Next November, tens of millions of people across the country will head to the polls and cast their votes for their Representatives to Congress. But a controversial legal proposal about the role of state legislatures in federal elections – the “independent state legislature” argument (ISL) now under consideration by the U.S. Supreme Court – could influence the results of this imminent election before voters mark a single ballot.
In the last decade, the Supreme Court has gutted federal voter protection laws that have existed, and worked, since the Civil Rights Movement of the 1960s. The reduced federal oversight of state election rules (by both the federal courts and the Department of Justice) has combined with partisan gerrymandering (and the promotion of the ISL argument) to produce a perfect storm for the manipulation of congressional districts.
Whichever way the Supreme Court ultimately rules on the ISL argument, the path to fair congressional districts that reflect the will of voters could run through state legislatures, state constitutions, and state supreme courts. Voting-rights litigation may soon face a fork in the road, beyond which most, if not all, issues concerning federal elections will be resolved in a two-step process grounded in the fact that, in most states, state legislatures create congressional district-maps and enact the processes and rules for voting in federal and state elections. The two-step approach would unfold like this:
- First, plaintiffs challenging gerrymandered state legislative maps will ask state courts to decide whether those maps meet voting-rights requirements of state constitutions and statutes. The ISL argument would pose no challenge to these types of cases because they concern state, not federal, legislative districts.
- Second, a state supreme court could then order legislative maps that were improperly created along racial or political lines to be redrawn. Once redistricted, those new, fairer state legislatures would enact laws creating the maps and other voting processes (for instance, polling locations and hours and registration requirements) for federal
A Reduced Role for Federal Oversight of Voting Rights
For decades, federal courts were the leading venue for litigation to protect and expand voting rights in federal, state, and local elections, chiefly by enforcing Section 5 and the other provisions of the 1965 Voting Rights Act. In conjunction with Section 4(b), Section 5 requires states with a long history of suppressing voting by Black citizens to seek approval of their legislative districting plans and other voting laws and practices from the U.S. Department of Justice before being allowed to implement them. (Section 4(b) of the VRA identifies the states subject to the DOJ “pre-clearance” requirement.)
But in a 2013 case, Shelby County v. Holder, the Supreme Court found that the Section 4(b) criteria were based on an outdated formula, and thus were unenforceable (a highly disputable conclusion based on the Court’s decision to ignore the evidence of ongoing racial suppression in voting). That decision paved the way for the formerly covered states to enact new voter-suppression laws aimed at decreasing the votes of Black citizens by increasing the obstacles and costs of voter registration and voting itself through measures like photo-ID laws and limitations on early voting, and by wrongfully purging voters from the rolls.
The Use of Partisan Gerrymandering to Reinforce Other Voter-Suppression Tactics
Meanwhile, litigation concerning partisan political gerrymandering was also progressing toward the Supreme Court. Partisan gerrymandering – the process of manipulating the boundaries of legislative districts to strengthen one political party at the expense of other parties – has been a political tactic for more than 200 years. Yet in recent years, the tactic has increasingly relied on powerful information technology and been turbocharged by algorithms that carve districts with unprecedented precision, in order to maximize partisan outcomes and lock in long-term control of legislative or congressional seats despite a majority favoring the other party.
Those who promote partisan gerrymandering use data from historic voting patterns to concentrate and dilute voters by “packing” and “cracking” them. A simple hypothetical shows how gerrymandering can turn runaway elections in favor of one candidate into jump-ball events or lock in a legislative supermajority – even for a minority party.
Suppose a state legislature decides to create 10 legislative districts for the 2000 citizens in the state, of whom 1000 are voters. By reviewing results in recent elections, the legislature determines there are 500 reliably Purple voters and 500 reliably Orange voters in the state.
On these facts, the legislature might opt for “partisan symmetry.” It can build 10 districts with 200 citizens, including 50 Purple voters and 50 Orange voters and let the shifting policy – and candidate – preferences of voters determine the outcomes of elections in those districts.
Figure 1 shows an example of partisan gerrymandering with legislative districts equally controlled by the Purple and Orange parties.
But suppose that the legislature instead wants to favor Purple voters; it can draw a map that puts 90 Orange voters in two of the 10 districts (“packing”) and 40 Orange voters in each of the other eight districts (“cracking”) while it puts 60 Purple voters in the eight districts with 40 Orange voters and ten Purple voters in each of the two districts with 90 Orange voters. Each district still has 100 voters but, if prior voting patterns persist, the Purple party will win a supermajority of eight districts and the Orange party will win only two districts. The same process might apply if the state wishes to favor Orange voters over Purple voters.
Figure 2 shows supermajority control with eight legislative districts controlled by the Purple party and two by the Orange party.
Supermajority Control By a Minority Group
An even more extreme partisan outcome is feasible: supermajority control of the legislature for a minority party. Suppose the state has 450 reliably Purple voters and 550 reliably Orange voters. The legislature can construct seven districts with a 60-40 Purple-Orange split and three districts with a 90-10 Orange-Purple split. If historical voting patterns continue in this scenario, the minority Purple party will win a seven to three majority in the state legislature with 45 percent of the voters.
Figure 3 shows an example of supermajority control over legislative districts by the minority Purple party.
It’s important to note that partisan gerrymandering is also a tool for racial gerrymandering. (See footnotes 24-25 and 27-29 for the demographic data-sources in this article by Janai Nelson.) Because majorities of voters of color have been aligned primarily with the Democratic party in recent decades, any partisan gerrymander that disadvantages Democratic voters will likely disserve voters of color.
In the actual United States, Republicans have mastered the technique, leading to lawsuits challenging partisan gerrymandering. Lower federal courts have adopted various tests to assess these claims and to render more representative legislative maps. However, in Rucho v. Common Cause, the Supreme Court controversially decided it lacked the power to even review – let alone prohibit – partisan gerrymandering, thus signaling to the lower federal courts and litigants that such gerrymandering would be essentially immune from federal judicial oversight. Recently, the Supreme Court agreed to hear an appeal from a lower court’s ruling that a district in South Carolina was created through illegal racial gerrymandering. This case, in addition to another case from Alabama that is also awaiting decision, could render it impossible to address racial gerrymanders in addition to partisan gerrymanders.
Taken together, the Supreme Court’s decisions in Shelby and Rucho have made federal courts less hospitable forums to voting-rights litigation (especially where gerrymandering is concerned) and increasingly forced voting-rights advocates to attack barriers to voting through state-level legislation and litigation in state courts. In states that favor facilitating access to voting, voting-rights advocates have expanded access to the ballot box by passing new laws or updating existing ones. Minnesota, for example, recently enacted a suite of amendments to its voting laws to lower barriers to registration and voting (summarized here and here).
Voting rights advocates are also using existing state constitutions and laws in state courts to attack barriers to voting, sometimes successfully – but sometimes not. North Carolina is a recent example the old saying that, for voting-rights purposes, “elections matter.”
In February 2022, the North Carolina supreme court held that the state’s 2020 congressional re-districting map was unlawful partisan gerrymandering. Republican-aligned parties appealed this decision to the U.S. Supreme Court in a case called Moore v. Harper, which showcases a novel, and constitutionally baseless, argument called the “independent state legislature ‘doctrine.’”
The Independent State Legislature Argument
In Moore, the petitioners argued that the North Carolina supreme court had no authority to review, let alone strike down, the congressional district map drawn by the state legislature, based on an untested and highly controversial hypothesis: that the U.S. Constitution provides that, within a state, the only entity that can regulate federal elections is the state legislature.
This “independent state legislature” argument rests on the proposition that, for federal voting rights, procedures, and laws, Article I, Section 4, Clause 1 of the Constitution grants to state legislatures alone discretion in federal voting processes that is unreviewable by state courts and shielded from executive veto by the governor, subject only to congressional oversight. (The roles of state legislatures and Congress in federal elections are expressly defined in Section 4, Clause 1: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing [sic] Senators.”) On this language, the petitioners argue that only Congress can regulate congressional maps created by state legislatures, despite the longstanding role state courts and governors have played throughout U.S. history in checking state legislative election laws through court decisions and vetoes. During the 2020 presidential election, for example, the Pennsylvania supreme court extended the deadlines for acceptance of mail-in ballots to accommodate the increased numbers of mail ballots expected as a result of pandemic disruptions of in-person voting.
For now, speculation about the ISL argument might be merely academic, at least based on the particular facts of Moore.After North Carolina voters installed a Republican majority on the state supreme court in the 2022 midterm elections, the state supreme court reheard that decision and reversed itself – without any new facts or briefing. While the Supreme Court heard oral argument in Moore late last year, the Justices may well decide the case is moot and dismiss it. Regardless, even if the ISL theory fails in Moore, other states are following in North Carolina’s footsteps, and the idea will likely make its way back to the Court before too long.
Turning to the States to Protect Voting Rights and Stop Partisan Gerrymandering
Even under the ISL argument, federal courts would retain the power to review and resolve conflicts between congressional and state legislation about federal voting. However, the Supreme Court has so gutted federal voting protections that it’s hard to see where and how federal judicial oversight might be effective in protecting voting rights without amendments to the Voting Rights Act aimed at racial and political gerrymandering wherever they occur. If Congress were somehow to enact updated criteria for Section 4(b) of the VRA and specific conditions for House and Senate elections (other than location for Senatorial elections), including extended early and weekend voting and permissive, rather than restrictive, ID and registration requirements, federal litigation and judicial oversight of voting rights and processes might fruitfully increase again. Amendments to the VRA, however, seem unlikely if Republicans control one or both chambers of Congress.
Meanwhile, with federal oversight on the ropes, state legislatures, constitutions, and courts might hold the keys to restoring voting rights and fighting partisan gerrymandering. Wisconsin provides an example of how voting-rights cases might play out in state courts where the electorate is closely divided, even if the Supreme Court decides to establish the ISL argument as a legal doctrine governing federal elections.
Last month, voters in the Badger State elected a new state supreme court justice aligned with Democrats. There is a two-step path the state supreme court can follow to nullify the current state and congressional legislative maps in Wisconsin. (The state legislative map is highly favorable to Republicans – so favorable in fact that it is identified as “supermajority gerrymandering” – a state with an equally divided electorate that votes in similar numbers for each party’s candidates but nevertheless produces, via partisan gerrymandering, a lopsided, often veto-proof, state legislative majority for one party.)
In step one, the Wisconsin supreme court might find that the Wisconsin map of state legislative districts is invalid under the state constitutional and state election law and require the legislature to design and implement a new, less politically gerrymandered map (that is also, in effect, less racially gerrymandered). This approach does not implicate the ISL argument because it invokes only the state constitution and laws that govern districting for the state legislature. Then, in step two, assuming a new state legislative map is established, and voters elect a state legislature agreeable to creating a fairer map for congressional election districts, the voters of Wisconsin will get a congressional delegation more representative of voters and voting patterns in Wisconsin.
This approach could stretch well beyond Wisconsin to other states where, for example, Republicans currently control state legislatures, but Democrats are winning statewide elections, especially for state supreme court positions. There is a caveat: the conditions for state-level erasure of partisan gerrymandering and other voting burdens probably exist in only a small number of states, where elections for statewide office are trending in favor of whichever party has been disadvantaged by gerrymandering in the state legislature. Nevertheless, in an era where federal and state elections in battleground states can be decided by hundreds of votes and those battleground states can dictate the outcome of presidential elections through the Electoral College, the importance of even small enhancements of voting rights can change the results of an election.
While it remains to be seen how the U.S. Supreme Court will respond to the ISL argument, the route to less racially or politically gerrymandered congressional districts can pass through remapping state legislative districts – and critical masses of voters coming to the polls to accomplish those outcomes. This is more proof – not that we need it – that elections matter.