A panel of three federal judges appeared reluctant to intervene in Utah’s long-running redistricting fight, questioning whether it is the federal court’s role to insert itself in the case and if it would be better to wait until the Utah Supreme Court rules on the matter.
“Where’s the Utah Supreme Court on this important issue of state law,” asked 10th. U.S. Circuit Court Judge Timothy Tymkovich. “Must we wade into this thicket without guidance from the Utah Supreme Court?”
In fact, the Utah Supreme Court is simultaneously considering the Utah Legislature’s argument that 3rd District Judge Dianna Gibson overstepped her authority when she struck down congressional boundaries passed by Republican lawmakers. Gibson ultimately chose a map proposed by the groups that challenged the Legislature’s map — the League of Women Voters, Mormon Women for Ethical Government and others.
Utah’s high court could rule on the Legislature’s request to block Gibson’s map from being used in the 2026 election as early as Friday.
“The last thing we want to do is wade into an unanswered and important issue of Utah law,” said Tymkovich, who sits on the U.S. Court of Appeals in Denver, but was assigned to be part of a three-judge panel hearing the challenge to the congressional boundaries brought by U.S. Reps. Burgess Owens and Celeste Maloy, along with several state and county elected officials.
Gene Schaerr, the attorney representing the plaintiffs, said it might be manageable to wait until Friday for a Utah Supreme Court decision, but “if they don’t act on the stay request on Friday, there’s going to be a need for this court to act to redress what we think is a pretty clear violation of the elections clause.”
Schaerr is asking the court to discard the map Gibson chose and either revert to the 2021 legislative map — which created four safe Republican districts — or let the Legislature try again to draw a map that complies with Proposition 4, the 2018 voter-approved ballot initiative that banned partisan gerrymandering.
Schaerr argued that the U.S. Constitution gives the Legislature the sole authority to draw congressional boundaries and a state judge cannot infringe on that right.
But Judge Robert Shelby read Schaerr a passage from Branch v. Smith, a U.S. Supreme Court ruling that said just the opposite — that Congress passed a federal law requiring states to have valid maps and the law “applies to action by state and federal courts when the prescribed legislative action has not been forthcoming.”
U.S. District Judge Holly Teeter from Kansas pressed Schaerr on what happens if the federal panel agrees to block the map Gibson chose and the 2021 map is unlawfully gerrymandered. That would leave the 2011 map as the default, but that map is unlawful because it no longer reflects the current population in the districts.
Schaerr said, in that case, the court can tell the Legislature to redraw the map.
“And if the Legislature just won’t?” asked Shelby. “Then what? How does a state court give effect to that federal mandate? If [Gibson] had not produced a viable map, do we just not have an election?”
Schaerr said in that instance, a federal court or Congress could step in but not a state judge.
Mark Gaber, arguing to keep Gibson’s map in place, said the Legislature agreed to the process Gibson used — giving lawmakers time to redraw the map and having the opposing side submit their own. After the Legislature changed the filing deadline to buy more time to challenge Gibson’s ruling, lawmakers could have asked for another try at drawing a map, but they never did.
With deadlines looming, Gaber said, Gibson had no other option and had to comply with Congress’ directive to have a map in place.
“I don’t know what the state district court was supposed to do. Federal law says you have to impose a lawful map when time has run out,” he said. “If the Legislature agreed to a process that has court-imposed maps, if there’s a violation, then private plaintiffs can’t come in and say the Legislature’s power has been abrogated. The Legislature abdicated that power.”
Gaber also argued that Maloy and Owens will not be harmed if the election goes forward with Gibson’s map, but candidates like former U.S. Rep. Ben McAdams would be.
McAdams, who is running in the new Democrat-leaning 1st Congressional District, filed a brief in the case arguing that he had raised nearly a million dollars, hired staff, and gathered 7,000 signatures to qualify for the ballot, all under the assumption that Gibson’s map will remain in place.
Schaerr argued it’s his clients, like Owens, who would be harmed, adding that the current case is that “it’s been pushed by forces aligned with the Democrat Party here in Utah. … The ironic impact of what they’re doing here is, if this succeeds, they’ll essentially unseat the only minority member of Congress from Utah.”
Owens, who is Black, has not said which district he plans to run for in 2026 or if he might just not seek reelection.
Lt. Gov. Deidre Henderson, whose office oversees elections, has said she will execute whichever map the court directs her to use, but she has to have the matter resolved no later than Feb. 23.