The Supreme Court has rejected the theory in past rulings, as recently as 2019.
Chief Justice John Roberts implicitly ruled out support for the theory in a landmark 2019 decision, Rucho v. Common Cause, which stated that partisan gerrymanders were political matters outside the purview of federal courts.
“Provisions in state statutes and state constitutions can provide standards and guidance for state courts to apply” in outlawing partisan maps, he wrote, citing a voter-approved amendment to the Florida Constitution that forbids maps drawn with the intent to favor or disfavor a political party.
The court rejected the theory outright, albeit in a 5-4 vote, in a 2015 decision upholding an Arizona ballot initiative that took the power to draw political maps away from the Legislature and handed it to an independent redistricting commission. It also did so in a 1932 case involving the Minnesota governor’s veto of that state’s congressional maps, as well as in 1913, in a case involving Ohio’s map of House seats.
Approval of the theory would remove the last legal barriers to gerrymandering of House seats.
In the wake of the 2019 Supreme Court decision in Rucho, state constitutions and courts have stepped in to regulate partisan maps in some states. Most recently, supreme courts have rejected as partisan gerrymanders maps drawn by legislatures in Maryland, New York, North Carolina and Ohio after the 2020 census. High courts in Pennsylvania and Virginia also played roles in altering those states’ maps.
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State supreme courts have generally relied on provisions in most state constitutions guaranteeing “free and fair elections,” a clause that does not exist in the federal Constitution, and on free speech and assembly clauses that have been interpreted as being stronger than the federal guarantees. The independent legislature theory would remove any role of state constitutions in regulating political maps.
Many states have set up redistricting commissions to draw political maps, although only a handful — notably in Arizona, California, Colorado and Michigan — are substantially independent of legislatures’ influence. By many experts’ assessments, such commissions would also be endangered, if not completely nullified, if the theory were to be adopted.
Congress and the federal courts would retain power over election laws.
The Constitution gives Congress the power to enact federal election laws and override state ones, in the same Article I clause that hands election authority to state legislatures. And it has exercised that power forcefully, particularly in enacting the 1965 Voting Rights Act. In this century, however, partisan gridlock has limited the House and Senate to comparatively minor adjustments to election laws. More sweeping efforts to strengthen voting rights and ban gerrymanders have been blocked by Republican opposition.