The Supreme Court’s conservative majority is poised to flex its judicial muscles again. This year they will hear a North Carolina case in which they are expected to declare that neither state courts nor voter-approved ballot initiatives can nullify partisan gerrymandering by state legislatures. Among the repercussions: the demise of California’s Citizens Redistricting Commission.

Stephen Woolpert is professor emeritus in the Politics Department at Saint Mary's College in Moraga.
Stephen Woolpert 

Californians voted to eliminate partisan gerrymandering in 2010 by transferring the power to draw congressional district boundaries from the Legislature to the nonpartisan commission. Its opponents argued that the U.S. Constitution — which says, “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof” — prohibits voters from using ballot initiatives to make laws governing federal elections.

In 2015, however, a divided Supreme Court upheld voter-approved redistricting commissions, holding that “redistricting is a legislative function to be performed in accordance with the State’s prescriptions for lawmaking, which may include the referendum.” The dissenters thought that the word “Legislature” unambiguously referred to a representative body.

Since then, Justices Neil Gorsuch, Clarence Thomas, Samuel Alito and Brett Kavanaugh have signaled support for the dissenters’ “independent legislature theory.”  Assuming Justice Amy Coney Barret agrees, the North Carolina case, Moore v. Harper, is their opportunity to grant state legislatures unbridled discretion over federal voting procedures. This novel theory undermines California’s commission and similar redistricting procedures in 20 other states. It also prevents state courts from nullifying gerrymandered maps under their states’ constitutions.

Such a decision would weaken our democracy by circumventing the constitutional safeguards designed to prevent abuse of governmental power. The Constitution deliberately divides power among separate institutions — “checks and balances” — so no single institution becomes too powerful. But that’s precisely what the independent legislature theory allows. If neither state courts nor ballot initiatives can limit redistricting abuses, there will be no effective checks on legislative gerrymandering.

In theory, voters who object to legislative gerrymandering could throw their representatives out of office. But, ironically, partisan gerrymanders intentionally minimize that risk by creating safe districts for incumbents. In effect, they allow representatives to pick their voters, not the other way around — the very reason for creating the redistricting commission in the first place.

Nor can federal courts declare partisan gerrymanders unconstitutional. In a 2019 ruling, the Supreme Court declared (5-4, along conservative/liberal lines) that federal courts have no authority to regulate partisan gerrymanders. Although the Court observed in passing that such cases could still be decided by state courts, the independent legislature theory promises to close that door too.

Finally, the Constitution explicitly authorizes Congress to regulate how state legislatures organize federal elections. However, overrepresentation by conservatives in Congress renders this last option moot.

First, the Senate represents populous (liberal leaning) states and rural (more conservative) states equally. That means the 22 least populous states, whose total population is roughly equal to that of California, elect 44 senators. We elect two. Second, recent Republican gerrymanders of House districts have “creatively” divided voters so that the median congressional district — which already leaned conservative — is now pulled even further to the right. So long as Congress misrepresents the American people, it will continue to allow partisan gerrymandering.

Conservatives on the Supreme Court and in Congress have the power — and the will — to cast aside not only citizen redistricting commissions but also any realistic limit on state legislatures’ control of voting procedures. The constitutional separation of powers was designed to protect our representative democracy by preventing abuse of governmental power. For Californians, sadly, Moore v. Harper will mean the “checks” no longer “balance.”

Stephen Woolpert is professor emeritus in the Politics Department at Saint Mary’s College in Moraga.