Utah Supreme Court to Hear Gerrymandering Challenge
State courts in Utah are the latest to consider whether partisan gerrymandering gives rise to an actionable claim under state law.
The battle over partisan gerrymandering reaches the Utah Supreme Court on July 11, when the court’s justices hear arguments in League of Women Voters of Utah v. Utah State Legislature which asks whether state courts can hear gerrymandering claims brought under the Utah constitution.
The case arises out of a challenge by voters under the state constitution to Utah’s congressional map, which GOP lawmakers aggressively redrew in 2021 to carve up Salt Lake County. By distributing Democratic-leaning areas in the state’s most populous county among all four of the state’s districts, map drawers were able to transform Utah’s sole competitive congressional district into a reliably Republican one.
The challenge to Utah’s map is part of a recent trend of state court gerrymandering litigation. For years, most efforts to challenge gerrymandering had been brought in federal court under the federal constitution. But those efforts were unsuccessful as the U.S. Supreme Court struggled for nearly three decades to settle on what it considered a workable standard for deciding cases. Finally, in 2019, the high court put a halt to such efforts, ruling in Rucho v. Common Cause that gerrymandering claims under the U.S. constitution were non-justiciable political questions and thus definitively off limits to federal courts.
With federal constitutional challenges no longer available, voters increasingly began turning to state courts and state constitutions, taking Chief Justice John Roberts up on the assurance in his Rucho majority opinion that the decision did not “condemn complaints about districting to echo into a void . . . [because] state statutes and state constitutions can provide standards and guidance for state courts to apply.”
Compared to their federal counterparts, state courts have much more readily embraced the challenge of policing excessive partisanship. Since 2016, state courts in Alaska, Florida, Maryland, New Mexico, New York, North Carolina, Ohio, Oregon, and Pennsylvania have all heard or are in the process of hearing gerrymandering claims, though North Carolina courts have since reversed course and declared that gerrymandering claims are non-justiciable under the state constitution.
While not all state-level gerrymandering claims have resulted in new maps, plaintiffs have at least had their day in court. Indeed, only state supreme courts in Kansas and now North Carolina have ruled that such claims are barred on grounds of justiciability (the issue is still working its way through appellate courts in Kentucky).
As is the case in Utah, most of the gerrymandering claims in state court turn on provisions of state constitutions that have no analogue in the federal constitution. In Utah, the voters challenging the state’s congressional map contend that the division of Salt Lake County violates numerous unique pro-democracy provisions in the Utah Constitution, including a guarantee that “[a]ll elections shall be free” and a guarantee of the right to vote, which plaintiffs argue has long been interpreted by Utah courts to encompass a right to a “meaningful and undiluted” vote. The challengers also contend the gerrymander unconstitutionally retaliates against Democratic voters for exercising their guaranteed rights of free speech and association and violates state-law equal protection guarantees.
With respect to courts’ ability to decide these claims, plaintiffs argue that Article VIII, section 2 of the Utah constitution expressly gives Utah courts the power to “declare any law unconstitutional” and that there is “no basis for exempting redistricting laws from the standard judicial review by courts of ‘general jurisdiction.’” They note that the Utah legislature itself passed laws giving state courts jurisdiction over redistricting cases and had in other cases “previously acknowledged that redistricting laws are subject to state constitutional restraints.”
GOP lawmakers, however, argue that the Utah constitution should be read to textually commit redistricting to the sole, unreviewable discretion of the state legislature and that allowing courts to hear partisan gerrymandering claims would “violate [the Utah’s constitution’s] strict separation-of-powers guarantee.” In any event, they argue there are no manageable standards for a court to determine “how much is too much” partisanship in a map.
Unlike other gerrymandering appeals that have reached state supreme courts, the Utah case is unusual in that a trial has yet to occur on the plaintiffs’ underlying claims. Instead, after the district court ruled that gerrymandering claims were viable under the Utah constitution and set a trial date, GOP lawmakers sought interlocutory review of the decision at the state supreme court. As a result, the only issue before the high court at this phase of proceedings is the threshold question of whether gerrymandering claims are justiciable. (After GOP lawmakers filed their appeal, the plaintiffs also filed a cross-appeal of the trial court’s dismissal of other claims.)
Although the Utah Supreme Court usually hears the last cases of its term in May, the justices agreed to hear the appeal in an unusual summer sitting. It is unclear how long it will take for the justices to rule after argument. But if the court rules that gerrymandering claims are justiciable, the case will return to the district court for a trial on merits, with changes potentially possible in time for the 2024 election if the plaintiffs prevail in trial on the merits.
In the fight against partisan gerrymandering, Utah is now in the spotlight.
The Brennan Center filed an amicus brief in League of Women Voters of Utah v. Utah State Legislature.
Michael Li is senior counsel at the Brennan Center for Justice.
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