, Laboratories Against Democracy:
How National Parties Transformed State Politics
(2022) .................................................................... 23
James A. Gardner, The Myth of State Autonomy:
Federalism, Political Parties, and the National
Colonization of State Politics, 29 J.L. & Pol. 1
(2013) .................................................................... 22
James A. Piazza, Political Polarization and Political
Violence (July 20, 2022) (Working Paper),
https://perma.cc/D3UK-FBH6 ............................. 31
viii
John Adams, Thoughts on Government (1776),
reprinted in 1 American Political
Writing During the Founding Era: 1760-1805
(Charles S. Hyneman & Donald S. Lutz eds.,
1983) ....................................................................... 5
Larry Hogan, Opinion, Partisan Gerrymandering
Has No Place in Our Democracy, Wash. Post
(Mar. 27, 2018), https://perma.cc/4TWE-B5VL .. 33
Mike Gallagher and Ro Khanna, Two Congressmen
Offer a Bipartisan Plan to ‘Drain the
Swamp’, USA Today (June 1, 2017)
https://perma.cc/HD2M-LNTX ............................ 28
Morris P. Fiorina and Samuel J. Abrams, Political
Polarization in the American Public, 11 Ann. Rev.
Pol. Sci. 563 (2008) ............................................... 32
Nathaniel Rakich & Tony Chow, Ron DeSantis Drew
Florida An Extreme Gerrymander,
FiveThirtyEight (Jul. 14, 2022),
https://perma.cc/6KF6-7SFT................................ 24
National Democratic Redistricting Committee, “Our
Work,” (last visited Oct. 23, 2022)
https://democraticredistricting.com/our-work .... 23
National Republican Redistricting Trust, “About Us,”
https://www.thenrrt.org/about (last visited Oct.
23, 2022) ............................................................... 24
Nicholas Stephanopoulos & Eric McGhee,
Partisan Gerrymandering and the Efficiency Gap,
82 U. Chi. L. Rev. 831 (2015)................................. 5
ix
Robert Draper, The League of Dangerous
Mapmakers, The Atlantic (Oct. 2012),
https://perma.cc/G3XT-QP5K .............................. 23
Samuel Issacharoff, Gerrymandering and Political
Cartels, 116 Harv. L. Rev. 593 (2002) ................. 23
Sara Burnett, Illinois Dems Embrace
Gerrymandering in Fight for US House,
Associated Press (Oct. 28, 2021),
https://perma.cc/5H8S-WET9 .............................. 24
Stephen Ansolabehere, James M. Snyder, Jr. &
Charles Steward III, Candidate Positioning in
U.S. House Elections, 45 Am. J. Pol. Sci. 136
(2001) .................................................................... 26
What Redistricting Looks Like in Every State,
FiveThirtyEight (Jul. 19, 2022),
https://perma.cc/QF7P-E4FX .............................. 17
1
INTERESTS OF AMICI CURIAE 1
Amici are a diverse group of democracy reform,
public policy, advocacy, and faith-based organizations
whose missions include ensuring that the democratic
process is free and fair for all voters: Campaign Legal
Center, Democracy 21, End Citizens United//Let
America Vote Action Fund, National Council of
Jewish Women, Inc., OneVirginia2021, RepresentUs,
Republican Women for Progress, Unitarian
Universalists for Social Justice, and Voters Not
Politicians. Each has an interest in ensuring that
state
courts
and
independent
redistricting
commissions continue to act as a check on partisan
gerrymandering and the harms it inflicts upon
American representative democracy.
SUMMARY OF ARGUMENT
This Court has repeatedly affirmed that partisan
gerrymandering is “‘incompatible with democratic
principles.’” Rucho v. Common Cause, 139 S. Ct. 2484,
2506 (2019) (quoting Ariz. State Legis. v. Ariz.
Redistricting Comm’n, 567 U.S. 787, 791, 824 (2015)
(“AIRC”)). Although three years ago the Court held
that
partisan
gerrymandering
claims
are
nonjusticiable under the federal Constitution, the
Pursuant to this Court’s Rule 37.6, counsel for Amici Curiae
certifies that this brief was not authored in whole or in part by
counsel for any party and that no person or entity other than
amici curiae, their members, or their counsel has made a
monetary contribution intended to fund the preparation or
submission of this brief. Petitioners and Respondents have
consented to the filing of this amici curiae brief by written
blanket consent.
1
2
Court assured the country that its ruling would not
“condemn complaints about districting to echo into a
void,” due in part to the availability of state
constitutions
and
independent
redistricting
commissions (IRCs) to check the problem of partisan
gerrymandering. Id. at 2507.
The North Carolina Supreme Court in this case
provided exactly the kind of check on gerrymandering
that this Court promised would be available. After
failing to remedy one decade’s malapportioned
congressional districts in federal court and facing
another, voters sought relief in state court alleging
that the North Carolina General Assembly’s 2021
congressional plan violated the state constitution by
severely disfavoring non-Republican voters. The
North Carolina Supreme Court agreed, finding that
the General Assembly’s congressional map was indeed
an “egregious and intentional partisan gerrymander,
designed to . . . give greater voice to [some] voters than
to any others,” and in clear violation of a fundamental
right to substantially equal voting power, as protected
by four distinct provisions of the North Carolina
Constitution. Pet. App. 10a-12a.
The Court should reject Petitioners’ request to
reverse the North Carolina Supreme Court’s ruling
under a radical and unprecedented reading of the
Constitution’s Elections Clause. See U.S. Const. art. I,
§ 4. Petitioners assert that the Elections Clause
prevents state courts from invalidating state
regulation of federal congressional elections that
violates state constitutional protections. As
Respondents have argued, Petitioners’ assertion
3
should be rejected because it is inconsistent with the
Constitution and this Court’s precedents. But in
addition, as Amici explain below, Petitioners’ reading
of the Elections Clause should be rejected because it
would be disastrously harmful. It would eliminate or
render ineffective some of the last available checks on
partisan gerrymandering of congressional districts
and betray the very purpose and promise of the U.S.
Constitution itself: to provide for representative
government.
Petitioners’ reading of the Elections Clause would
put an end to any judicial remedies for partisan
gerrymandering and threaten the viability of IRCs.
State courts and IRCs play a critical role in preventing
and remedying partisan gerrymandering. Partisan
gerrymandering benefits those in power, so there is
little incentive for incumbent legislators to act
contrary to their own partisan self-interest to end the
practice. Partisan gerrymandering also undermines
voters’ ability to cure the problem by voting those
same incumbents out of office. These dynamics exist
at both the federal and state level, given that national
interests increasingly dominate state politics and the
redistricting process.
The costs to American representative democracy
of
allowing
complaints
about
partisan
gerrymandering to echo into a void would be
enormous. By creating increasing numbers of “safe”
congressional seats, partisan gerrymandering renders
general elections uncompetitive. As a result,
officeholders tailor their policy views to satisfy voters
in the most extreme wing of their party, whose votes
4
they will need to win a competitive primary election.
The result is a polarized Congress, where Members of
each party are reluctant to work with the other party’s
Members out of fear of being defeated in a primary by
a more liberal or more conservative challenger. Driven
by these incentives, politicians continue to
gerrymander their districts, feeding a vicious cycle of
polarization, extremism, and dysfunction.
The Court should decline Petitioners’ invitation
to accelerate this trend and should respect the distinct
constitutional role that state courts and IRCs play in
preventing and remedying partisan gerrymandering.
ARGUMENT
I.
Partisan Gerrymandering is Antidemocratic
and Violates Fundamental Rights.
There is little debate that partisan gerrymanders,
like North Carolina’s congressional plan, “are
incompatible with democratic principles,” including
the “core principle of republican government . . . that
the voters should choose their representatives, not the
other way around.” AIRC, 567 U.S. at 791, 824
(internal citations and quotations omitted).
By drawing district lines to favor one political
party, the party in control of redistricting can amplify
its control over a congressional delegation, ensuring
that more of its candidates are safely elected to
Congress while artificially minimizing opportunities
for voters of the disfavored party to elect their
preferred candidates. The dilution and distortion that
results from gerrymandered district maps is
antithetical to the Founders’ vision of Congress as “an
5
exact portrait of the people at large,” a representative
body where “equal interest among the people should
have equal interest in it.” John Adams, Thoughts on
Government at 403 (1776), reprinted in 1 American
Political Writing During the Founding Era: 1760-1805
(Charles S. Hyneman & Donald S. Lutz eds., 1983).
Although partisan gerrymandering is not new,
the rise of modern computing in recent decades has
made it easier for politicians to draw gerrymanders so
precise and extreme that even major shifts in voter
preferences cannot shake loose the advantaged
party’s hold on power. See David Daley, Ratf**ked:
The True Story Behind the Secret Plan to Steal
America’s Democracy 51-60 (2016). While voters in
some states have managed to rein in partisan
gerrymandering by mandating the use of IRCs by
popular initiative, legislatures controlled by both
parties in the last two decades have enacted extreme
and durable partisan gerrymanders in states where
they still run the redistricting process. 2 Such durable
gerrymanders result in the entrenchment of one
party’s control over the state’s congressional
delegation, depriving disfavored parties’ voters of fair
congressional representation for an entire decade.
Partisan gerrymandering also contributes to other
phenomena ailing American democracy, including
partisan polarization, extremism, and impaired
See Nicholas Stephanopoulos & Eric McGhee, Partisan
Gerrymandering and the Efficiency Gap, 82 U. Chi. L. Rev. 831,
867 (2015); Christopher Warshaw, et al., Districts for a New
Decade — Partisan Outcomes and Racial Representation in the
2021-22 Redistricting Cycle, 52 Publius: J. Federalism 428, 447
(May 24, 2022).
2
6
democratic accountability leading to increased
dysfunction—all of which will intensify absent
meaningful checks on the practice.
Extreme partisan gerrymanders are not only
unfair
and
destructive—they
are
also
unconstitutional. Although this Court declined
jurisdiction over partisan gerrymandering claims,
Rucho, 139 S. Ct. at 2484, it has unanimously
agreed—twice—that “severe partisan gerrymanders
violate the [federal] Constitution,” Vieth v. Jubelirer,
541 U.S. 267, 292 (2004); see also id. at 313
(recognizing consensus) (Kennedy, J., concurring in
judgment). First, in Vieth, Justice Kennedy explained
that extreme partisan gerrymanders inflict at least
two constitutional harms on disfavored voters: they
violate the right to fair and equal representation
under the Fourteenth Amendment, id. at 313, and
contravene the First Amendment’s prohibition on
“disfavored treatment by reason of [one’s political]
views,” id. at 314. Then, in Gill, Chief Justice Roberts
wrote for a unanimous Court that partisan
gerrymandering
can
inflict
the
individual
constitutional harm of vote dilution, by placing a voter
in a “packed or cracked” district “caus[ing] his vote . .
. to carry less weight than it would carry in another,
hypothetical district.” Gill v. Whitford, 138 S. Ct.
1916, 1931 (2018).
State courts have similarly found extreme
partisan gerrymanders to violate multiple rights
guaranteed by state constitutions. In some states,
courts have applied new constitutional provisions
specifically
aimed
at
prohibiting
partisan
7
gerrymandering. 3 In other states, like North
Carolina, courts have engaged in their time-tested
role of applying well-established constitutional
principles to new factual contexts, and have found
partisan gerrymanders to violate core state
constitutional rights, including guarantees of free
elections, equal protection of law, and free speech and
association. 4
In
short,
partisan
gerrymandering
of
congressional districts inflicts constitutional harms
on voters and serious damage on American
democracy. It is a crisis in need of every available
restraint.
See, e.g., Harkenrider v. Hochul, No. 60, 2022 N.Y. Slip Op.
02833, 2022 WL 1236822, at *10 (N.Y. Apr. 27, 2022); League of
Women Voters of Ohio v. Ohio Redistricting Comm’n, Nos. 20211193, 2021-1198, and 2021-1210, 2022 WL 110261, at *24-28
(Ohio Jan. 12, 2022); Neiman v. LaRose, Nos. 2022-0298 and
2022-0303, 2022 WL 2812895, at *1 (Ohio July 19, 2022); League
of Women Voters of Fla. v. Detzner, 172 So. 3d 363 (Fla. 2015); In
re Colorado Indep. Cong. Redistricting Comm’n, 497 P.3d 493,
515 (Colo. 2021); Final Order Establishing Voting Districts for
the Senate of Virginia, the House of Delegates of Virginia, and
Virginia’s Representatives to the United States House of
Representatives at 1–2, In Re: Decennial Redistricting Pursuant
to The Constitution of Virginia, art. II, §§ 6 to 6-A, and Virginia
Code § 30-399 (Va. Dec. 28, 2021), https://perma.cc/DNT2-THH8.
3
See, e.g., League of Women Voters of Pa. v. Commonwealth,
178 A.3d 737, 820 (Pa. 2018); Harper v. Hall, 868 S.E.2d at 546;
Szeliga v. Lamone, No. C-02-CV-21-001816, 2022 WL 2132194,
at *1 (Md. Cir. Ct. Mar. 25, 2022); Kennai Peninsula Borough v.
State, 743 P.2d 1352, 1371 (Alaska 1987).
4
8
II. Petitioners’ Interpretation of the Elections
Clause Would Leave Gerrymandering of
Congressional Maps Effectively Unchecked
and
Thereby
Injure
American
Representative Democracy.
Given that partisan politicians have little
incentive to do anything about a practice that
entrenches them in office, the constitutional rights of
the victims of extreme partisan gerrymandering
“demand[] judicial protection.” Reynolds v. Sims, 377
U.S. 533, 566 (1964). In 2019, however, the Court held
in Rucho that relief is not available in federal court.
To be sure, Rucho emphasized that other judicial and
political remedies remained. And indeed, in the years
since, state constitutions and IRCs have played an
important role in checking partisan gerrymandering.
See Warshaw et al., supra note 2, at 432-33.
But Petitioners now ask this Court to remove two
of the only remaining checks on partisan
gerrymandering by adopting a strained interpretation
of the Elections Clause that would preclude state
court review of partisan gerrymanders and
undermine IRCs. Petitioners argue that the Elections
Clause grants state legislatures the power to regulate
congressional elections—including the drawing of
congressional districts—unconstrained by any
substantive state constitutional or statutory law.
Pet’rs’ Br. at 11-12. Acceptance of that theory would
undermine American representative democracy in
fundamental ways.
9
A.
Petitioners’ Theory Would Eliminate
Remedies for Partisan Gerrymandering
Under State Constitutions.
As the Court noted in Rucho, state courts served
as an important venue for addressing partisan
gerrymandering even when federal courts were still
able to hear such claims. For example, the Court
described how, in 2015, the Florida Supreme Court
invalidated the Florida Legislature’s congressional
districting plan as a partisan gerrymander that
violated the state constitution’s “Fair Districts
Amendment.” Rucho, 139 S. Ct. at 2507 (citing League
of Women Voters of Florida v. Detzner, 172 So.3d 363
(Fla. 2015)). That Amendment, the Court explained,
contains specific standards and guidance for judging
the constitutionality of a partisan gerrymander that
are absent in the U.S. Constitution. See id.; Detzner,
172 So.3d at 369 (describing how the Fair Districts
Amendment “forbid[s] the Florida Legislature from
drawing a redistricting plan or an individual district
with the ‘intent to favor or disfavor a political party or
an incumbent’” (quoting Fla. Const. art. III, § 20(a))). 5
In the years since Rucho, many state courts have
adjudicated partisan gerrymandering claims. Courts
of at least ten states are currently hearing or have
heard claims alleging that partisan gerrymanders
Notably, in 2012, the Amendment was upheld by the
Eleventh Circuit against an independent-state-legislature
challenge like the one mounted here. Brown v. Sec’y of State of
Fla., 668 F.3d 1271 (11th Cir. 2012).
5
10
violated state constitutional provisions. 6 In many of
those cases, state courts invalidated congressional
maps for violating the state’s constitution. See, e.g.,
Harkenrider v. Hochul, No. 60, 2022 N.Y. Slip Op.
02833, 2022 WL 1236822, at *11 (N.Y. Apr. 27, 2022);
Szeliga v. Lamone, No. C-02-CV-21-001816, 2022 WL
2132194, at *1 (Md. Cir. Ct. Mar. 25, 2022); Harper v.
Hall, 867 S.E.2d 554, 556 (mem) (N.C. 2022); Neiman
v. LaRose, Nos. 2022-0298 and 2022-0303, 2022 WL
2812895, at *6 (Ohio July 19, 2022). And in at least
one case, a state court relied on Rucho as authority for
its ability to adjudicate a partisan gerrymandering
claim under its state constitution. Szeliga, 2022 WL
2132194, at *1 (“Chief Justice Roberts, the author of
Rucho, suggested, however, that ‘provisions in state
statutes and state constitutions can provide
standards and guidance for state courts to apply.’”).
But Petitioners in this case ask the Court to put
an end to all state court review of gerrymandered
congressional maps. Their extreme view allows no
exception even for state constitutional provisions, like
6
See Suttlar v. Thurston, No. 60CV-22-1849 (Ark. Cir. Ct.
Mar. 21, 2022), https://perma.cc/NB62-QD2Y; Black Voters
Matter Capacity Building Inst., Inc. v. Lee, No. 2022-CA-0006666
(Fla. 2d Cir. Ct. Apr. 22, 2022), https://perma.cc/438R-SP6V;
Rivera v. Schwab, 512 P.3d 168, 177-78 (Kan. 2022); Graham v.
Adams, No. 22-CI-0047 (Ky. Cir. Ct. Jan. 20, 2022),
https://perma.cc/VB2D-AKLL; Szeliga, 2022 WL 2132194;
Republican Party of N.M. v. Oliver, No. D-506-CV-202200041
(N.M. 5th Dist. Jan. 21, 2022), https://perma.cc/82JX-RKKZ;
Harkenrider, 2022 WL 1236822; Harper v. Hall, 867 S.E.2d 554
(mem) (N.C. 2022); Neiman, 2022 WL 2812895; League of Women
Voters of Utah v. Utah State Legislature, No. 220901712 (Utah
3d Jud. Cir. Ct. Mar. 17, 2022), https://perma.cc/2EFM-49PB.
11
the one in Florida, that specifically prohibit partisan
gerrymandering. Although Petitioners claim that the
question presented in this case involves only whether
state courts may apply allegedly “vague state
constitutional provisions,” Pet’rs’ Br. at i, their
argument instead asserts that state legislatures are
categorically “not subject to substantive state-law
restrictions,” id. at 25. Consistent with that claim,
Petitioners contend that the North Carolina courts
violated the Elections Clause simply by “striking
down the General Assembly’s original congressional
map on state-law grounds,” id. at 49, without regard
to whether those state-law grounds were specific or
vague. 7
Petitioners’ view of the Elections Clause also
allows no room for state legislatures to decide for
themselves whether their own state courts may
review their congressional maps. Relying on A.L.A.
Schechter Poultry Corp. v. United States, 295 U.S.
495, 529 (1935)—a case premised on the separation of
powers in the federal government—Petitioners claim
that the federal non-delegation doctrine also bars
state legislatures from granting any authority to state
courts to review laws enacted pursuant to the
Elections Clause. Pet’rs’ Br. at 45; see also id. at 12
(“Any delegation of this legislative power would be
The breadth of Petitioners’ argument undermines claims by
their amici that a ruling in Petitioners’ favor would allow state
courts to continue to review state legislatures’ congressional
maps so long as those courts limit themselves only to “enforcing
the express policy prescriptions of the legislature.” Br. for
Republican Nat’l Comm., NRCC & N.C. Republican Party as
Amici Curiae Supporting Pet’rs at 21 (“RNC Br.”).
7
12
itself unconstitutional[.]”). Even after conceding that
the Court has permitted Congress to delegate
“substantial implementing discretion” to other
branches despite the non-delegation doctrine,
Petitioners continue to claim that state legislatures
cannot authorize state courts to apply election-related
state constitutional provisions if they are too “openended.” Pet’rs’ Br. at 46.
Petitioners’ position that state courts may not
apply substantive state law to limit state legislatures’
regulation of federal elections effectively asks this
Court to eliminate any judicial remedies for partisan
gerrymandering of congressional maps. In an attempt
to make their radical position appear modest,
Petitioners emphasize that the federal Constitution
will continue to impose limits on state legislatures’
authority to regulate federal elections, see Pet’rs’ Br.
at 23; but of course, this is not true for the partisan
gerrymandering at issue in this case in the wake of
Rucho. Such a result would eliminate judicial review
precisely where it is needed the most—to correct
legislative action that prevents the majoritarian
political process from properly functioning. See United
States v. Carolene Prod. Co., 304 U.S. 144, 152 n.4
(1938) (“[L]egislation which restricts those political
processes which can ordinarily be expected to bring
about repeal of undesirable legislation [should be]
subjected to more exacting judicial scrutiny.”). And it
would violate a fundamental tenet of our legal system:
that “[t]he very essence of civil liberty certainly
consists in the right of every individual to claim the
protection of the laws, whenever he receives an
13
injury.” Marbury v. Madison, 5 U.S. (1 Cranch) 137,
163 (1803).
B.
Petitioners’ Theory Would Threaten
Independent Redistricting Commissions.
Petitioners’ interpretation of the Elections Clause
would threaten one of the most effective means to
prevent partisan gerrymandering in the first place:
IRCs, or lawmaking bodies separate from the state
legislature that are vested with significant authority
over redistricting. IRCs are typically created by voterapproved state constitutional amendments, often in
response
to
public
outrage
over
extreme
gerrymanders enacted by state legislatures.
Eleven states currently use IRCs for
congressional redistricting, with significant variation
among them as to the commission’s degree of
independence from partisan politics. 8 Three allow
elected officials to serve as commissioners, 9 while
eight maintain greater independence by prohibiting
These states are Arizona, California, Colorado, Hawaii,
Idaho, Michigan, Montana, New Jersey, New York, Virginia, and
Washington. See Doug Spencer, All About Redistricting,
https://perma.cc/WUY9-3JJX; Bruce E. Cain, Redistricting
Commissions: A Better Political Buffer?, 121 Yale L.J. 1808,
1813-19 (2012).
8
IRCs in these states—Hawaii, New Jersey, and Virginia—
are sometimes called “politician commissions” as they are not
strictly independent from the state legislature. Virginia’s
commission must include both partisan legislators and nonelected citizens, so it is perhaps best considered a hybrid. See
Haw. Const. art. IV, § 2; N.J. Const. art. II, § 2; Va. Const. art.
II, § 6a.
9
14
direct participation by politicians. 10 Some permit
partisan
legislative
leaders
to
appoint
11
commissioners,
while others limit the role of
politicians in the appointment process. 12 Some allow
partisan legislatures a role in approving or modifying
IRC-approved districts, 13 while others regard the
IRC’s decision as final. Many require commissions to
operate transparently and to provide meaningful
opportunities for public participation. 14 And all IRCs
must abide by specified neutral criteria when drawing
district lines—including, often, an explicit prohibition
on partisan gerrymandering. 15
IRCs in these states—Arizona, California, Colorado, Idaho,
Michigan, Montana, New York, and Washington—are often
categorized as “independent commissions.” See Ariz. Const. art.
IV, pt. 2, § 1; Cal. Const. art. XXI, § 2; Colo. Const. art. V, §§ 4444.5; Idaho Const. art. III, § 2(2); Mich. Const. art. IV, § 6; Mont.
Const. art. V, § 14; N.Y. Const. art. III, § 5-b; Wash. Const. art.
II, § 43.
10
See Ariz. Const. art. IV, pt. 2, § 1(3); Idaho Const. art. III,
§ 2(2); Mont. Const. art. V, § 14(2); N.Y. Const. art. III, § 5-b(a);
Wash. Const. art. II, § 43(2).
11
IRCs in these states—California, Colorado, and Michigan—
are widely regarded to meet the highest standard of
independence from partisan political influence. See Cal. Const.
art. XXI, § 2; Colo. Const. art. V, § 44.1; Mich. Const. art. IV,
§ 6(1).
12
See Wash. Const. art. II, § 43(7)-(8); N.Y. Const. art. III,
§ 4(b); Va. Const. art. II, § 6a(d)-(g).
13
See, e.g., Colo. Const. art. V, § 44.4; Mich. Const. art. IV,
§ 6(8)-(10), (14)(b).
14
15
See, e.g., Ariz. Const. art. IV, pt. 2, § 1(14)-(15); Cal. Const.
15
Although the design of IRCs varies from state to
state, their core purpose is to limit the role of selfinterested politicians and thereby make the
redistricting process less susceptible to extreme
partisan manipulation. By and large, IRCs have been
successful in this endeavor, producing fairer district
maps than states without independent commissions.
See Warshaw et al., supra note 2, at 447. 16
This Court’s adoption of Petitioners’ Elections
Clause theory could halt this forward progress and
threaten states’ carefully designed IRCs in at least
two ways. The first threat comes from those who seek
to redefine the term “Legislature” in the Elections
Clause to exclude IRCs altogether. 17 This theory, of
course, contradicts settled precedent. In AIRC, the
Court upheld Arizona’s use of an IRC to draw its
congressional districts, holding in no uncertain terms
that “the Elections Clause permits the people . . . to
provide for redistricting by independent commission.”
576 U.S. at 813. The Court explained that
“redistricting is a legislative function, which may be
art. XXI, § 2(e); Colo. Const. art. V, § 44.3; Mont. Const. art. V,
§ 14(1); Mont. Code Ann. § 5-1-115; Wash. Const. art. II, § 43(5);
N.Y. Const. art. III, § 4(c).
These scholars note that the effectiveness of commissions
depends on their design: commissions with greater independence
from partisan political bodies and enforceable standards of
partisan fairness tend to produce fairer maps, whereas advisory
and politician commissions can easily fall prey to partisan
gamesmanship. See Warshaw et al., supra note 2, at 447.
16
See Br. for Claremont Inst. Ctr. for Const. Juris. as Amicus
Curiae Supporting Pet’rs at 23; Br. for APA Watch as Amicus
Curiae Supporting Pet’rs at 13.
17
16
performed in accordance with the State’s
prescriptions for lawmaking,” including IRCs
established by popular initiative. Id. at 808-09. And,
more recently in Rucho, this Court recognized that
IRCs are one of the remaining means to “restrict[]
partisan considerations in districting,” including
commissions that are “responsible in whole or in part
for creating and approving . . . congressional . . .
districts.” 139 S. Ct. at 2507.
Petitioners do not call in the first instance for
overruling AIRC. They concede that the power to
redistrict under the Elections Clause may be assigned
to a “lawmaking entity other than the ordinary
institutional legislature,” such as IRCs, focusing their
challenge not on the roles of different lawmaking
bodies in the redistricting process but on the role of
state courts. Pet’rs’ Br. at 24-25. AIRC’s affirmance of
IRCs, they note, is “not relevant here.” Id. at 40. At
the same time, however, Petitioners argue that state
legislatures themselves cannot delegate redistricting
authority to other institutions (or at least not to
courts), id. at 44-46, and they invite this Court to
overrule AIRC if necessary, id. at 40 n.9.
The consequences of such a ruling, or any that
casts doubt on the constitutionality of IRCs, would be
enormous. It would call into question the method of
legislating under the Elections Clause now used by
eleven states to draw and approve congressional
districts, as well as six additional states that use
advisory and backup commissions. Such a ruling
would invite substantial litigation against IRCs and
call into question the validity of the ten congressional
17
maps drawn and approved by IRCs during the last
redistricting cycle. 18 These maps are currently being
used to elect 121 Members of the 118th Congress,
more than a quarter of the House of
Representatives. 19 This Court should decline any
invitation by Petitioners or their amici to relitigate
AIRC and sow such chaos. Instead, the Court should
unambiguously reaffirm the constitutionality of IRCs
under the Elections Clause.
The second threat to IRCs is the theory that
Petitioners do advance in this case. They concede that
procedural provisions of state constitutions relating to
gerrymandering are enforceable and that assignment
of responsibility for congressional redistricting to an
IRC might be viewed as permissibly procedural.
Pet’rs’ Br. at 24. But they then assert that no
“substantive” state constitutional rules could govern
an IRC’s exercise of this power. Id. As an initial
matter, AIRC also forecloses this theory. See 576 U.S
at 808 (holding that redistricting must “be performed
in accordance with the State’s prescriptions for
lawmaking”); see also id. at 817-18 (“Nothing in [the
Elections] Clause instructs, nor has this Court ever
held, that a state legislature may prescribe
regulations on the time, place, and manner of holding
Of the eleven states that provided for congressional
redistricting by IRCs in 2021, all but one will use a commissiondrawn plan in the upcoming midterm elections; New York is
using a court-drawn plan. See Warshaw et al., supra note 2, at
437.
18
See What Redistricting Looks Like in Every State,
FiveThirtyEight (Jul. 19, 2022), https://perma.cc/QF7P-E4FX.
19
18
federal elections in defiance of provisions of the State’s
constitution.”).
More fundamentally, Petitioners’ theory makes
no sense in the context of IRCs. IRCs are, like state
houses and senates, creatures of state constitutions.
And because all IRCs are established by voters via
initiative or referendum, their governing standards
and procedures tend to be codified in extensive detail
in state constitutional provisions. For example, the
Michigan Constitution details not only the
appointment structure and duties of its IRC but also
various particulars of its map-drawing process,
including extensive rules for public participation;
mandatory criteria the commission must “abide by . .
. in proposing and adopting each plan,” including a
prohibition on conferring “disproportionate advantage
to any political party”; voting thresholds for adopting
the plan; and backup voting rules if no single plan
satisfies the necessary threshold for approval. See
Mich. Const. art. IV, § 6. Other state constitutions
regulate IRCs with similar detail. 20 And, as in nearly
all IRC states, 21 the state supreme court has
See, e.g., Ariz. Const. art. IV, pt. 2, § 1(3)-(23); Cal. Const. art.
XXI, § 2; Colo. Const. art. V, §§ 44-44.5; N.J. Const. art. II, § 2;
N.Y. Const. art. III, §§ 4, 5-a; Va. Const. art. II, § 6a; Wash.
Const. art. II, § 43.
20
See Cal. Const. art. XXI, § 3(b); Colo. Const. art. V, § 44.5;
Haw. Const. art. IV, § 10; Idaho Const. art. III, § 2(5); N.J. Const.
art. II, § 2, ¶ 7; N.Y. Const. art. III, § 5; Va. Code Ann. § 30-400;
Wash. Const. art. II, § 43(10); Ariz. Minority Coal. for Fair
Redistricting v. Ariz. Indep. Redistricting Comm'n, 208 P.3d 676
(Ariz. 2009).
21
19
jurisdiction to enforce these provisions and to review
plans adopted by the commission. Id. § 6(19).
These state constitutional provisions characterize
what an IRC is in essence: a set of procedures and
standards for redistricting finely tuned by voters to
promote certain desired outcomes like transparency,
participation, impartiality, and partisan fairness.
Without any way to enforce these provisions in court,
commissioners and interested politicians could ignore
them without consequence, rendering IRCs unable to
fulfill their essential purpose. No one, thereafter,
would be likely to advocate for creation of an IRC
given the legislature’s monopoly control of
congressional redistricting subject to no judicial
oversight.
Petitioners do suggest that the Elections Clause
may allow state courts to review redistricting plans
for compliance with certain procedural but not
substantive constitutional provisions. Pet’rs’ Br. at
24-25. But, as some amici have ably explained,
substance and procedure are notoriously difficult to
disentangle, making it all but impossible for state
courts and redistricting entities to identify which
state constitutional provisions would be enforceable
and which would not. See, e.g., Br. for Conf. of Chief
Justices as Amicus Curiae Supporting Neither Party
at 23-27. This is especially true in the context of IRCs,
which are governed by a web of substantive and
procedural rules (and rules that fall somewhere in
between), all working in tandem to promote fair, nonpartisan-gerrymandered maps. For example, are
prohibitions on the use or consideration of party
20
registration and election results procedural or
substantive? See Ariz. Const. art. IV, pt. 2, § 1(15);
Mont. Code Ann. 5-1-115. What about provisions that
require commissioners to “favor” competitive districts,
Ariz. Const. art. IV, pt. 2, § 1(14)(F), or “abide by”
certain criteria in “proposing and adopting each plan,”
Mich. Const. art. IV, § 6(13)? IRCs cannot realistically
function unless all involved parties, including courts,
can discern which of these provisions are enforceable
and which are not—an unlikely scenario under
Petitioners’ proposal.
Even if it were possible to identify which IRC
regulations are substantive, the inability to enforce
these regulations would severely undermine IRCs.
Almost every IRC includes an explicit role for state
courts to check its work and ensure compliance with
mandatory standards and procedures. 22 Without such
judicial review, IRCs become purely symbolic
measures, unable to remedy the harms arising from
unconstitutional partisan gerrymanders.
In sum, IRCs are a promising reform—one that
this Court has endorsed—to curb partisan
gerrymandering and restore trust in the redistricting
process. Any embrace of Petitioners’ ill-founded
interpretation of the Elections Clause threatens to
render them unconstitutional or a nullity in practice.
22
See supra note 21.
21
C.
Voters Cannot Depend on State
Legislatures and Congress Alone to
Check Partisan Gerrymandering.
Any ruling in this case that leaves IRCs and state
courts unable to prevent or remedy congressional
partisan
gerrymandering
would
allow
this
antidemocratic practice to go effectively unchecked.
Although this Court in Rucho described federal
legislation as an “avenue for reform” that “remains
open,” 139 S. Ct. at 2508, history, precedent, and
common sense show that politicians are unlikely to act
against their own self-interest to limit partisan
gerrymandering.
Gerrymandering represents “an abuse of power
that, at its core, evinces a fundamental distrust of
voters, serving the self-interest of the political parties
at the expense of the public good.” League of United
Latin Am. Citizens v. Perry, 548 U.S. 399, 456 (2006)
(Stevens, J., concurring in part) (internal quotations
omitted). Polls show that nine in ten voters oppose
partisan gerrymandering, 23 and yet lawmakers have
done little to check the practice. Why would they?
When partisan gerrymandering benefits those in
power, there is little incentive for incumbent
legislators and map-drawers to act contrary to their
own self-interest. Because of these incentives, neither
Congress nor state legislatures provide a reliable
means of protecting voters against the clear
constitutional injuries that partisan gerrymandering
John Kruzel, American Voters Largely United Against
Partisan Gerrymandering, The Hill (Aug. 4, 2021),
https://perma.cc/CRH3-NEBZ.
23
22
inflicts. State legislatures that increasingly reflect
national partisan divisions will enact rather than
prevent partisan gerrymanders, and members of
Congress—the beneficiaries of this partisan
gerrymandering—are unlikely to curtail it.
Despite
strong
opposition
to
partisan
gerrymandering by voters, state legislatures are too
intertwined with their state congressional delegations
to check partisan gerrymandering. This is because
state elections and policymaking—and the legislative
candidates who sail on those winds—have become
increasingly driven by national interests. See Joshua
Zingher & Jesse Richman, Polarization and the
Nationalization of State Legislative Elections, 47 Am.
Pol. Rsch. 1036, 1047 (2019); Daniel Hopkins, The
Increasingly United States 13 (2018). This trend has
resulted in state legislatures that are “not sufficiently
independent of their national counterparts” and statelevel politics that is “overawe[d]” by national politics.
James A. Gardner, The Myth of State Autonomy:
Federalism, Political Parties, and the National
Colonization of State Politics, 29 J.L. & Pol. 1, 1
(2013). The politicization of issues at every level of
government has been largely one directional: the
“convergence of state and national political agendas
and positions [has been] characterized primarily by
state adoption of national political agendas and
positions rather than the other way around.” Id. at 19.
And because adherence to national political agendas
affects access to campaign dollars and the likelihood
of reelection, state legislators have strong incentives
to work on behalf of national party interests,
including by enacting partisan gerrymandered
23
congressional districts. Jake Grumbach, Laboratories
Against
Democracy:
How
National
Parties
Transformed State Politics 128-29 (2022).
Because state legislators generally have less time
and fewer policymaking resources than their federal
counterparts, they often turn to concentrated,
resource- and information-rich national partisan
interests to take on complex policymaking tasks. Id.
at 130-31. Redistricting is especially vulnerable to
this national party control because it is highly
technical and resource intensive, occurs in a very
short period of time, and has clear national
implications. See Alex Garlick, National Policies,
Agendas, and Polarization in American State
Legislatures: 2011 to 2014, 45 Am. Pol. Rsch., 941, 942
(2017). National party interests need only be involved
for a short while to lock in congressional maps that
make it harder for their political opponents to win for
an entire decade. This dynamic has borne out in
recent redistricting cycles. National partisan interests
have not been shy about using state legislatures as
chess pieces to control congressional composition, in
some cases taking the pen themselves to draw state
congressional district lines. See Robert Draper, The
League of Dangerous Mapmakers, The Atlantic (Oct.
2012),
https://perma.cc/G3XT-QP5K;
Samuel
Issacharoff, Gerrymandering and Political Cartels,
116 Harv. L. Rev. 593 (2002).
Indeed,
well-funded
national
political
organizations have come to serve as clearinghouses
for their party’s national partisan redistricting
strategy. See National Democratic Redistricting
24
Committee, “Our Work,” https://perma.cc/HDK3TVRY (“a centralized hub to fight for fair maps”);
National Republican Redistricting Trust, “About Us,”
https://perma.cc/F5K6-WZL8
(“coordinating
“nationwide redistricting strategy” for the Republican
Party). Partisan actors with more explicit ties to
Congress and national partisan offices also
participate actively in the congressional redistricting
process. For example, the committee responsible for
drawing Maryland’s “highly partisan” congressional
districts in 2011 was advised by Maryland
Congressman Steny Hoyer, the majority leader and
second-highest ranking Democrat in the House. See
Rucho, 139 S. Ct. at 2493. In 2021, former
Congressman and current Florida Governor Ron
DeSantis
led
that
state’s
hyper-partisan
gerrymander. Nathaniel Rakich & Tony Chow, Ron
DeSantis Drew Florida An Extreme Gerrymander,
FiveThirtyEight (Jul. 14, 2022), https://perma.cc/
6KF6-7SFT. And in Illinois, the Democraticcontrolled legislature created a highly gerrymandered
map that included a new long, skinny, and safely
Democratic district in which a former aide to
President Joe Biden and Illinois’s Democratic
governor is running. Sara Burnett, Illinois Dems
Embrace Gerrymandering in Fight for US House,
Associated
Press
(Oct.
28,
2021),
https://perma.cc/5H8S-WET9. When national parties
and actors are the authors and the beneficiaries of
25
gerrymandered maps, the odds of state legislative
action to limit the practice are long. 24
Whether driven directly by national parties or by
state legislators’ increasing alignment with national
parties, the behavior of state legislatures in recent
redistricting cycles undercuts any notion that they are
likely to curb congressional gerrymandering on their
own. State legislatures have consistently enacted
partisan gerrymanders, regardless of party. See supra
p. 10 (citing state court decisions invalidating 2020cycle
partisan
gerrymanders).
Where
state
legislatures can gerrymander, recent history has
shown that they will. State laws preventing or
limiting partisan gerrymandering, including those
establishing IRCs, have largely been enacted not by
state legislatures but via ballot initiative. And state
legislatures have routinely resisted those reforms. See
e.g., Utah S.B. 200, 2020 Gen. Sess. (Utah 2020)
(repealing citizen-enacted independent redistricting
commission); AIRC, 576 U.S. at 297 n.5 (describing
the state legislature’s “interference” with commission
“operations” and attempts to remove the commission’s
independent chair).
Congress is also unlikely to provide an enduring
remedy for partisan gerrymandering. To be sure, the
Elections Clause grants Congress broad authority to
regulate the drawing of congressional lines. It could
The national influence over state map-drawing also
demonstrates why it takes no “grand logical leap” to be concerned
about conflicts of interest in congressional redistricting even
though incumbent members of Congress do not literally draw
their own districts under state law. Contra RNC Br. at 8 n.3.
24
26
take the pen and draw a state’s district lines itself or
prohibit partisan gerrymandering of congressional
districts, AIRC, 576 U.S. at 812—but only if it wanted
to. To this point, Congress has failed to do so, and
there is little reason to believe that will change.
A Congress full of legislators entrenched in power
by the extreme partisan gerrymanders of the last two
decades has all the wrong incentives to undo the
system keeping them in power. See Rucho, 139 S. Ct.
at 2523-24 (Kagan, J., dissenting). Legislators’
instinct for self-preservation, coupled with increased
fidelity to national party, tend to override any efforts
to respond to constituents’ anti-gerrymandering
preferences. Stephen Ansolabehere et al., Candidate
Positioning in U.S. House Elections, 45 Am. J. Pol. Sci.
136, 136 (2001). (“[W]hen candidates . . . balance the
broad policy views of the local district and the national
party, the national party dominates.”). In other words,
relying on Congress to guard against partisan
gerrymandering is leaving to the foxes the
responsibility of repairing the gaping hole in the side
of the henhouse.
History proves the point. Congress has rarely
used its Elections Clause authority to enact
substantive standards for congressional redistricting.
While the Apportionment Act of 1842 and its updates
have sought to end the unfairness inherent in at-large
congressional elections by mandating single-member
districts, see Vieth, 541 U.S. at 276 (plurality opinion),
the durable partisan gerrymandering enabled by
single-member districts continues to plague voters to
the present. No recent congressional proposal to curb
27
the practice has ever passed both chambers, let alone
with bipartisan support. Indeed, the latest proposal
failed in the Senate after a version of it passed the
House of Representatives in 2021 with unified
Republican opposition. See S.B. 2747, 117th Cong.
(2021-22); H.R. 1, 117th Cong. (2021-22). The bill
currently has no prospects of becoming law. See Carl
Hulse, After a Day of Debate, the Voting Rights Bill is
Blocked in the Senate, N.Y. Times (Jan. 19, 2022),
https://perma.cc/YCC4-MT8U.
Even if one Congress were able to address
partisan gerrymandering head on, the self-serving
interests and incentives would remain, and any
protections could be undone by future Congresses. In
any event, the mere possibility of congressional action
is no reason to eliminate or undermine valid checks on
partisan gerrymandering from state courts and IRCs.
Whether turning to state legislatures or to Congress,
the political process is unlikely to provide a durable
remedy for the ongoing ills of partisan
gerrymandering.
III. Unchecked
Partisan
Gerrymandering
Would Exacerbate Polarization, Extremism,
and Dysfunction.
By removing checks on partisan gerrymandering,
as well as other antidemocratic state legislative
action, Petitioners’ interpretation of the Elections
Clause would accelerate the vicious cycle of
polarization, extremism, and dysfunction already
imperiling the health of American democracy.
Partisan gerrymandering increases polarization
by rendering general elections uncompetitive, shifting
28
electoral competition to primary elections. Using the
recent technological developments noted above,
partisan map drawers can not only maximize their
statewide partisan advantage, but also secure as
many “safe” seats as possible. Ashlyn Still, Harry
Steven & Kevin Uhrmacher, Competitive House
Districts Are Getting Wiped Off the Map, Wash. Post
(Nov. 23, 2021), https://perma.cc/3QG7-SRMZ. The
Cook Political Report estimates that fewer than seven
percent of House districts will be competitive this
November, 25 and six of those have already been
“drawn out of existence” in the current redistricting
cycle. 26
As competitive districts disappear and safe seats
abound, a fundamental premise at the heart of
representative government is lost: that changes in
electoral support lead to changes in who holds power.
As Representatives Mike Gallagher (R-WI) and Ro
Khanna (D-CA) have explained, “[t]he less
competitive a district becomes, the more general
elections become formalities.” 27 To win election,
candidates in safe districts must redirect their
attention to the contest determinative of the electoral
outcome: the primary. There, turnout is more limited
and voters skew toward the ideological poles. Andrew
2022 House Race Ratings, Cook Pol. Rep. (Oct. 11, 2022),
https://perma.cc/U8HN-M4NF (categorizing only 31 of 435
House races as “toss-ups”).
25
26
What Redistricting Looks Like in Every State, supra note 19.
Mike Gallagher & Ro Khanna, Two Congressmen Offer a
Bipartisan Plan to ‘Drain the Swamp’, USA Today (June 1,
2017), https://perma.cc/HD2M-LNTX.
27
29
B. Hall, What Happens When Extremists Win
Primaries?, 109 Am. Pol. Sci Rev. 18, 18 (2015). As a
result, the victors of these contests are often
candidates far more ideologically extreme than their
voters at large. Clifton B. Parker, Politicians More
Polarized Than Voters, Stanford Political Scientist
Finds, Stanford News Serv. (Dec. 20, 2017),
https://perma.cc/EF2J-5G9P.
Thus, once in office, candidates elected to safe
gerrymandered districts are beholden not to the
average voter but rather to a small, vocal minority,
representing the most extreme wings of their party. 28
As “single-minded seekers of reelection,” Members of
Congress behave in ways they believe will satisfy the
factions necessary to keep them in office. David
Mayhew, Congress: The Electoral Connection 5-6
(1974). For the growing number of representatives
from partisan gerrymandered districts, those
constituencies are their primary voters, and the party
itself, when it holds the unchecked power in the state
legislature to draw district lines.
As a result, Members of Congress from both sides
of the aisle describe an increasingly polarized
environment where representatives have little
incentive “to talk and cooperate, much less
compromise” lest they face a primary challenger from
their party’s outer flank. Earl Blumenauer & Jim
See Adam Raviv, Unsafe Harbors: One Person, One Vote and
Partisan Redistricting, 7 U. Pa. J. Const. L. 1001, 1068 (Apr.
2005); Daniel D. Polsby & Robert D. Popper, The Third Criterion:
Political Compactness as a Procedural Safeguard against
Partisan Gerrymandering, 9 Yale L. & Pol’y Rev. 301, 307 (1991).
28
30
Leach, Opinion, Redistricting, a Bipartisan Sport,
N.Y. Times (July 8, 2003), https://perma.cc/7BTUAQ7R; see also Richard C. Barton, Congress is
Polarized. Fear of Being ‘Primaried’ Is One Reason.,
Wash. Post (June 10, 2022), https://perma.cc/76NGU8RX. Polarization in state legislatures has likewise
“increased substantially in recent decades,” as more
extreme candidates face less general election
competition and fare better in primaries. Cassandra
Handan-Nader, Andrew C. W. Myers & Andrew B.
Hall, Polarization and State Legislative Elections
(Stan. Inst. For Econ. Pol’y Rsch., Working Paper No.
22-05, 2022).
Due to the polarization caused by these
artificially safe districts and the attendant fear of
angering extreme wings of each party, compromise in
gerrymandered legislative bodies is often nonexistent.
Rather, the two parties “form themselves in action
that is reaction”—when one wins, their opponents
lose—and in this zero-sum environment “do battle
every day in every way.” Harvey C. Mansfield, Our
Polarized Politics Dimly Seen, Nat’l Affs. (Winter
2020), https://perma.cc/K857-KEF2.
This intractable party conflict has created
gridlock so impenetrable that it hinders the
functioning of government institutions and heightens
the risk of political violence. Indeed, as the partisan
polarization of its members has increased, Congress
has increasingly been unable to perform basic
responsibilities,
including
budgeting
and
appropriations. Francis Lee, How Party Polarization
Affects Governance, 18 Ann. Rev. Pol. Sci. 261, 270
31
(2015). Partisan warfare has also resulted in
“repeated spectacles of high-stakes brinksmanship
over the debt limit and other policies” including a
downgrade of U.S. Treasury debt and four federal
government shutdowns since 2010. Id. at 276. And
most disturbingly, the deleterious effects of
polarization may not be limited to gridlock: Recent
political science research has found that “more . . .
polarized democracies are more likely to experience
greater levels of political violence” as trust and
cooperation between parties break down. James A.
Piazza, Political Polarization and Political Violence
(July 20, 2022) (Working Paper), https://perma.cc/
D3UK-FBH6.
With compromise off the table, members of
gerrymandered legislatures also increasingly seek to
limit the democratic prospects of their opponents by,
for example, drawing them unwinnable districts. See
Mansfield, supra p. 30 (“Party contention is mainly
about the rules and not merely within the rules as of
a game.”). Indeed, as the parties grow more and more
polarized, they have more incentives to change the
rules of the game to “ensure that they win and their
opponents lose.” Jacob M. Grumbach, Laboratories of
Democratic Backsliding 180 (Apr. 20, 2022) (Working
Paper), https://perma.cc/AM5U-U6S5. “[L]egislators
under one partisan gerrymander will enact new
gerrymanders
after
each
decennial
census,
entrenching themselves in power anew decade after
decade.” Common Cause v. Lewis, No. 18 CVS 014001,
2019 WL 4569584, at *125 (N.C. Super. Ct. Sept. 3,
2019). In doing so, they guarantee their own partisan
32
success and restart the cycle
extremism, and dysfunction.
of polarization,
Although Amici’s primary focus here is on
partisan gerrymandering, it is important to
acknowledge that Petitioners’ theory would also
remove essential checks on the other important areas
of election regulation that keep the cycle from
spiraling out of control. Absent oversight from state
courts, polarized state legislatures would also be able
to ensure their own partisan advantage by enacting
voting rules that disproportionately restrict the
registration and voting opportunities of disfavored
voters. The theory would also potentially remove the
people’s check on antidemocratic state legislative
action in many states by threatening to invalidate
pro-voter policies enacted through the initiative
process. 29 See, e.g., AIRC, 576 U.S. 787.
Removing checks on antidemocratic action in
these areas stands to reduce participation and erode
trust in the democratic process, just as partisan
29
Among the myriad voter-enacted policies threatened by
Petitioners’ theory are, for example, independent redistricting
commissions, see supra; congressional redistricting standards,
Fla. Const. art. III, § 20(a); restoration of voting rights for people
with felony convictions, Fla. Const. art. VI, § 4; automatic voter
registration, Nev. Rev. Stat. §§ 293.5727-293.5767; primary
reform, Colo. Prop. 108, Unaffiliated Elector Initiative (2016)
(approved); ranked-choice voting, Alaska Ballot Measure 2,
Alaska’s Better Elections Initiative (2018) (approved); same-day
voter registration, Me. Question 1, Same-Day Registration Veto
Referendum (2011) (approved); and no excuse or universal voting
by mail, Mich. Const. art. II, § 4; Or. Measure 60, Or. Vote by
Mail for Biennial Elections Act (1998) (approved).
33
gerrymandering has done. See Morris P. Fiorina &
Samuel J. Abrams, Political Polarization in the
American Public, 11 Ann. Rev. Pol. Sci. 563, 582
(2008);
Larry
Hogan,
Opinion,
Partisan
Gerrymandering Has No Place in Our Democracy,
Wash. Post (Mar. 27, 2018), https://perma.cc/4TWEB5VL. It will likewise contribute to partisan
polarization, creating the incentive and opportunity
for further antidemocratic action. Thus, Petitioners’
theory of unchecked state legislative action in
congressional redistricting and other areas of election
would intensify the polarization spiral already
threatening to grind American democracy to a halt.
34
CONCLUSION
The Court should respect the role and power of
state courts in our constitutional system, honor the
checks on partisan gerrymandering this Court
promised would remain, and avoid exacerbating the
harm that polarization is already doing to American
representative democracy.
October 25, 2022
Respectfully submitted,
Paul M. Smith
Counsel of Record
Adav Noti
Kevin P. Hancock
Aseem Mulji
CAMPAIGN LEGAL CENTER
1101 14th St. NW, Ste. 400
Washington, DC 20005
(202) 763-2200
psmith@campaignlegal.org
Counsel for Amici Curiae
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.