When Federal Courts Remediate Intrastate Redistricting Stalemates: Parsing What Is Owed Deference When State Policies Conflict

When partisan politics completely frustrate the efforts of a state to redistrict after a census, federal district courts are tasked with the “unwelcome obligation” of imposing court-ordered electoral maps that meet the federal constitutional one-per- son, one-vote requirement. This Comment terms these cases “intrastate redistricting stalemates,” novelly distinguishing them from other Equal Protection one-person, one-vote cases. In the wake of Moore v. Harper, federal courts may be remediating more intrastate redistricting stalemates than ever if state courts are stripped of their power to impose remedial congressional maps as outside the scope of “ordinary judicial review” permitted under the Elections Clause. Remediating intrastate redistricting stalemates is trickier for federal courts than remediating other Equal Protection one-person, one-vote cases. In crafting or selecting remedial maps, the U.S. Supreme Court has instructed federal courts that they must defer to states’ policies and plans. To inadequately do so is reversible error. But when is a state policy or plan owed deference? The answer is clear in cases where a state has recently redistricted but a federal court has struck down the state’s new maps for failure to meet federal constitutional or statutory requirements: the state’s policies as expressed in its recently enacted, post-census reapportionment plan are owed deference to the extent they do not violate federal requirements. But when a state fails to redistrict post-census due to an intrastate stalemate, this Comment argues that there is no recently enacted reapportionment plan owed deference. This Comment argues this holds true whether the intrastate stalemate presents as (1) an intralegislative conflict, due to one or both legislative branches failing to agree on a map or to garner sufficient votes to pass a map; (2) a conflict between the state’s legislative branch and the executive branch via the governor vetoing a legislatively passed map; or (3) a conflict between the state judiciary and the mapmaking body over the state constitutionality of the reapportionment plan. Instead, this Comment argues that the controlling source of state policy owed deference when remediating an intrastate redistricting stalemate must be the state’s constitution over other conflicting sources of state policy. This is particularly critical because often state government parties advocate for their own rejected or stalled reapportionment plans—which do not have the force of law—as proposed remedies in these intrastate stalemate cases. To blindly select a proposed map solely because it was prepared by the branch delegated with state mapmaking power puts the federal court in the position of selecting a winner in a bitter, hyperpartisan dispute that could not exist under the state constitution’s checks and balances—which remain critical after Moore. Instead, a federal court must select or craft a remedial map that (1) comports with all state constitutional commands and controls for electoral map outcomes; and (2) best embodies state redistricting policies as expressed in other valid state statutes

When Federal Courts Remediate Intrastate Redistricting Stalemates: Parsing What Is Owed Deference When State Policies Conflict

When partisan politics completely frustrate the efforts of a state to redistrict after a census, federal district courts are tasked with the “unwelcome obligation” of imposing court-ordered electoral maps that meet the federal constitutional one-per- son, one-vote requirement. This Comment terms these cases “intrastate redistricting stalemates,” novelly distinguishing them from other Equal Protection one-person, one-vote cases. In the wake of Moore v. Harper, federal courts may be remediating more intrastate redistricting stalemates than ever if state courts are stripped of their power to impose remedial congressional maps as outside the scope of “ordinary judicial review” permitted under the Elections Clause. Remediating intrastate redistricting stalemates is trickier for federal courts than remediating other Equal Protection one-person, one-vote cases. In crafting or selecting remedial maps, the U.S. Supreme Court has instructed federal courts that they must defer to states’ policies and plans. To inadequately do so is reversible error. But when is a state policy or plan owed deference? The answer is clear in cases where a state has recently redistricted but a federal court has struck down the state’s new maps for failure to meet federal constitutional or statutory requirements: the state’s policies as expressed in its recently enacted, post-census reapportionment plan are owed deference to the extent they do not violate federal requirements. But when a state fails to redistrict post-census due to an intrastate stalemate, this Comment argues that there is no recently enacted reapportionment plan owed deference. This Comment argues this holds true whether the intrastate stalemate presents as (1) an intralegislative conflict, due to one or both legislative branches failing to agree on a map or to garner sufficient votes to pass a map; (2) a conflict between the state’s legislative branch and the executive branch via the governor vetoing a legislatively passed map; or (3) a conflict between the state judiciary and the mapmaking body over the state constitutionality of the reapportionment plan. Instead, this Comment argues that the controlling source of state policy owed deference when remediating an intrastate redistricting stalemate must be the state’s constitution over other conflicting sources of state policy. This is particularly critical because often state government parties advocate for their own rejected or stalled reapportionment plans—which do not have the force of law—as proposed remedies in these intrastate stalemate cases. To blindly select a proposed map solely because it was prepared by the branch delegated with state mapmaking power puts the federal court in the position of selecting a winner in a bitter, hyperpartisan dispute that could not exist under the state constitution’s checks and balances—which remain critical after Moore. Instead, a federal court must select or craft a remedial map that (1) comports with all state constitutional commands and controls for electoral map outcomes; and (2) best embodies state redistricting policies as expressed in other valid state statutes