By Jonathan Shorman, Stateline.org
After Missouri lawmakers handed a gerrymandered congressional map this fall, opponents submitted greater than 300,000 signatures looking for 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 have to proceed to litigate to implement our constitutional rights, we’ll,” 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 rare redraw of congressional districts forward of the 2026 midterm elections, state courts could 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 type.
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 sometimes solely redrawn as soon as a decade following the census.
Whereas some state courts have lengthy heard map-related lawsuits, the U.S. Supreme Courtroom 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.
The U.S. Supreme Courtroom’s transient, unsigned majority resolution voiced concern about inserting federal courts into an “energetic main marketing 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 might additionally challenge a call subsequent 12 months that makes it tougher to problem maps as racially discriminatory.
State courts are taking middle stage after gerrymandering opponents have spent many years encouraging them to play a extra energetic position in policing maps that had been drawn for partisan benefit. These efforts accelerated after the U.S. Supreme Courtroom in 2019 restricted the facility of federal courts to dam such maps.
“Principally, each one of many 50 states has one thing in its structure that might be used to constrain partisan gerrymandering,” stated Samuel Wang, director of the Princeton Gerrymandering Mission.
State constitutions, that are interpreted by state supreme courts, sometimes have language that echoes the proper 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 totally free elections, in line with the Nationwide Convention of State Legislatures.
At the very least 10 state supreme courts have discovered that state courts can determine instances involving allegations of partisan gerrymandering, in line with a 2024 overview by the State Democracy Analysis Initiative on the College of Wisconsin Legislation Faculty.
To date this 12 months, California, Missouri, North Carolina, Ohio, Texas and Utah have adopted new congressional maps. New maps additionally seem doable in Florida, Maryland and Virginia. A handful of different states — Alabama, Louisiana, New York and North Dakota — could have to alter their maps relying on the result of courtroom instances.
A few of these new or potential maps might 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 hostile resolution from the state Supreme Courtroom.
4 state supreme courts — together with in Missouri — have decided that they can’t overview partisan gerrymandering claims, although state courts should still take into account challenges on different grounds, comparable to whether or not the districts are compact or contiguous.
In Missouri’s case, courts might 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 twenty years. Republicans at present 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; at the very least 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 information 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 Common Catherine Hanaway) to implement the brand new congressional map, regardless of a submitted referendum petition, is anticipated to turn out to be the newest 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 unattainable, even when map opponents have gathered sufficient signatures to drive a vote.
“As soon as signatures are all verified, the Secretary will certify the referendum based mostly on constitutionality and verification,” Dunn wrote.
Hanaway’s workplace didn’t reply to questions.
Breaking out of lockstep
As federal courts restrict their overview of gerrymandering due to U.S. Supreme Courtroom selections, some state supreme courts are reluctant to wade into the difficulty due to a observe known as “lockstepping.”
State supreme courts typically interpret their state constitutions in step with — or in lockstep with — how the U.S. Supreme Courtroom views comparable language within the U.S. Structure. As a result of the U.S. Supreme Courtroom has declined to restrict partisan gerrymandering, some state supreme courts have additionally declined to impose limits.
Gerrymandering opponents have used a wide range of arguments through the years 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.
Generally these arguments work — and generally they don’t. The North Carolina Supreme Courtroom in 2022 dominated in opposition to partisan gerrymandering. However after two Republicans had been elected as justices that fall, the courtroom reversed itself months later.
“Throughout the nation, we’ve seen advocates flip to state supreme courts, and state courts basically, for state constitutional arguments in opposition to gerrymandering or voter suppression extra broadly. And it’s been met with combined 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.
In states the place legislatures draw congressional maps, some lawmakers argue that state constitutions shouldn’t be interpreted to curb legislative authority over mapmaking. Courtroom-imposed limits quantity to violations of the standard separation of powers, they are saying, with the judiciary overstepping its authority to intervene in politics.
“We count on them to be nonpartisan. We count on them to be unbiased. We count on them to be truthful. We count on them to learn the structure and to guard or at the very least respect the separation of powers,” stated Utah Republican state Rep. Casey Snider, talking of Utah courts throughout a ground 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 unbiased redistricting course of, the Utah Supreme Courtroom final 12 months dominated lawmakers had violated the state structure.
A Utah district courtroom choose in November then adopted a congressional map that may seemingly lead subsequent 12 months to the election of a Democrat. The state’s 4 congressional seats are at present all held by Republicans.
“What we wish is them to redistrict based mostly on inhabitants — pretty,” Katharine Biele, president of the League of Girls 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 choose’s resolution. Lawmakers pushed again candidate submitting deadlines in hopes that an enchantment to the Utah Supreme Courtroom will end in a call overturning the choose’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 had been reluctant to constrain state courts. Democrats at present maintain two of the state’s 9 congressional districts.
The GOP-controlled Indiana Senate voted down the map in a significant setback to Trump’s nationwide redistricting push. The vote got here after a ground debate the place opponents raised considerations about limiting courtroom involvement; the laws included a provision sending any authorized problem on to the Indiana Supreme Courtroom, 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 authorized phrases, ‘inviolate’ has the implication of being sacred, versus being only a piece of the legislation,” 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. “Each side, in any case, need them to be settled rapidly in order that they don’t trigger chaos and interruptions within the elections course of,” he stated.
If the map had handed, opponents would have seemingly attacked the measure utilizing a provision of the Indiana Structure that requires “free and equal” elections.
Stateline reporter Jonathan Shorman will be reached at jshorman@stateline.org.
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