Many state constitutions embody language that would restrict drawing maps for max partisan benefit, consultants say.
By Jonathan Shorman for Stateline
After Missouri lawmakers handed a gerrymandered congressional map this fall, opponents submitted greater than 300,000 signatures in search of to drive a statewide vote on whether or not to overturn the map. However Republican state officers say they’ll use the map within the meantime.
Missouri courts now seem prone to weigh in.
“If we need to continue to litigate to enforce our constitutional rights, we will,” stated Richard von Glahn, a progressive activist who leads Folks Not Politicians, which is main the marketing campaign opposing the gerrymandered map.
As some states have interaction in a unprecedented redraw of congressional districts forward of the 2026 midterm elections, state courts might determine the destiny of the brand new maps. President Donald Trump has pushed Republican state lawmakers to gerrymander their states’ congressional maps, prompting Democratic state lawmakers to reply in sort.
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Nationwide, state judges are poised to play a pivotal position in adjudicating authorized challenges to the maps, which have been drafted to maximise partisan benefit for both Republicans or Democrats, relying on the state. Maps are usually solely redrawn as soon as a decade following the census.
Whereas some state courts have lengthy heard map-related lawsuits, the U.S. Supreme Court docket has all however taken federal courts out of the enterprise of reviewing redrawn maps this 12 months. On Dec. 4, a majority of the courtroom allowed Texas’ new map, which seeks to safe 5 extra U.S. Home seats for Republicans, to proceed. A federal lawsuit in opposition to California’s new gerrymandered map, drawn to favor Democrats, hasn’t reached the excessive courtroom.
A girl holds an indication as she joins others throughout a rally to protest in opposition to redistricting hearings on the Texas Capitol in Austin on July 24.
The U.S. Supreme Court docket’s temporary, unsigned majority resolution voiced concern about inserting federal courts into an “active primary campaign,” although Texas’s main election will happen in March. Critics of the courtroom’s resolution have stated it successfully forecloses federal challenges to this 12 months’s gerrymanders. The justices may additionally difficulty a choice subsequent 12 months that makes it tougher to problem maps as racially discriminatory.
State courts are taking heart stage after gerrymandering opponents have spent many years encouraging them to play a extra lively position in policing maps that had been drawn for partisan benefit. These efforts accelerated after the U.S. Supreme Court docket in 2019 restricted the ability of federal courts to dam such maps.
“Basically, every one of the 50 states has something in its constitution that could be used to constrain partisan gerrymandering,” stated Samuel Wang, director of the Princeton Gerrymandering Challenge.
State constitutions, that are interpreted by state supreme courts, usually have language that echoes the fitting to freedom of speech and affiliation discovered within the First Modification to the U.S. Structure, Wang stated. Additionally they embody a proper to equal safety beneath the legislation, much like the 14th Modification.
Some state constitutions assure free and truthful elections, language that doesn’t seem within the U.S. Structure. Thirty states have some type of a constitutional requirement free of charge elections, in line with the Nationwide Convention of State Legislatures.
Not less than 10 state supreme courts have discovered that state courts can determine instances involving allegations of partisan gerrymandering, in line with a 2024 evaluation by the State Democracy Analysis Initiative on the College of Wisconsin Regulation Faculty.
Thus far this 12 months, California, Missouri, North Carolina, Ohio, Texas and Utah have adopted new congressional maps. New maps additionally seem attainable in Florida, Maryland and Virginia. A handful of different states — Alabama, Louisiana, New York and North Dakota — might have to vary their maps relying on the result of courtroom instances.
A few of these new or potential maps may face authorized obstacles. Florida, New York and Ohio all have state supreme courts which have beforehand discovered issues with partisan gerrymanders. Maryland Democrats have up to now not moved ahead with a gerrymander, partially due to fears of an antagonistic resolution from the state Supreme Court docket.
4 state supreme courts — together with in Missouri — have decided that they can not evaluation partisan gerrymandering claims, although state courts should take into account challenges on different grounds, corresponding to whether or not the districts are compact or contiguous.
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In Missouri’s case, courts may additionally clear the best way for a referendum vote over the brand new map, which is meant to drive out U.S. Rep. Emanuel Cleaver, a Democrat who has represented Kansas Metropolis in Congress for the previous 20 years. Republicans at the moment maintain six of the state’s eight congressional districts.
The map already faces a bevy of lawsuits, most notably over whether or not state officers should depend some 103,000 referendum signatures gathered earlier than the governor signed the map into legislation; no less than 106,000 signatures are wanted to ship the map to voters.
Opponents of the brand new map have additionally filed lawsuits asserting the Missouri Structure prevents redistricting with out new census knowledge and that an space of Kansas Metropolis was concurrently positioned into two separate congressional districts.
Missouri Republican Secretary of State Denny Hoskins’ resolution this month (counting on an opinion from Missouri Republican Lawyer Basic Catherine Hanaway) to implement the brand new congressional map, regardless of a submitted referendum petition, is anticipated to turn out to be the most recent authorized flashpoint. Opponents of the map argue it’s now paused beneath state legislation.
Hoskins spokesperson Rachael Dunn stated in a press release to Stateline that native election officers have till late July to confirm referendum signatures — months after candidate submitting ends March 31 and days earlier than the Aug. 4 main election. At that time, blocking the brand new map can be all however inconceivable, even when map opponents have gathered sufficient signatures to drive a vote.
“Once signatures are all verified, the Secretary will certify the referendum based on constitutionality and verification,” Dunn wrote.
Hanaway’s workplace didn’t reply to questions.
Breaking out of lockstep
As federal courts restrict their evaluation of gerrymandering due to U.S. Supreme Court docket selections, some state supreme courts are reluctant to wade into the problem due to a follow known as “lockstepping.”
State supreme courts usually interpret their state constitutions consistent with — or in lockstep with — how the U.S. Supreme Court docket views comparable language within the U.S. Structure. As a result of the U.S. Supreme Court docket has declined to restrict partisan gerrymandering, some state supreme courts have additionally declined to impose limits.
Gerrymandering opponents have used quite a lot of arguments over time to attempt to prod state supreme courts out of lockstep. They’ve emphasised variations in wording between state constitutions and the federal one, and provisions in state constitutions — such because the free elections requirement — not discovered within the U.S. Structure.
Typically these arguments work — and generally they don’t. The North Carolina Supreme Court docket in 2022 dominated in opposition to partisan gerrymandering. However after two Republicans have been elected as justices that fall, the courtroom reversed itself months later.
“Across the country, we have seen advocates turn to state supreme courts, and state courts in general, for state constitutional arguments against gerrymandering or voter suppression more broadly. And it’s been met with mixed success,” stated Sharon Brett, a College of Kansas affiliate professor of legislation. In 2022 as litigation director of the American Civil Liberties Union of Kansas, she unsuccessfully argued a case earlier than the state’s excessive courtroom difficult Kansas’ congressional map.
Demonstrators maintain indicators throughout a rally protesting a proposed election redistricting map on Oct. 21 in Raleigh, N.C.
In states the place legislatures draw congressional maps, some lawmakers argue that state constitutions shouldn’t be interpreted to curb legislative authority over mapmaking. Court docket-imposed limits quantity to violations of the normal separation of powers, they are saying, with the judiciary overstepping its authority to intervene in politics.
“We expect them to be nonpartisan. We expect them to be unbiased. We expect them to be fair. We expect them to read the constitution and to protect or at least respect the separation of powers,” stated Utah Republican state Rep. Casey Snider, talking of Utah courts throughout a flooring speech earlier this month.
In Utah, state courts waded by way of a yearslong authorized battle over whether or not state lawmakers should undertake a non-gerrymandered map. After the Republican-controlled legislature repealed and changed an impartial redistricting course of, the Utah Supreme Court docket final 12 months dominated lawmakers had violated the state structure.
A Utah district courtroom decide in November then adopted a congressional map that may doubtless lead subsequent 12 months to the election of a Democrat. The state’s 4 congressional seats are at the moment all held by Republicans.
“What we would like is them to redistrict based on population — fairly,” Katharine Biele, president of the League of Ladies Voters of Utah, stated of state lawmakers.
Republican Gov. Spencer Cox known as the Utah legislature into particular session earlier in December to answer the decide’s resolution. Lawmakers pushed again candidate submitting deadlines in hopes that an enchantment to the Utah Supreme Court docket will end in a choice overturning the decide’s adopted map.
Additionally they handed a decision condemning the judiciary.
Constitutional considerations
Because the Indiana legislature weighed a gerrymandered map to spice up Republicans this month, some lawmakers have been reluctant to constrain state courts. Democrats at the moment maintain two of the state’s 9 congressional districts.
The GOP-controlled Indiana Senate voted down the map in a serious setback to Trump’s nationwide redistricting push. The vote got here after a flooring debate the place opponents raised considerations about limiting courtroom involvement; the laws included a provision sending any authorized problem on to the Indiana Supreme Court docket, bypassing a jury trial.
Indiana Republican state Sen. Greg Walker stated the measure violated the state structure, which ensures an “inviolate” proper to a jury trial in all civil instances. “In legal terms, ‘inviolate’ has the implication of being sacred, as opposed to being just a piece of the law,” Walker stated on the ground.
State Sen. Mike Gaskill, a Republican who sponsored the map, stated throughout a speech that Indiana residents would profit from a fast course of to resolve authorized challenges. “Both sides, in any case, want them to be settled quickly so that they don’t cause chaos and interruptions in the elections process,” he stated.
If the map had handed, opponents would have doubtless attacked the measure utilizing a provision of the Indiana Structure that requires “free and equal” elections.
