In response to gerrymandering lawsuit, Legislature’s attorneys argue lawmakers — not the courts — decide redistricting

Utah Lt. Gov. Deirdre Henderson, the Utah Legislature and several lawmakers are listed as defendants in the lawsuit.

(Francisco Kjolseth | The Salt Lake Tribune) The Utah Capitol at dusk on Wednesday, Feb. 5, 2020, during the legislative session.

Attorneys for the Utah Legislature asked a judge Monday evening to throw out a lawsuit that claimed Utah’s congressional redistricting amounted to an unconstitutional gerrymander.

The Legislature’s attorneys argued that the challenge would escalate a political disagreement to a judicial exercise based on “illusory standards of political equality in a highly unequal partisan landscape.”

They contend that Utah’s Constitution puts the power to redraw political boundaries solely in the hands of the Legislature and the court should defer to lawmakers’ decisions. Earlier in the day, the Utah Attorney General’s office, representing Lt. Gov. Deidre Henderson, likewise argued it is a political issue and not a matter that should be decided by the court.

Legislators also enjoy political immunity, the attorneys argue, meaning any direction from the court is unenforceable and any attempt to compel the Legislature to act would violate the separation of powers.

In their lawsuit, filed on March 17, the League of Women Voters of Utah, Mormon Women for Ethical Government and several Salt Lake County residents allege the newly drawn congressional boundaries split towns and neighborhoods, “cracking” them in order to produce four safe Republican districts.

As a result, the lawsuit argues, the Legislature has deprived voters of their constitutional right to meaningful representation and to participate in a free and fair election. The suit asks the court to declare the maps invalid after the 2022 election and to direct the Legislature to draw new maps that do not violate those constitutional guarantees.

But the Legislature counters, arguing that under the maps adopted last year, every Utah voter has a vote equal to every other Utah voter and voters can freely choose to change party allegiance. There is nothing in Utah’s Constitution, statute or judicial precedent “to suggest there is a right to voting outcomes based on one’s political affiliation,” wrote Legislative General Counsel John Fellows in the response.

They contend that because there is no fundamental right to partisan balance and because the Legislature had a reasonable explanation for the boundaries they drew — a stated desire to have urban and rural constituents in each of the four congressional districts — the court should give deference to the Legislature’s actions.

To reverse the supposed “cracking” and combine voters into new districts would be equally unfair, Fellows wrote.

“The court should dismiss Plaintiffs’ Complaint in its entirety,” he said. “In this case of first impression,” meaning there is no precedent at the state level, “plaintiffs seek for the court to invent new law to prohibit partisan cracking and to, paradoxically, grant them a remedy of partisan packing.”

Currently, there have been 68 lawsuits nationwide challenging congressional or legislative maps over either partisan or racial gerrymandering, according to data from the Brennan Center for Justice. The lawsuits challenge maps drawn both by Democrats and Republicans.

Courts in Alaska, Kansas, Mary­land, New York, North Caro­lina, Ohio, and Tennessee have ordered that either congressional or legislative districts be redrawn. A federal court in Alabama ordered a do-over for that state’s congressional boundaries, but the case has been appealed.

The arguments at the heart of several of those cases, as well as the constitutional language they are based on, are very similar to that in the Utah lawsuit.

(Leah Hogsten | The Salt Lake Tribune) Members of the public react to public comment in House Building, Room 30, Nov. 8, 2021. The public got to respond on Monday to the Utah Legislature's Redistricting Committee's only public hearing for the map proposals.

In 2018, voters approved the creation of the Utah Independent Redistricting Commission, but the commission was turned exclusively into an advisory body by the Legislature. The bipartisan commission spend weeks holding public forums and drawing maps, all of which were dismissed by lawmakers.

Instead, the Legislature’s own committee drew its own maps, which split Salt Lake County — the largest concentration of Democratic voters in the state — into four different congressional districts. Portions of the town of Millcreek are in all four districts and, according to the lawsuit, two plaintiffs who live just a few blocks away from each other are in separate districts, lumped in with voters at opposite ends of the state.

Third District Judge Dianna Gibson has tentatively set a schedule to have the case ready for a trial by July 2023.