I have written this piece for the Harvard Law Review Blog. It begins:
These are perilous times even for those who think that federal courts have no business messing with how state legislatures draw lines for legislative and congressional districts and that the issue is best left up to each state’s political system. Now that Justice Anthony Kennedy has left the stage, it is unlikely that the Court will stop extreme partisan gerrymandering. But the Court may do more than simply fail to intervene. Within a few years, the Supreme Court may well hold unconstitutional state political processes that have produced measurably better redistricting reform for the drawing of congressional districts.
For many years, I have been one of the rare election law professors who has been skeptical of having federal courts intervene to police partisan gerrymandering. I have worried that there was no social consensus that federal courts should get involved and that there were inadequate standards to separate permissible from impermissible consideration of party in redistricting.
In recent years, my view has evolved. It is not that I embraced the efficiency gap as the holy grail for deciding which redistricting plans flunk the constitutional test. And it is not that the First Amendment provides more judicially manageable standards than the Equal Protection Clause, as Justice Elena Kagan argued in a final unsuccessful play for Justice Anthony Kennedy’s vote in last term’s Gill v. Whitford case.
Rather, my mind is beginning to change for two reasons…..
It is easy to imagine a scenario where the state of Michigan, for example, passes redistricting reform establishing a commission, and Republicans in the Michigan legislature challenge the initiative in federal court arguing that the Constitution’s Article I gives only the state legislature and not the people acting through the initiative process the right to pick the rules for congressional elections (subject to congressional override).
If that argument sounds familiar, it is the same one that the Supreme Court rejected on a 5-4 vote in the 2015 case, Arizona State Legislature v. Arizona Independent Redistricting Commission. There, Justice Ginsburg, joined by the Court’s liberals and Justice Kennedy, relied upon earlier precedent in concluding that the use of the term “legislature” in this part of Article I included not just the legislative body but the state’s legislative process, including the people acting through the initiative process, who can establish an independent commission.
Chief Justice Roberts wrote a blistering dissent for the four conservative Justices arguing that only state legislatures can set the rules for drawing district lines. This view would spell the end of independent commissions, since state legislatures are extremely unlikely to set up fully independent redistricting commissions. If Justice Kavanaugh agrees with the Roberts view in this case—and given the issue’s ideological valence and the newest Justice’s commitments to originalism and textualism, I expect he will—the only thing standing between a ruling that would kill the use of redistricting commissions enacted by initiative for congressional line-drawing is an appeal (as Professor Douglas makes) for Justice Kavanaugh to respect the Arizona precedent. But this is a new and contested precedent, and if Chief Justice Roberts pushes for reconsideration you can bet that the other conservative Justices will go along.