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When I was a law student, I got the chance to hear Justice William Brennan speak at NYU School of Law. To my surprise, the lion of the U.S. Supreme Court didn’t speak about Baker v. Carr or New York Times v. Sullivan or his other great decisions. He talked instead about state courts and state constitutions. They were, he said, underappreciated “guardians of individual rights.” It was the first flush of the conservative wave in federal courts, and Brennan, who had been a state supreme court justice himself, knew how much latent power and promise there was in our federalist system.
This week, we saw that insight play out in Ohio. The Ohio Supreme Court struck down a highly gerrymandered legislative map, for the fourth time in the past year. That’s no typo.
The first version of the map would have given Republicans likely supermajorities in both houses of the legislature with just 54 percent of the statewide vote. The Court keeps striking down the maps; a politician-controlled commission keeps submitting barely-changed gerrymanders. For good measure, the Republicans now are trying to impeach the Supreme Court’s chief justice (also a Republican).
Yes, another frustrating tale of politics in 2022. But look closer: what’s significant here is that it is the state supreme court, not the U.S. Supreme Court, that’s standing up for a fair democracy.
Over the past decade, the federal government has abandoned its role in protecting voting rights. The U.S. Supreme Court eviscerated the Voting Rights Act in a series of rulings, most notoriously Shelby County in 2013. Then in 2019, in Rucho v. Common Cause, the Supreme Court said that partisan gerrymandering is bad, truly, but there is nothing the federal courts can do about it – indeed, the justices barred federal courts from even hearing such claims. Congress has the power to act, and tried to do so with the Freedom to Vote: John Lewis Voting Rights Act. We all know how that turned out.
The withdrawal of Uncle Sam has left a gaping void in the voting rights arena, and states have begun to fill it. Every state but one has a stronger explicit protection for the right to vote than the federal constitution does. State courts, many of which used to interpret their constitutional provisions on voting rights as being synonymous with whatever the Supreme Court says the federal constitution means, are also finding their voices. Courts in North Carolina, Arizona, Maryland, and New York have all recently struck down legislative maps for partisan gerrymandering.
Citizens themselves have passed initiatives to restore voting rights to formerly incarcerated people, create independent redistricting commissions, and ban gerrymandering. Just four years ago voters in Michigan, Colorado, Missouri, and Utah enacted redistricting reform.
Indeed, in Ohio it was a ballot measure that set the standards now being enforced by the court, in litigation brought by the Brennan Center and others.
The fight is far from over. State officials in Wisconsin, for example, stubbornly cling to gerrymandering to maintain their grip on power. And we don’t know how the Ohio story will end. Republicans have appealed to the federal courts to sideline the state supreme court, and the redistricting commission remains unrepentant.
Above all, there is simply no substitute for federal action to protect voting rights and strengthen democracy. The Freedom to Vote Act bars gerrymandering in Ohio and forty-nine other states. But if Congress cannot act, even with a majority in support, because of the filibuster, and federal courts will not act, then we have no choice but to press forward with other strategies. The states, their courts, and their constitutions offer a very promising avenue.