Is There Anything Left in the Fight Against Partisan Gerrymandering? Congressional Redistricting Commissions and the “Independent State Legislature Theory”

Authors

Derek A. Zeigler, University of Michigan Law School, University of Michigan Gerald R. Ford School of Public Policy
Jose Urteaga, University of Michigan Law School

Abstract

Partisan gerrymandering is a scourge on our democracy. Instead of voters choosing their representatives, representatives choose their voters. Historically, individuals and states could pursue multiple paths to challenge partisan gerrymandering. One way was to bring claims in federal court. The Supreme Court shut this door in Rucho v. Common Cause. States can also resist partisan gerrymandering by establishing congressional redistricting commissions. However, the power of these commissions to draw congressional districts is at risk. In Moore v. Harper, a case decided in the Supreme Court’s 2022-2023 Term, the petitioners asked the Court to embrace the “Independent State Legislature Theory.” The ISLT, at a minimum, would allow federal review of state interpretations of state law governing congressional elections, including redistricting. Part I distills the Supreme Court’s opinions on redistricting commissions into two potential doctrinal routes: a more restrained version (ISLT-Lite) and a maximalist version (ISLT-Max). Part II proposes a framework to analyze existing congressional redistricting commissions for their constitutionality under each theory. Part III makes recommendations for building constitutionally sound congressional redistricting commissions under each theory, both for states with existing commissions and for those looking to reduce partisan gerrymandering in the future. While the future of ISLT, and congressional redistricting commissions more broadly, remains uncertain, this Note offers an analytical framework so states may continue to constitutionally alleviate partisan gerrymandering through the congressional redistricting commission framework.

Recommended Citation

Derek A. Zeigler & Jose Urteaga, Is There Anything Left in the Fight Against Partisan Gerrymandering? Congressional Redistricting Commissions and the “Independent State Legislature Theory”, 122 Mich. L. Rev. 561 (2023).
Available at: https://repository.law.umich.edu/mlr/vol122/iss3/4