Partisan Gerrymandering and State Constitutions

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See all articles by Michael Morley

Michael Morley

Florida State University - College of Law

Date Written: February 1, 2020

Abstract

Since the U.S. Supreme Court held in Rucho v. Common Cause that partisan gerrymandering claims are non-justiciable under the U.S. Constitution, reformers have shifted their focus to pursuing such claims under state constitutions. In some cases, longstanding state constitutional provisions have been re-interpreted to prohibit partisan gerrymandering. In others, state constitutions have been expressly amended to either forbid partisan gerrymandering or transfer authority over drawing congressional and legislative district lines from the state legislature to independent redistricting commissions.

The U.S. Constitution does not confer authority to regulate federal elections on states as entities, however, but rather specifically on the “Legislature” of each state. The “independent state legislature doctrine” teaches that a state constitution is legally incapable of imposing substantive restrictions on the authority over federal elections that the U.S. Constitution confers directly and specifically on a state’s legislature. Over the past 130 years, the U.S. Supreme Court has repeatedly adopted conflicting positions on the doctrine without recognizing its deep historical roots or normative justifications.

The independent state legislature doctrine reflects the prevailing understanding of states, Congress, and other actors throughout the Nineteenth Century, and was consistently applied during that period across a broad range of circumstances. It protects important structural considerations and is consistent with the political theory underlying the U.S. Constitution’s election-related provisions. Properly understood, the independent state legislature doctrine is a powerful, largely overlooked obstacle to the use of state constitutions to combat partisan gerrymandering.

Keywords: political gerrymandering, partisan gerrymandering, constitutional law, voting rights, right to vote, state constitution, federalism, Elections Clause, Presidential Electors Clause, election contest, Nineteenth Century, originalism, structuralism, intratextualism, Supreme Court, redistricting

Suggested Citation

Morley, Michael, Partisan Gerrymandering and State Constitutions (February 1, 2020). Available at SSRN: https://ssrn.com/abstract=

Michael Morley (Contact Author)

Florida State University - College of Law ( email )

425 W. Jefferson Street
Tallahassee, FL 32306
United States

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