Supreme Court ruling means Kansas, Missouri courts can still review congressional maps

The U.S. Supreme Court on Tuesday rejected a legal theory supported by the Kansas Attorney General’s Office that would have given state legislatures sweeping power to gerrymander congressional districts for partisan advantage.

The justices by a 6-3 vote rejected the independent state legislature theory, which holds the U.S. Constitution’s elections clause grants state legislatures the power to set the “times, places and manner” of elections and prevents state courts from intervening.

The theory began gaining traction among Republicans in the wake of the 2020 presidential election, when former President Donald Trump and his allies objected to decisions made by state courts in their unsuccessful attempt to overturn the results of the election.

If the U.S. Supreme Court had adopted the theory, it could have prevented courts in Kansas, Missouri and other states from reviewing congressional maps for partisan gerrymandering – or blocked states from requiring the use of commission’s to draw congressional district boundaries. The high court has already limited the ability of federal courts to review maps for partisan gerrymandering.

Former Kansas Attorney General Derek Schmidt, a Republican, had signed on to an amicus brief last year urging the U.S. Supreme Court to adopt the theory. Schmidt’s term ended in early January. A spokesperson for Kansas Attorney General Kris Kobach didn’t immediately respond to a request for comment.

The Kansas and Missouri legislatures both draw congressional maps, though Missouri uses a commission system to draw state House and Senate districts.

“The Elections Clause does not insulate state legislatures from the ordinary exercise of state judicial review,” Chief Justice John Roberts wrote in the majority opinion.

The Kansas Legislature approved a congressional map last year that split Wyandotte County into two districts for the first time in decades and placed Democratic-leaning Lawrence into the Republican-dominated and largely rural 1st Congressional District. While the Kansas Supreme Court upheld the map, the independent state legislature theory would have likely foreclosed the state court from ruling on any potential challenge to maps in the future.

The Missouri Attorney General’s Office didn’t sign on to an amicus brief in the case. Missouri Secretary of State Jay Ashcroft, a Republican who is running for governor, submitted his own brief arguing that while states have authority over congressional redistricting, the U.S. Constitution’s elections clause isn’t the source of that power.

Ashcroft suggested that relying on the elections clause would open the door to Congress overseeing the redistricting process. A spokesperson for Ashcroft didn’t immediately respond to a request for comment.

The U.S. Supreme Court’s decision centered on North Carolina, where the state Supreme Court struck down districts drawn by Republicans who control the legislature because they heavily favored Republicans in the highly competitive state. The court later reversed itself after conservatives gained a majority on the court in January.