FILE PHOTO: U.S. Supreme Court Chief Justice John Roberts delivers remarks at The American Law Institute?s 2023 Annual Dinner at the National Building Museum in Washington, D.C., U.S., May 23, 2023. REUTERS/Sarah Silbiger/File Photo
After Missouri lawmakers passed a gerrymandered congressional map this fall, opponents submitted more than 300,000 signatures seeking to force a statewide vote on whether to overturn the map. But Republican state officials say they will use the map in the meantime.
Missouri courts now appear likely to weigh in.
“If we need to continue to litigate to enforce our constitutional rights, we will,” said Richard von Glahn, a progressive activist who leads People Not Politicians, which is leading the campaign opposing the gerrymandered map.
As some states engage in an extraordinary redraw of congressional districts ahead of the 2026 midterm elections, state courts may decide the fate of the new maps. President Donald Trump has pushed Republican state lawmakers to gerrymander their states’ congressional maps, prompting Democratic state lawmakers to respond in kind.
Nationwide, state judges are poised to play a pivotal role in adjudicating legal challenges to the maps, which have been drafted to maximize partisan advantage for either Republicans or Democrats, depending on the state. Maps are typically only redrawn once a decade following the census.
While some state courts have long heard map-related lawsuits, the U.S. Supreme Court has all but taken federal courts out of the business of reviewing redrawn maps this year. On Dec. 4, a majority of the court allowed Texas’ new map, which seeks to secure five more U.S. House seats for Republicans, to proceed. A federal lawsuit against California’s new gerrymandered map, drawn to favor Democrats, hasn’t reached the high court.
The U.S. Supreme Court’s brief, unsigned majority decision voiced concern about inserting federal courts into an “active primary campaign,” though Texas’s primary election will occur in March. Critics of the court’s decision have said it effectively forecloses federal challenges to this year’s gerrymanders. The justices could also issue a decision next year that makes it more difficult to challenge maps as racially discriminatory.
State courts are taking center stage after gerrymandering opponents have spent decades encouraging them to play a more active role in policing maps that had been drawn for partisan advantage. Those efforts accelerated after the U.S. Supreme Court in 2019 limited the power of federal courts to block such maps.
“Basically, every one of the 50 states has something in its constitution that could be used to constrain partisan gerrymandering,” said Samuel Wang, director of the Princeton Gerrymandering Project.
State constitutions, which are interpreted by state supreme courts, typically have language that echoes the right to freedom of speech and association found in the First Amendment to the U.S. Constitution, Wang said. They also include a right to equal protection under the law, similar to the 14th Amendment.
Some state constitutions guarantee free and fair elections, language that doesn’t appear in the U.S. Constitution. Thirty states have some form of a constitutional requirement for free elections, according to the National Conference of State Legislatures.
At least 10 state supreme courts have found that state courts can decide cases involving allegations of partisan gerrymandering, according to a 2024 review by the State Democracy Research Initiative at the University of Wisconsin Law School.
So far this year, California, Missouri, North Carolina, Ohio, Texas and Utah have adopted new congressional maps. New maps also appear possible in Florida, Maryland and Virginia. A handful of other states — Alabama, Louisiana, New York and North Dakota — may have to change their maps depending on the outcome of court cases.
Some of those new or potential maps could face legal obstacles. Florida, New York and Ohio all have state supreme courts that have previously found problems with partisan gerrymanders. Maryland Democrats have so far not moved forward with a gerrymander, in part because of fears of an adverse decision from the state Supreme Court.
Four state supreme courts — including in Missouri — have determined that they cannot review partisan gerrymandering claims, though state courts may still consider challenges on other grounds, such as whether the districts are compact or contiguous.
In Missouri’s case, courts could also clear the way for a referendum vote over the new map, which is intended to force out U.S. Rep. Emanuel Cleaver, a Democrat who has represented Kansas City in Congress for the past two decades. Republicans currently hold six of the state’s eight congressional districts.
The map already faces a bevy of lawsuits, most notably over whether state officials must count some 103,000 referendum signatures gathered before the governor signed the map into law; at least 106,000 signatures are needed to send the map to voters.
Opponents of the new map have also filed lawsuits asserting the Missouri Constitution prevents redistricting without new census data and that an area of Kansas City was simultaneously placed into two separate congressional districts.
Missouri Republican Secretary of State Denny Hoskins’ decision this month (relying on an opinion from Missouri Republican Attorney General Catherine Hanaway) to implement the new congressional map, despite a submitted referendum petition, is expected to become the latest legal flashpoint. Opponents of the map argue it is now paused under state law.
Hoskins spokesperson Rachael Dunn said in a statement to Stateline that local election officials have until late July to verify referendum signatures — months after candidate filing ends March 31 and days before the Aug. 4 primary election. At that point, blocking the new map would be all but impossible, even if map opponents have gathered enough signatures to force a vote.
“Once signatures are all verified, the Secretary will certify the referendum based on constitutionality and verification,” Dunn wrote.
Hanaway’s office didn’t respond to questions.
Breaking out of lockstep
As federal courts limit their review of gerrymandering because of U.S. Supreme Court decisions, some state supreme courts are reluctant to wade into the issue because of a practice called “lockstepping.”
State supreme courts often interpret their state constitutions in line with — or in lockstep with — how the U.S. Supreme Court views similar language in the U.S. Constitution. Because the U.S. Supreme Court has declined to limit partisan gerrymandering, some state supreme courts have also declined to impose limits.
Gerrymandering opponents have used a variety of arguments over the years to try to prod state supreme courts out of lockstep. They have emphasized differences in wording between state constitutions and the federal one, and provisions in state constitutions — such as the free elections requirement — not found in the U.S. Constitution.
Sometimes these arguments work — and sometimes they don’t. The North Carolina Supreme Court in 2022 ruled against partisan gerrymandering. But after two Republicans were elected as justices that fall, the court reversed itself months later.
“Across the country, we have seen advocates turn to state supreme courts, and state courts in general, for state constitutional arguments against gerrymandering or voter suppression more broadly. And it’s been met with mixed success,” said Sharon Brett, a University of Kansas associate professor of law. In 2022 as litigation director of the American Civil Liberties Union of Kansas, she unsuccessfully argued a case before the state’s high court challenging Kansas’ congressional map.
In states where legislatures draw congressional maps, some lawmakers argue that state constitutions shouldn’t be interpreted to curb legislative authority over mapmaking. Court-imposed limits amount to violations of the traditional separation of powers, they say, with the judiciary overstepping its authority to interfere in politics.
“We expect them to be nonpartisan. We expect them to be unbiased. We expect them to be fair. We expect them to read the constitution and to protect or at least respect the separation of powers,” said Utah Republican state Rep. Casey Snider, speaking of Utah courts during a floor speech earlier this month.
In Utah, state courts waded through a yearslong legal battle over whether state lawmakers must adopt a non-gerrymandered map. After the Republican-controlled legislature repealed and replaced an independent redistricting process, the Utah Supreme Court last year ruled lawmakers had violated the state constitution.
A Utah district court judge in November then adopted a congressional map that will likely lead next year to the election of a Democrat. The state’s four congressional seats are currently all held by Republicans.
“What we would like is them to redistrict based on population — fairly,” Katharine Biele, president of the League of Women Voters of Utah, said of state lawmakers.
Republican Gov. Spencer Cox called the Utah legislature into special session earlier in December to respond to the judge’s decision. Lawmakers pushed back candidate filing deadlines in hopes that an appeal to the Utah Supreme Court will result in a decision overturning the judge’s adopted map.
They also passed a resolution condemning the judiciary.
Constitutional concerns
As the Indiana legislature weighed a gerrymandered map to boost Republicans this month, some lawmakers were reluctant to constrain state courts. Democrats currently hold two of the state’s nine congressional districts.
The GOP-controlled Indiana Senate voted down the map in a major setback to Trump’s national redistricting push. The vote came after a floor debate where opponents raised concerns about limiting court involvement; the legislation included a provision sending any legal challenge directly to the Indiana Supreme Court, bypassing a jury trial.
Indiana Republican state Sen. Greg Walker said the measure violated the state constitution, which guarantees an “inviolate” right to a jury trial in all civil cases. “In legal terms, ‘inviolate’ has the implication of being sacred, as opposed to being just a piece of the law,” Walker said on the floor.
State Sen. Mike Gaskill, a Republican who sponsored the map, said during a speech that Indiana residents would benefit from a quick process to resolve legal challenges. “Both sides, in any case, want them to be settled quickly so that they don’t cause chaos and interruptions in the elections process,” he said.
If the map had passed, opponents would have likely attacked the measure using a provision of the Indiana Constitution that requires “free and equal” elections.
Stateline reporter Jonathan Shorman can be reached at jshorman@stateline.org.