New Hurdles to Redistricting Reform: Moore, State Evasion, and Partisan Gerrymandering

60 Pages Posted: 27 Oct 2023 Last revised: 4 Mar 2024

See all articles by Manoj Mate

Manoj Mate

DePaul University - College of Law

Date Written: December 8, 2023

Abstract

This article examines the impact of the Supreme Court’s recent decision in Moore v. Harper on state partisan gerrymandering. Moore rejected the independent state legislature theory in affirming that state courts could review state regulations of federal elections. However, Moore also articulated a vague standard under which federal courts could review state court decisions to ensure they do not “transgress the ordinary bounds of judicial review” by assuming powers vested in state legislatures under the federal Elections Clause.

I analyze Moore’s impact on the substantive dimension of state court review in conjunction with the procedural dimension of state partisan gerrymandering disputes, by focusing on a problem that Moore does not squarely address—evasion of anti-partisan gerrymandering processes and norms by legislatures, redistricting commissions and other political actors. I argue that Rucho and Moore entrench a model of federalism that contributes to representation diminution by allowing federal courts to undermine state court checks on state partisan gerrymanders, while at the same time failing to address the problem of evasion of norms prohibiting partisan gerrymandering. As this article illustrates, political actors have defied and evaded state constitutional and statutory provisions in surprising and concerning ways. State legislatures and redistricting commissions have evaded constitutional provisions governing partisan gerrymandering norms and redistricting processes, and also defied and resisted court decisions ordering the adoption of remedial maps in their push to implement partisan gerrymanders.

This article begins by situating Moore within theories of federalism, democracy, and election law, highlighting how Moore could weaken state courts’ role in policing partisan gerrymandering, while not addressing the problem of evasion of politically entrenched norms against partisan gerrymandering . It then provides a descriptive account of state partisan gerrymandering regimes, by analyzing variation in the pathways through which states have entrenched norms against partisan gerrymandering, and variation in evasion strategies employed by political actors. It then assesses Moore’s implications for state constitutionalism by examining its potential impact on state court interpretation and state electoral governance, state court responses to evasion dynamics, and how patterns of evasion highlight key weaknesses in the institutional design of state redistricting reforms, and weaknesses in judicial remedies. The article concludes by considering broader implications for federalism, democracy, and the role of courts.

Keywords: Supreme Court, Constitutional Law, Partisan Gerrymandering, Redistricting, Moore v. Harper, Rucho, Federalism, State Legislatures, State Courts, Elections Clause, Independent State Legislature Theory, Bush v. Gore, State Constitutions, Election Law, Voting rights, Democracy

Suggested Citation

Mate, Manoj, New Hurdles to Redistricting Reform: Moore, State Evasion, and Partisan Gerrymandering (December 8, 2023). Forthcoming, Connecticut Law Review, Vol. 56, No. 3, 2024, Available at SSRN: https://ssrn.com/abstract=4574616 or http://dx.doi.org/10.2139/ssrn.4574616

Manoj Mate (Contact Author)

DePaul University - College of Law ( email )

25 E. Jackson Blvd.
Chicago, IL Cook County 60604-2287
United States

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