Wisconsin Democrats thought they had won the redistricting war. They took over the governor’s office, competed in and won state judicial races and filed lawsuits as early as they could, determined to prevent another cycle of Republican-leaning maps. After a battle between Democratic Gov. Tony Evers and Republican legislators, a conservative judge sided with Evers, rejecting a Republican-drawn legislative map in favor of one that was better for Democrats.
But Republicans took their case to the U.S. Supreme Court — and won.
“It was a Hail Mary’s Hail Mary, not something we were very focused on,” said Ben Wikler, the chair of Wisconsin’s Democratic Party. “But here we are.”
After a redistricting cycle that initially went better than expected for Democrats, the conservative Supreme Court has bolstered Republican efforts to reverse that trend, with more cases in the wings from GOP attorneys and legislators from multiple states.
Alabama Republicans persuaded the Supreme Court to override a lower court’s ruling that would have forced the state to draw two congressional districts with large Black voting blocs. In Florida, Gov. Ron DeSantis has laid the groundwork for a legal battle over his desire to eliminate a district with a plurality of Black voters. Ohio Republicans, who have repeatedly lost in the state Supreme Court over gerrymandered maps, is waging a parallel legal fight in a more favorable federal court.
What worries Democrats and voting rights advocates most is the potential that the Supreme Court will validate a legal theory that state legislatures alone must draw political maps — a judgment that would give lawmakers final say over redistricting, stripping out the role that governors, judges and even independent commissions set up by voters have in the process. North Carolina Republicans have asked the court to weigh in; Republicans in other states, such as Pennsylvania and Ohio, have endorsed the idea, known colloquially as the “independent state legislature theory.”
If adopted, Democrats and voting rights advocates say, state legislatures — many of them gerrymandered to maximize control — would obtain unprecedented power.
“It would be Defcon 1 to democracy,” said David Pepper, former Democratic state party chairman in Ohio.
“They’re coming up with multiple ways to get around the fact that state Supreme Courts have risen as the strongest check on these gerrymandered state legislatures,” Pepper said. “Declaring statehouses beyond judicial review would be devastating to democracy. They basically are already not accountable at the polls, so the only thing we have at this point is courts to hold them into check.”
The Republicans who back the theory say an original reading of the Constitution gives state legislatures supremacy over election-related laws. They point to a clause in Article 1 that says the “times, places and manner of holding elections for senators and representatives, shall be prescribed in each state by the legislature thereof,” as evidence that the Founders intended to give elected state lawmakers ultimate power, though it’s never been interpreted that way in all of U.S. history.
“There’s no indication that the use of ‘legislature’ would have meant legislature free from the state constitution,” said Vikram Amar, dean of the University of Illinois College of Law, who has written extensively on the independent legislature theory.
Few legal scholars, including conservative ones, have endorsed this doctrine, Amar said, yet it’s gained purchase in Republican states.
“We live in an era where politics overtakes analytics, and while the court is less susceptive, it’s not impervious to that,” Amar said. “I think it would be terrible. Our democracy has so many challenges already, it would be a grievous wound, a self-inflicted wound.”
Republicans steamrolled Democrats in redrawing congressional lines a decade ago, carefully pushing their advantage around the country. In the years leading up to the 2011 redistricting, national Republicans invested in winning large majorities in state legislatures and state courts to ensure control over the mapmaking in key electoral states.
Determined not to be overpowered again, national Democrats, led by former attorney general Eric Holder, set out to blunt Republicans ahead of the redistricting that would follow the 2020 Census.
Democrats were at the forefront of campaigns calling for independent commissions to draw maps, instead of politicians, and constitutional amendments to end partisan gerrymandering. They also focused on electing Democratic governors in states controlled by Republican legislatures, like Wisconsin and Pennsylvania, and securing seats on state supreme courts in places like North Carolina and Ohio as buffers to those states’ gerrymandered legislatures.
When states began drafting new congressional maps last fall, experts believed Republicans still had the upper hand in a politically fraught process where just a few line changes could determine the House majority. Yet Democrats fared better than expected because of the series of electoral and early legal wins that staved off GOP gains.
But there is nothing Democrats can do about the conservative majority on the nation’s highest court, which will have the option of a final say in several redistricting fights.
The U.S. Supreme Court has always been the last resort in redistricting cases, but in 2019 the justices limited their role and pushed back to the states cases alleging partisan gerrymanders, keeping for themselves only redistricting violations of the federal Voting Rights Act. The Supreme Court has already said it will take up a case in the fall regarding Alabama’s congressional map, and whether lines should be drawn to proportionally represent the state’s large Black population.
A version of the independent legislature theory got some buy-in during the Bush v. Gore lawsuit that determined the outcome of the 2000 election, in which the court sided with Republicans. Justices William H. Rehnquist, Antonin Scalia and Clarence Thomas wrote a concurring opinion that the Supreme Court could overrule a state Supreme Court’s interpretation of its election laws to “preserve the state legislature’s power over how the state runs its presidential elections.”
Fifteen years later, the court narrowly rejected a challenge from Arizona’s Republican-led state legislature to maps drawn by an independent commission. Rehnquist’s successor, Chief Justice John G. Roberts Jr., dissented.
“Both the Constitution and our cases make clear that ‘the Legislature’ in the Elections Clause is the representative body which makes the laws of the people,” Roberts wrote. That, say some Republicans, is an indication that a good legal test of the independent state legislature theory could get the court’s conservatives, Roberts included, to strike down maps that the legislators didn’t themselves approve.
The party again test-drove the independent legislature theory in 2020 when Pennsylvania Republicans asked the U.S. Supreme Court to block the state Supreme Court’s ruling that ballots received days after the election must be counted. They argued that state judges shouldn’t be allowed to override the legislature. Four U.S. justices agreed with the Republicans, while another four, including Roberts, sided with the state court. (Justice Ruth Bader Ginsburg had died and her replacement, Amy Coney Barrett, hadn’t yet been confirmed.)
“This independent legislature theory, this needs to be said, this is an absurd legal theory, it’s laughable,” Holder said in an interview. “This notion that state legislatures are the only authority for drawing redistricting, it’s a fringe argument that is at odds with basic tenets of the U.S. Constitution, checks and balances, separations of power.”
Adam Kincaid, executive director of the National Republican Redistricting Trust, an organization created to counter Holder’s group, brushed aside his criticism.
“I think the Supreme Court would not be entertaining the (North Carolina) appeal if it didn’t have legs,” Kincaid said. “The state Supreme Court’s role is not as super legislature, that should not be within bounds. Courts should not be acting as legislatures; legislatures are tasked with drawing these lines.”
One group pushing for power to rest with state legislatures is the Article III Project, which advocates for conservative judges. Mike Davis, the head of that group, called it “a very powerful legal argument” that gives the U.S. Supreme Court solid reasons to “finally end the Democrats’ unconstitutional redistricting game of having their partisan, Democrat state Supreme Court judges and commissions” draw maps.”
“My prediction is that the Supreme Court will rule 6-3 in favor of (North Carolina Republicans) — and finally end redistricting by partisan Democrat courts and commissions,” Davis said.
Marc Elias, the attorney who’s represented Democrats in many of their election and gerrymandering lawsuits, said he does not see a Supreme Court majority embracing the independent legislature doctrine.
“The theory is that because the Constitution says that legislatures have some power that they can’t be reviewed by the courts,” Elias said. “Well, the same Constitution also grants Congress some powers, but it’s never been in doubt that the U.S. Supreme Court can review what’s passed by Congress. The Constitution says ‘state legislature’ and the Constitution says ‘Congress,’ and if you go down this road, all of a sudden, you’re unraveling judicial review.”
Even as Democrats dismiss the independent legislature theory as “ridiculous,” as Wisconsin Gov. Evers put it in a recent interview, Republicans around the country are sanctioning it.
“We must continue this fight to restore the primacy of the legislature and put an end to these efforts to undermine its constitutional duty,” North Carolina Senate leader Phil Berger (R) said in a statement, denouncing “activist judges” on the state Supreme Court who sided with Democrats.
Holder warned that such a decision by the Supreme Court would have a ripple effect across all election-based law.
“What they’ll say is the Constitution says the decision we’re making only applies to redistricting, but the reality is you put that in place, within a couple of days you’ll see advocates try to broaden its impact,” he said. “It is dangerous even if you just limit it to redistricting. It’s democracy-threatening.”