Utahns have no right against partisan gerrymandering, congressmen tell Supreme Court

The Utah Supreme Court is scheduled to hear appeals in a lawsuit challenging political maps drawn by the Legislature on July 11.

(Trent Nelson | The Salt Lake Tribune) Rep. Chris Stewart, Rep. John Curtis, and Rep. Burgess Owens at the Utah Republican Party election night party at the Hyatt Regency in Salt Lake City on Tuesday, Nov. 8, 2022. Utah's four GOP congressmen signed a brief to the Utah Supreme Court saying Utahns do not have the right against partisan gerrymandering.

With their jobs on the line, Utah’s four Republican congressmen have a clear interest in what happens to electoral districts redrawn by the Legislature.

And while those boundaries are being challenged in front of the state’s highest court, the federal lawmakers have been relatively mum since the new maps were approved — and heavily protested — in late 2021.

A group of Utahns and voters’ rights groups also question the potential role those lawmakers had in creating or supporting the latest boundaries, and have gone as far as suing the Legislature and Utah election officials, while also serving the four — Reps. Blake Moore, Chris Stewart, John Curtis and Burgess Owens — subpoenas at their congressional offices.

According to an attorney representing the complainants, the congressmen refused to cooperate.

In a brief quietly submitted to the Utah Supreme Court this spring and obtained by The Salt Lake Tribune, Utah’s congressmen laid bare what they think about the redistricting process and the lawsuit alleging the rearranged district boundaries disenfranchise Utah voters.

The congressmen join the state in asking the court to throw the case out, writing in the brief that it “has the potential to affect both the makeup of the districts represented by the Congressmen as well as their Elections Clause powers.”

Those powers, they say, are derived from Article I, Section 4 of the U.S. Constitution, which says, “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.”

The congressmen draw upon the independent state legislature theory, which asserts that state lawmakers have the sole authority to regulate federal elections — without input from other bodies like courts, or independent redistricting commissions — unless Congress intervenes.

Their brief also argues that there are no protections against partisan gerrymandering in the U.S. Constitution, and without any in the Utah Constitution, state courts shouldn’t make decisions on gerrymandering questions.

“The Constitution does not stutter,” the brief reads. “Congress, not state courts creating substantive law from vague state constitutional provisions, is the Constitution’s backstop to protect constitutional rights from infringement by State Legislatures. There’s no constitutional right to be free from partisan gerrymandering.”

Although several other states bar partisan gerrymandering in their constitutions, Utah’s does not include such an explicit provision.

The congressmen contend that a court should not weigh whether the new voting boundaries are unconstitutional without the majority-Republican Legislature approving such a measure. And if Utah voters don’t like that, they should elect new lawmakers, it says.

“Nothing whatsoever but an absence of political will prevents Utah from adopting an unambiguous anti-partisan-gerrymandering amendment … ,” the brief says. “Such political will, however, must come from the People of Utah and their elected representatives, not state or federal courts.”

Partisan politics

The window into their positions comes as Utahns await the next hearing in the case, scheduled for July, and a special election to replace Rep. Chris Stewart. Utah’s 2nd Congressional District representative announced last week that he will step down in September.

Litigation over the new boundaries — which now splits Democratic-heavy Salt Lake County into quarters — has been making its way through Utah courts for over a year now. A coalition that includes the League of Women Voters of Utah, Mormon Women for Ethical Government and several individual voters sued in March 2022, naming Lt. Gov. Deidre Henderson, the Utah Legislature, Utah House Speaker Brad Wilson, Utah Senate President Stuart Adams and the Legislature’s Redistricting Committee as defendants.

(Rick Egan | The Salt Lake Tribune) Hundreds of protesters gather on the steps of the State Capitol, a the Gerrymandering protest, on Wednesday, Nov. 10, 2021.

The lawsuit came after the group Better Boundaries gathered enough signatures to put a proposition for an independent redistricting commission on the ballot in 2018, and it passed with a slim 50.3% majority. Lawmakers later made the commission’s recommendations merely advisory, and plaintiffs argue they overstepped their role in doing so.

The brief, according to court documents, was funded by the National Republican Congressional Committee — an organization dedicated to increasing the number of Republicans in the U.S. House of Representatives. The NRCC has filed its own briefs in other states’ redistricting fights, including a North Carolina case in front of the U.S. Supreme Court.

It’s unclear how much money the committee put into this brief, specifically, but Federal Election Commission records indicate it’s paid the law firm that drafted the brief nearly half a million dollars since the beginning of this year.

The NRCC did not respond to questions from The Tribune.

It’s not uncommon for members of Congress to speak up when their district boundaries are at stake, said Michael Li of the Brennan Center for Justice at New York University, who specializes in redistricting and election law issues. “It’s probably a little bit more unusual what they’re exactly saying,” Li said.

He summed up the congressmen’s argument as saying that there are no checks and balances for political maps beyond people who serve in legislative bodies, allowing legislatures and Congress to lock in their power and render elections meaningless.

“That’s really more of an argument that we would expect from somebody like Fidel Castro or Xi Jinping in China than, you know, from elected representatives in a democracy,” Li said, continuing, “They’re abandoning any kind of pretense to sort of care about democracy. Like, we can have elections where we know who’s going to win, and that’s OK.”

The offices of Moore, Stewart, Curtis and Owens did not respond to requests for comment on the brief.

Among the limited remarks they’ve offered on the redistricting process is a statement from Moore in November 2021 praising the Legislature’s efforts. And in a 2021 Deseret News op-ed, Stewart criticized efforts by Democrats to prohibit partisan gerrymandering of congressional districts nationwide, writing, “it takes power away from ‘the people,’ as well as their local officials.”

By bringing the U.S. Constitution into the case, plaintiffs’ attorney David Reymann said, the congressmen are injecting a new issue — the Legislature has so far been basing its arguments on the powers granted by the Utah Constitution, he said. Amicus parties generally aren’t allowed to do that.

“To see them show up at the time of appeal, and now want to speak out on the case when they ... essentially acted like the case was beneath them and they didn’t have to follow the normal rules that everyone else has to follow in responding to subpoenas was a bit ironic,” Reymann said.

What we know — and don’t — about the subpoenas

The subpoenas were delivered in December, and it’s unclear what information they asked for. At the time, attorneys for the plaintiffs refused to share copies of the subpoenas with The Tribune, saying they don’t release such documents during litigation.

But Reymann said the subpoenas were seeking the congressmen’s communications with state legislators about how their districts should be drawn, which he called “centrally relevant information in the case.”

Neither Moore, Stewart, Curtis nor Owens responded to the subpoenas before the case was put on hold in January to allow the Utah Supreme Court to review the defendants’ motion to dismiss the case, according to Reymann. None of their offices responded to questions from The Tribune about their responses to the subpoenas.

Since the new maps were adopted, one district has become an easier win for Republicans.

Congressional District 4, lost by incumbent Democratic Rep. Ben McAdams in 2020 to Owens by one percentage point, was won by a much larger margin — nearly 30 percentage points — in 2022. Meanwhile, Republicans in other congressional districts lost a portion of their support, but still secured a comfortable victory.

What happens next?

The dates of an upcoming special election to replace Stewart are expected to be set sooner than later. It’s unlikely the redistricting case could be resolved before then.

“We’ve done everything we can to try and expedite things, but sometimes ... the wheels of justice grind really slowly,” Reymann said.

At the July 11 hearing, the Utah Supreme Court will hear arguments on two appeals: the state’s appeal on a district court judge’s ruling that constitutional questions in the case could move forward, and the plaintiffs’ appeal of the judge’s decision to dismiss their claim that it was unlawful for the Legislature to water down the independent redistricting commission proposition.

It may take months for justices to take action on those appeals. Reymann said the plaintiffs hope the case will be decided before the end of the year, when campaigning for 2024 elections will kick into high gear.

While getting what they view as fair maps is important to them, Reymann said, a larger priority is setting precedent for how the redistricting process will go in the future.

“It was never just about one election cycle,” Reymann said. “But it’d be nice, since our position is that people’s constitutional rights are being violated, not to have to go through a whole other election with that.”

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