Skip to main content

High Court Settles the Status of Legal Theories Affecting Redistricting

A pair of blockbuster redistricting cases decided this summer by the U.S. Supreme Court were scrutinized during a session at NCSL’s Legislative Summit.

By Helen Brewer  |  August 25, 2023

A pair of blockbuster redistricting cases decided this summer by the Supreme Court were scrutinized during a session at NCSL’s Legislative Summit.

In Moore v. Harper, the court largely rejected the independent state legislature theory, which argues that state legislators have almost total control over state election-related laws and that state supreme courts lack the authority to decide whether those laws comply with state constitutions.

Summing up the case in the style of a first-year law student’s class notes, the panelists agreed that state legislatures do not exist in a silo: The election laws they pass remain subject to state courts and state constitutional constraints.

In Allen v. Milligan, the court addressed racial vote dilution in Alabama. Panelist Jimmy Entrekin, chief counsel to the Alabama Legislature, noted that the intricacies of the role of race in redistricting remain unclear. The U.S. Constitution prohibits race from being the “predominant” factor in redistricting, he says, yet Section 2 of the Voting Rights Act requires that districts be drawn to give nonwhite populations the opportunity to elect candidates of their choice in certain areas.

To reconcile this tension, the state of Alabama proposed a new standard that would have revised or eliminated a nearly 40-year-old precedent that governs how race is used in redistricting. But the Supreme Court rejected this proposal, affirming the status quo.

Despite this, the Allen case did not clarify exactly how states can comply with the Voting Rights Act without running afoul of the Constitution. Another panelist, the Campaign Legal Center’s Catherine Kelley, believes a balance can be struck; others say they think the line is extremely unclear, if not altogether unworkable.

More to come

At least for the moment, the cases settle the status of two prominent legal theories that play key roles in redistricting. But this likely isn’t the end of the road: The panelists agree that redistricting is likely to remain heavily litigated and highly politicized.

In particular, partisan gerrymandering claims remain viable in most state courts. These claims argue that a redistricting map benefits one political party over the other in a way that is unfair given the reality of the population’s partisan composition.

The Supreme Court decided in Rucho v. Common Cause, in 2019, that partisan gerrymandering cases present political questions that federal courts cannot consider. After Rucho, only state courts can hear partisan gerrymandering cases. Panelist Mark Braden, a partner at the BakerHostetler law firm, says that partisan gerrymandering lawsuits are taking these highly partisan fights from legislative campaigns to what is supposed to be the nonpartisan judicial branch.

Helen Brewer is a policy specialist in NCSL’s Elections and Redistricting Program.

Want More? Subscribe to NCSL Newsletters Tailored Just for States

Get the latest election state policy news, research and analysis delivered directly to your inbox. Choose from a variety of newsletters, including The Canvass: Elections Update. Sign up

  • Contact NCSL

  • For more information on this topic, use this form to reach NCSL staff.