Opinion: U.S. Supreme Court should allow federal judges, not state courts, to police congressional gerrymandering

Political expediency will then prevail. Principles will be arbitrarily applied according to partisan swings in state legislatures and in state district and supreme courts, and be subject to constant litigation.

In Moore v. Harper, the North Carolina Supreme Court threw out a redistricting map created by the Republican-controlled legislature that likely would have resulted in the GOP winning at least 10 of 14 congressional seats in the 2022 election. The court-imposed map resulted in the parties evenly splitting the 14 seats. Meanwhile, state courts threw out an equally partisan map favoring Democrats in New York and other maps in Alaska, Maryland and Ohio.

Although the U.S. Supreme Court refused to block the state court-imposed North Carolina map for 2022, Justices Samuel Alito, Neil Gorsuch, Brett Kavanaugh and Clarence Thomas have indicated sympathy for the idea that state legislatures, not state courts, should have ultimate authority in these instances.

Section 1 of Article I of the U.S. Constitution assigns responsibility for regulating congressional elections to the state legislatures, subject to laws made by Congress. Now North Carolina Republicans are asking the Supreme Court to effectively prohibit state courts from reviewing legislatures’ redistricting decisions.

Gerrymandering and racial fairness are tough issues. People with good minds and of good will can have quite different views about what is fair.

After the 2020 U.S. Census, voters expressed their sympathies by awarding Republicans control of 30 state legislatures and at least initial control over most congressional redistricting decisions.

Litigation since has reached epidemic proportions. As of February 2023, the Brennan Center cataloged 73 cases in 27 states challenging congressional and legislative redistricting maps over allegations of partisan gerrymandering or racial discrimination.

Progressive media warn that a finding in favor of North Carolina Republicans would permit GOP state lawmakers to steal presidential elections. But Article 4 of the Constitution and the Moore case focus on the methods for electing members of Congress, not electors in presidential elections. Once voters speak on Election Day, states cannot designate alternative slates. Federal statutes only empower state legislatures to designate a slate if an election fails owing to a natural disaster or similar catastrophe.

Moore could upend independent commissions created to perform redistricting tasks, especially those established by referendum.

Leaving redistricting to state legislatures is no more political than constant litigation, because the judicial branches of most state governments are hardly free of partisanship. Moreover, commissions are remote and not accountable to voters.

Most states select supreme court justices and judges through elections or gubernatorial appointments. The North Carolina map drawn up by the Republican legislature was found acceptable by the Wake County Superior Court. But the North Carolina Supreme Court that threw it out on appeal was selected in partisan elections and the Democrats held a 4-3 majority.

Progressives argue that the Independent State Legislature Theory (ISLT) is outside our historical traditions. However, so was the outcome in Obergefell v. Hodge, which established a federal right to gay marriage.

Progressives have argued that the ISLT could lead to separate rules for congressional elections and state offices and confuse voters. These critics appear to have done an internet search for Section 4 and not read Article I in its entirety.

Section 2 of the Constitution states that electors for members of congress “shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.” The rules that apply for the state assembly must also apply for the House of Representatives. The Constitution’s framers famously distrusted state lawmakers, hence the review of state courts is necessary. But the framers handled this in Section 4 by authorizing Congress to check the power of state legislatures.

There’s the rub. Writing a law to combat partisan gerrymandering, ensure adequate minority representation and create reasonably compact districts requires weighing competing objectives and judgements that are not easily reducible to rules. But for a national legislature, a common set of guiding principles should apply across the states with considerable deference to elected legislatures.

In Rucho v. Common Cause, the Supreme Court ruled that policing partisan gerrymandering is inherently political, nonjusticiable by federal courts and that the Constitution’s framers chose to empower the state legislatures “expressly checked and balanced by the Federal Congress.”

Justice Elena Kagan in dissent wrote this sidestepped the tough question of ensuring that all citizens may participate in the political process to advance their beliefs and choose their political representatives.

Effectively, the Court majority left policing gerrymandering by state legislatures and redistricting commissions to state courts, but the surrounding issues are no more or less justiciable in those forums than in federal courts.  

A recent election has changed the composition of the North Carolina Supreme Court. It has decided to rehear Moore, and the U.S. High Court in turn may decide to defer the issue.

But the Supreme Court ought to turn the review of state maps over to the federal courts. We need a federal standard for states to apply when drawing Congressional district boundaries. Lifetime tenure makes federal judges much less subject to partisan pressure than state courts, allowing more reasonable, nationally consistent principles to emerge.

Peter Morici is an economist and emeritus business professor at the University of Maryland, and a national columnist.