Utah voters could be stuck with gerrymandered districts until 2026 if state attorneys get their way.
Recently, lawyers for the Legislature and from the Utah Attorney General’s office asked Judge Dianna Gibson to delay proceedings in the case until the U.S. Supreme Court decides whether state courts have any authority to weigh in on redistricting maps.
The dispute stems from a ruling out of the North Carolina Supreme Court that struck down the legislative-drawn maps as unconstitutional partisan gerrymandering that unfairly disenfranchised Democratic voters and favored Republicans.
Several North Carolina legislators asked the U.S. Supreme Court to weigh in, arguing that the U.S. Constitution grants state legislatures the sole power to draw political maps and state courts have no authority to intervene.
Their argument rests on a wild and dangerous concoction known as the “independent state legislature doctrine” that basically state lawmakers have unfettered, unchecked power to gerrymander however they see fit and nobody, including the courts, can do anything to stop them.
It’s a fringe idea, but Justices Clarence Thomas, Neil Gorsuch and Samuel Alito have at least been receptive to the idea and the court agreed to hear the North Carolina case of Moore v. Harper in its upcoming term beginning in October.
If the conservative North Carolina legislators prevail, it could result in most of the Utah case, as well as similar cases in states around the country, being tossed out. So, until the Supreme Court rules, attorneys for the Legislature contend it would be premature to let the challenge to the Utah maps go forward.
Last week, attorneys for the parties challenging the maps argued that the state seems to be assuming the Supreme Court will rule the courts don’t have a role, but the speculation alone doesn’t warrant delaying the proceedings.
There’s another significant problem: There is already a time crunch to get the lawsuit tried and presumably through the appeals process — whichever side prevails — and potentially replacement maps adopted before the 2024 election cycle begins.
The Supreme Court might not issue its ruling until June of 2023, which wouldn’t leave enough time to try the Utah case — meaning, if the maps are struck down, the new, fair maps wouldn’t be able to be in place until the 2026 election.
So if the judge grants even a relatively short delay at the Aug. 24 hearing, it could mean two more years of a sizable portion of Utah voters being deprived of meaningful representation before the wrong is righted.
And there are valid arguments and substantial evidence supporting the idea that the Legislature disregarded fair maps from the voter-approved Utah Independent Redistricting Commission, and instead crafted a plan that would consolidate Republican power and deny the rest of the state a voice.
It’s apparent that Salt Lake County was carved into four pieces to break up the state’s more progressive voters. We know that all four of the districts favor Republicans by at least 20 points. And it is almost impossible that it happened by accident.
We know that because the Independent Redistricting Commission used a computer program to draw 100,000 maps that met the redistricting criteria and 99,500 of them had at least one competitive congressional seat.
Similar proof prompted the courts in North Carolina, Alaska, Maryland, New York and Ohio to toss out congressional and legislative districts gerrymandered by both Democrats and Republicans.
All of these cases —plus Utah’s and dozens more pending in courts around the country, 26 states in all — go out the window if the U.S. Supreme Court somehow buys into the whacky “independent legislature” scheme.
It would be the Wild West. Legislatures in both Republican and Democratic states could do just about anything they want and disenfranchised citizens wouldn’t be able to ask the court to intervene. The only recourse would be the ballot box — and the notion of “If you don’t like having your vote taken away, vote them out” is just absurd on its face.
But the implications of the court embracing the theory go beyond just gerrymandering and to every part of our system of elections, including the potential that state legislatures that didn’t like the outcome of a presidential election could appoint their own slates of electors.
That probably sounds familiar, as it was the plot hatched by the Trump campaign after the 2020 election and the reason Utah Sen. Mike Lee spent all that time calling all those state legislators.
Retired conservative federal judge J. Michael Luttig called the independent legislature theory the “cornerstone of the plan” to invalidate the 2020 election. Once they failed, Trump loyalists, Luttig wrote, set their sites on 2024 and Republicans “have been unabashedly readying that plan ever since.” Getting the court to embrace the idea is the first step, according to the former judge.
The stakes in the North Carolina case are obviously high. But the possibility that the Supreme Court could drop a nuclear bomb on our elections system shouldn’t mean that the Utah lawsuit needs to be stalled.
Utah voters spoke and demanded fair redistricting. They deserve answers to why that didn’t happen and they deserve a determination if it’s OK for the Legislature to take away their votes. More than anything else, with democracy hanging by a thin thread, these plaintiffs fighting to preserve it deserve their day in court.
