How Supreme Court redistricting ruling affects Minnesota law

[MUSIC PLAYING] CATHY WURZER: The US Supreme Court issued a major ruling today that rejects a legal theory that could have reshaped federal elections in this country, giving state legislatures power to set rules for federal elections. The high court's decision could have an important role in preventing political gerrymandering, the deliberate manipulation of electoral district boundaries that create an unfair advantage for a specific party.

Jason Marisam is an associate professor of law at Mitchell Hamline School of Law in Saint Paul. He's been following this case, and he wrote about it this spring for the Michigan Law Review, which happens to have been cited by the authors of three briefs in this specific case taken up by the high court. Professor Marisam, welcome.

JASON MARISAM: Hi, Cathy. Glad to be here.

CATHY WURZER: Glad you're here too. Interesting ruling. The case concerned the independent state legislature theory, which as I understand is based on the Constitution's election clause, and it came from a North Carolina case involving redistricting maps. You want to take it from there?

JASON MARISAM: Yeah, that's right. I mean, from a practical perspective, what we're really talking about is partisan gerrymandering of congressional districts and whether there's any role for courts to be able to fix that problem.

So in 2019, the US Supreme Court had said, there's no role for federal courts there, that they think that's a political question, and there's no way for federal courts to review congressional maps for partisan gerrymandering. So then that led to the question of what about state courts? Can you have a state Supreme Court to say, hey, we think this gerrymandered map violates our state laws and constitutional principles on voting rights? And that's what this case was about.

And what the court did was it rejected the most extreme argument against allowing state courts to review those partisan gerrymandered maps, this independent state legislature theory. The proponents had said, hey, look, the elections clause means that state legislatures draw these congressional maps, and there's zero room for state courts to review them under this theory.

And the court rejected that theory, but it was a narrow opinion. It left open the possibility for other challenges. And the court didn't even rule on whether what North Carolina had done, whether that was OK.

They said, we don't need to because this isn't an argument that the petitioners presented. They focused on this theory, and we're rejecting the extreme aspects of that theory. But there's still a lot up in the air, a lot of uncertainty. We're going to continue to see litigation in this space.

CATHY WURZER: Hmm. So in its most extreme form, which the court, as you say, didn't go for, it would have left both state courts and governors kind out of their traditional roles?

JASON MARISAM: It would have left federal courts and state courts completely out of reviewing maps. This question of governor's authority wasn't squarely presented in this case, and the court had rejected that about a century ago. But if it had adopted, it would have meant zero judicial review of gerrymandering.

So you have legislatures, if they've got one-party control, they can gerrymander the heck out of the Congressional districts, and there's no judicial remedy there. It would have meant either federal or state level. So the opinion preserves the possibility that you can see state Supreme Courts rejecting maps or being partisan gerrymanders. And so we might see this in litigation going forward next year and even this year in Ohio, New York, and maybe Wisconsin in the state courts there.

CATHY WURZER: By the way, who supports this theory? I'm curious.

JASON MARISAM: Yeah. Well, it traces its roots kind of back-- it can go back pretty far historically and get into sort of different doctrinal ins and outs. Politically, originally, you could think of it as being a conservative cause in that the cases where it popped up or cases where you had, for the most part, Republican legislatures gerrymandering-- and then you had a liberal state Supreme Court that was willing to come in and say, hey, we think this violates voting rights.

I think the politics since then have gotten a little more complicated. I mean, we saw Democrats in New York doing partisan gerrymandering, too, and interesting questions about the political ramifications of independent redistricting commissions. So the politics get complicated. But for the most part, it was originally advanced by some sort of conservative causes and opposed by voting rights groups.

CATHY WURZER: Hmm. So, you know, your article for the Michigan Law Review said that if this would have been upheld, voting rights would have become the least protected civil right. So really, you're breathing a sigh of relief then today.

JASON MARISAM: Absolutely, yeah. So crisis was averted. And the reason I wrote that was the theory, the independent state legislature theory, at its strongest goes beyond just maps and congressional maps. It would say any election law that a state legislature passes that would apply to a federal election, there's no room for state court review for constitutional problems.

So this idea that state constitutions can have constitutional protections that protect our civil liberties and civil rights like voting rights would be, for the most part, erased when it comes to these federal elections and would have just left federal constitutional protections, which normally we think of our system of government having both federal and state constitutional protections available. So that crisis was averted.

I'll also say, just for how Minnesota draws its maps, this is really an important decision, too, because we often have divided government when it comes time to draw our maps after the census. For decades, we have not been able to have a legislature agree on a map that gets enacted. So the courts have had to step in and pick the map.

And if this theory had been adopted, it would have said the way Minnesota's been doing it for decades has to change and would have raised really interesting questions of, well, what happens if the legislature truly doesn't agree on a map? What map do we use?

We have to have a map, and the legislature just-- we have a divided government. They're not agreeing. So for now, we avoided that mess, too, in Minnesota. And for the time being, the method we've been using of court involvement here seems like that can continue.

CATHY WURZER: Of course, we should say, you know of what you speak here because I recall you represented the Secretary of State, Minnesota's Secretary of State, in several court cases over how the election was going to be administered during the pandemic.

JASON MARISAM: Yeah, that's right. When I was at the Attorney General's Office, I had the honor of representing the Secretary of State in a host of cases really about how you conduct this pandemic election in 2020. And that's when I first came across this independent state legislature theory. I was litigating in a case where electors for President Trump had sued the state and were pushing aspects of this theory in their briefing, and it was the first time that I had read it.

Now, in the moment, the election's coming up. You're in litigation mode. You're going as fast as you can. So I just packed that away in the back of my head and said, there's something to this. But right now, I got to go write this brief and go argue with the Eighth Circuit Court of Appeals.

But then when I moved over to Mitchell Hamline, had time to think more in-depth about these things, I was able to write an article about it, a Law Review article about it. And it became a hot topic. And the Supreme Court then took this Moore v. Harper case out of North Carolina. And there was a lot of interest in it.

And like I said, I think while they rejected the extreme part of this theory, we haven't resolved everything. There's going to be continued litigation in this space, and the Supreme Court will need to weigh in again at some point to resolve some of these uncertainties.

CATHY WURZER: Do you think that some state courts will now step in and review the voting district maps ahead of the next national election, hurry up and get that done?

JASON MARISAM: It could happen. We still have ongoing fights in Ohio and New York that will continue. I don't know how much those maps will change because of this. This thing has had interesting political dynamics.

Even though this theory was originally pushed more from a conservative end, if the court had adopted it, it would have meant that the New York legislature's partisan gerrymandered map for Democrats would have potentially come alive and helped Democrats. So the politics did get complicated here as well. But even with the rejection of this extreme version, there's still room for contests even this year and next as to maps, yep.

CATHY WURZER: Mm-hmm, interesting. Complicated, as you say, but quite interesting. Professor, thanks for the time.

JASON MARISAM: Yeah. Absolutely. Happy to do it.

CATHY WURZER: Jason Marisam is an associate professor at the Mitchell Hamline School of Law in Saint Paul.