How the U.S. Supreme Court may or may not upend a gerrymandering lawsuit in Utah

How the justices rule in Moore v. Harper could impact a lawsuit alleging Utah’s congressional maps are an illegal gerrymander.

(Francisco Kjolseth | The Salt Lake Tribune) The independent redistricting commission presents their map proposals to the Legislature at the Capitol on Monday Nov. 1, 2021. The Utah Supreme Court is expected to rule on the maps in July 2023, but a U.S. Supreme Court case, Moore v. Harper, could impact the case beforehand.

The U.S. Supreme Court is set to rule this month on whether North Carolina’s high court has the power to strike down congressional maps drawn by the state legislature. And what the court decides could impact a Utah lawsuit claiming the maps implemented by lawmakers in 2021 is an illegal gerrymander.

To understand the parallels between the Utah and North Carolina cases, you must return to 2019. That year, in Rucho v. Common Cause (also about North Carolina’s congressional maps), the U.S. Supreme Court ruled that federal courts could not consider cases about partisan gerrymandering.

Two years later, in 2021, the North Carolina Supreme Court threw out the congressional maps drawn by the GOP-controlled state legislature, ruling the gerrymandered maps violated the state constitution.

Republican lawmakers appealed the decision, arguing the elections clause in the U.S. Constitution gives state legislatures near-total power to determine how congressional elections are conducted — a legal idea known as the “independent state legislature theory.” That case, Moore v. Harper, is awaiting a final opinion from the Supreme Court.

In Utah last year, a coalition of organizations — including the League of Women Voters of Utah, Mormon Women for Ethical Government and several individuals — filed suit claiming the congressional maps approved by the Legislature were an illegal gerrymander that violated several parts of the Utah Constitution. Additionally, the lawsuit claims the Legislature’s move to neuter the voter-approved independent redistricting commission was also unconstitutional.

The Utah Supreme Court will hear arguments on the case next month.

Here’s where the two cases intersect. Utah Lawmakers have repeatedly argued that drawing congressional maps is the sole authority of the Legislature. At one point, lawyers for the Legislature asked to delay any action on the lawsuit until after the U.S. Supreme Court ruled on Moore v. Harper, arguing if the high court embraces the independent state legislature theory, it would render the challenge to Utah’s maps moot.

Predicting how the Supreme Court may rule on the issue is difficult, if not impossible. Thomas Wolf, Deputy Director of the Democracy Program at the Brennan Center for Justice, says the justices seemed skeptical of the independent state legislature theory.

“During oral arguments, even very conservative members of the Court seemed unwilling to back the theory full frame,” Wolf said.

There’s a possibility that the Supreme Court may not hand down a ruling on the theory at all. After Republican judges took over the North Carolina Supreme Court majority, they overturned the previous decision to throw out the congressional maps. That reversal could lead the U.S. Supreme Court to throw out the case.

“If the Court dismisses Moore v. Harper without ruling on the independent state legislature theory, then we’re back to the status quo, which is the theory is a radical fringe notion, which is not the law,” Wolf said.

He adds the Moore v. Harper ruling may not have any bearing on the Utah case because the defendants may not have properly introduced the independent state legislature theory as part of their defense.

The Utah lawsuit could radically reshape next year’s congressional elections. The plaintiffs want the court to throw out the maps approved by lawmakers in 2021 and have them redrawn in time for the 2024 election. Utah’s four U.S. House members argued in a filing that the Utah Supreme Court should throw out the case because there is no constitutional protection against partisan gerrymandering.

“The Constitution does not stutter,” the filing 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.”

The plaintiffs in the Utah case also want the court to rule that the Legislature overstepped its authority when it reduced the independent redistricting commission to an advisory role, asking that it be reinstated to take drawing maps out of the hands of lawmakers.

Katie Wright, executive director of Better Boundaries, the group that backed the voter-approved ballot measure establishing an independent redistricting commission, says regardless of what the U.S. Supreme Court decides, she’s confident that the plaintiffs will prevail next month.

“Every Utahn deserves the opportunity to have their issues understood and represented. That isn’t possible when you have these districts that split up our cities and our most populous areas and our most rural areas,” Wright said.