‘Are they going to roll over?’: Gerrymandering fights reach state high courts

JEFFERSON CITY, Missouri — Control of the U.S. House may run through a courtroom in Missouri.

In a red brick courthouse across the street from the state Capitol, the seven black-robed judges of the Missouri Supreme Court on Tuesday weighed the fate of a Republican gerrymander aimed at ousting U.S. Rep. Emanuel Cleaver, an 11-term Democrat from Kansas City.

“Downtown Kansas City is neither close nor united with” rural Missouri counties hundreds of miles away, Abha Khanna, a lawyer with the voting rights firm Elias Law Group, told the court as she described the state’s sweeping new 5th District, which stretches from Kansas City to the rural center of the state.

After the U.S. Supreme Court’s late April decision sharply curtailing the use of race in redistricting, much of the legal fight over gerrymandering is moving to state courts. The decision, Louisiana vs. Callais, gutted Section 2 of the Voting Rights Act, which limited states’ ability to divide districts where a majority of residents belong to a racial minority group.

Southern Republican states have rushed forward new maps over the past two weeks that take advantage of the landmark opinion, adding to a handful of others, including Missouri, that already drew new lines in recent months at President Donald Trump’s behest before the midterms elections this November. Another wave of gerrymanders across the rest of the country will likely follow next year ahead of the 2028 election.

State supreme courts may have the final word on some of the maps. Even if the maps don’t involve issues decided in Callais, like the challenge in Missouri, many states have constitutional or statutory provisions that curb gerrymandering and limit last-minute changes to elections — providing gerrymandering opponents with grounds to challenge new district boundaries.

With federal redistricting lawsuits increasingly difficult, state laws offer gerrymandering opponents another path. 

Thirty states have some form of a constitutional requirement for free elections, according to the National Conference of State Legislatures. And 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. 

“I think state courts are primarily going to be the place where future fights around these maps are playing out in a post-Callais landscape,” said Alicia Bannon, director of the judiciary program at the Brennan Center for Justice at New York University.

Legal challenges abound

The elevated importance of state courts was on full display Friday, when the Virginia Supreme Court invalidated an election in which voters narrowly approved a Democratic map. The decision leaves a new map in California as the party’s only successful response so far to the GOP redistricting onslaught. Democrats have made a longshot request to the U.S. Supreme Court to block the Virginia ruling.

Lawsuits have already been filed in state courts over new maps in Florida and Louisiana. Alabama’s new map could also face a legal challenge in state court, even after the U.S. Supreme Court on Monday cleared the way for the gerrymander to take effect. 

At stake in these courtroom fights is which party will control the U.S. House over the next two years, earning the power to advance or thwart legislation. While Democrats remain generally favored to retake the chamber in the November midterm elections, Republicans will likely emerge from the gerrymandering war with at least a handful of seats secured.

Suddenly, every state supreme court decision — including over a single seat in Missouri — takes on greater significance.

Marina Jenkins, executive director of the National Redistricting Foundation, which is helping challenge the Missouri map, told reporters on Monday that the state’s high court had a “spotlight on” it.

“Is the court going to do what it has done in the past in a nonpartisan way that is faithful to their own precedent,” she asked? “Or are they going to roll over?”

Missouri case

The Republican-controlled Missouri General Assembly in September approved a map intended to leave the state with just one Democrat in Congress, in the St. Louis area. Kansas City was divided among three districts, splitting apart its Democratic-leaning and racially diverse core. 

The Missouri Supreme Court is considering three challenges to the map. Two similar lawsuits argue that some of the congressional districts don’t follow the state constitution’s requirements that districts be as compact as possible.

A third lawsuit argues that the map shouldn’t be in effect for the 2026 election because opponents in December submitted more than 305,000 signatures seeking to force a statewide referendum vote on the lines. In the past, state officials have paused the implementation of measures subject to a referendum until a vote is held, but in this instance they say the new lines are active.

During Tuesday’s oral arguments, the judges sat almost entirely stone-faced as they listened. Only one judge asked a single question during arguments that stretched for more than an hour, offering no sense of how the court would rule.

“There is no such thing as a perfect map or a perfect district,” Missouri Principal Deputy Solicitor General Kathleen Hunker said.

Jonathan Hawley, an attorney representing Missouri voters who argue the referendum means the map isn’t in effect, said his case will decide whether the people of Missouri “still have a meaningful referendum.”

“The referendum right is the people’s veto,” Hawley said.

The Missouri Supreme Court could issue a decision at any time.

Florida’s GOP gerrymander

Only two Southern states, Florida and Kentucky, allow courts to decide partisan gerrymandering cases.

Kentucky, which has a Democratic governor, hasn’t taken up redistricting this year. But a Florida Supreme Court decision striking down a new map there would effectively offset Democrats’ loss at the Virginia Supreme Court.

Florida Republican Gov. Ron DeSantis signed into law a map passed by the state legislature during a special session on the same day as the Callais decision. The new congressional boundaries are designed to hand Republicans up to four additional seats.

Several voting rights groups have sued, alleging the map violates the Florida Constitution. A 2010 amendment approved by voters prohibits districts drawn with the intent to favor or disfavor a political party or incumbent.

“Instead of abiding by this law, the Legislature is defying the will of voters and backing a map that was crafted entirely with partisan intent,” Simone Leeper, senior legal counsel for redistricting at Campaign Legal Center, said in a statement. 

The Campaign Legal Center and the UCLA Voting Rights Project have sued jointly over the map.

DeSantis’s office told state lawmakers ahead of this year’s special session that the 2010 amendment requires the state legislature to account for race when drawing districts — and that the provisions regarding race can’t be severed from the rest of the amendment. In effect, DeSantis contends the whole amendment must be thrown out.

The Florida governor’s pitch, coupled with the Callais decision, persuaded GOP lawmakers.

“I have a ton of comfort because the Callais decision came out,” Florida state Rep. Alex Andrade, a Pensacola Republican, said. “I got to read it, and it perfectly summarizes exactly why we could, and should, change our 2022 maps.”

Map opponents’ chance of success at the Florida Supreme Court is unclear. The court as recently as 2015 blocked a congressional map as an unconstitutional partisan gerrymander, but it has moved to the right in the years since. Six of the seven current justices were appointed by DeSantis and the other was appointed by a different Republican governor.

“The composition of the Florida Supreme Court has changed dramatically since that earlier ruling,” Bannon, the Brennan Center expert, said. “So I think there are questions about will the court be as open to those arguments.”

Process challenges

In other Southern states, map opponents are turning to arguments beside partisan gerrymandering.

The Tennessee chapter of the NAACP has sued Republican Gov. Bill Lee and the state General Assembly to block a gerrymander passed last week from taking effect. The organization alleges Lee violated the state constitution in how he called a special session for a new map. 

Tennessee Attorney General Jonathan Skrmetti, a Republican, has urged a court to dismiss Lee and the legislature from the lawsuit because they don’t conduct elections.

Alabama Democrats and voting rights groups are weighing a legal challenge to a new map that would focus on a 2022 amendment to the state constitution. The amendment requires election law changes to be made at least six months before a general election — a deadline of May 3 this year. Alabama’s redistricting special session began the next day.

In Louisiana, state lawmakers have not yet passed a new map after the U.S. Supreme Court struck down the state’s current lines as an unconstitutional racial gerrymander because the legislature had previously created a second majority-Black district. Lawmakers are expected to advance a map aimed at ousting one of the state’s two Democratic House members, who are both Black.

After the Callais decision, Republican Gov. Jeff Landry suspended the state’s congressional primary elections although roughly 42,000 absentee ballots had already been cast. Lawsuits challenging the suspension have been filed in both federal and state court.

Too late to change?

In Missouri on Tuesday, lawyers for Republican state officials took the opposite approach, urging the state supreme court to keep the map in place for the 2026 election, even if the judges strike it down. Missouri Secretary of State Denny Hoskins, a Republican, told reporters afterward that preventing the state from using the map now would lead to confusion, even as 12 weeks remain before the primary election.

“It’ll be disarray for the people that have been going to town halls and listening to candidates,” Hoskins said. “It would be disarray for the candidates that are running and going out and meeting voters in their district. And it’d be disarray for the local election authorities and county clerks that have already started instituting” the new map.

Cleaver, who is running for reelection, has said that his work ethic or commitment to voters won’t change regardless of his district boundaries. 

“If I have to serve the people who live just outside of Columbia and Jefferson City, then I’ll do that,” he said when he filed to run earlier this year.

Attorneys for the ACLU of Missouri, which supported challenges to the map, said it was unfair to Missouri residents for the state to create a problem and then argue it’s too late to change it. At a rally outside the Missouri Supreme Court on Tuesday, ACLU of Missouri Policy Director Tori Schafer expressed confidence the judges would side with map opponents.

“But let me clear,” Schafer said, “democracy did not begin in a courtroom and it will not be saved in a courtroom.”

Florida Phoenix reporter Mitch Perry contributed to this report.