Is There Anything Left in the Fight Against Partisan Gerrymandering? Congressional Redistricting Commissions and the “Independent State Legislature Theory”

Derek A. Zeigler*, Jose Urteaga** December, 2023

Partisan gerrymandering is a scourge on our democracy. Instead of voters choosing their representatives, representatives choose their voters. Historically, individuals and states could pursue multiple paths to challenge partisan gerrymandering. One way was to bring claims in federal court. The Supreme Court shut this door in Rucho v. Common Cause. States can also resist partisan gerrymandering by establishing congressional redistricting commissions. However, the power of these commissions to draw congressional districts is at risk. In Moore v. Harper, a case decided in the Supreme Court’s 2022-2023 Term, the petitioners asked the Court to embrace the “Independent State Legislature Theory.” The ISLT, at a minimum, would allow federal review of state interpretations of state law governing congressional elections, including redistricting. Part I distills the Supreme Court’s opinions on redistricting commissions into two potential doctrinal routes: a more restrained version (ISLT-Lite) and a maximalist version (ISLT-Max). Part II proposes a framework to analyze existing congressional redistricting commissions for their constitutionality under each theory. Part III makes recommendations for building constitutionally sound congressional redistricting commissions under each theory, both for states with existing commissions and for those looking to reduce partisan gerrymandering in the future. While the future of ISLT, and congressional redistricting commissions more broadly, remains uncertain, this Note offers an analytical framework so states may continue to constitutionally alleviate partisan gerrymandering through the congressional redistricting commission framework.

Authors’ Note

This Note was originally meant to address the Court’s recent opinion in Moore v. Harper before it rendered its final decision.¹ On June 27, 2023, the Court ruled 6-3 against the North Carolina House of Representatives, which had argued that the U.S. Constitution’s Elections Clause insulates from state judicial review the state legislature’s decisions regarding rules for federal elections. Legal scholars hold differing opinions on what exactly the opinion means for the idea commonly referred to as the “Independent State Legislature Theory” (ISLT). Some argue that Moore is a complete repudiation of the fringe theory that would have left state legislatures completely unaccountable to state courts and citizen initiatives.² Others argue that even if Moore rejected the most extreme version of the theory, the Court has left the door open for it to intervene should the justices determine that state court review violates the Elections Clause in a particular instance.³ Indeed, even after Moore, state legislators continue to push the ISLT to challenge commonsense election laws in states like Michigan before the 2024 elections.⁴ If the door to invoking the theory truly remains open, as it seems to be, it is crucial to foresee the possible versions of ISLT and the catastrophic impact its adoption could have on the country. This piece provides insight into 1) what a “lighter” version of the theory would look like should the Court ever articulate what the “ordinary bounds of judicial review” are,⁵ and 2) the impact such a minimalist theory, as well as the temporarily rejected maximalist theory, would have on the landscape of congressional redistricting commissions. Discourse around ISLT and its potential ramifications should only deepen in light of Moore. We hope that this piece helps contribute to that burgeoning scholarship.

Introduction

On June 27, 2023, the Supreme Court of the United States issued its ruling in Moore v. Harper, a case that could have untethered state legislatures from checks by any other state authorities when setting their voting procedures for federal elections.⁶ The Court refused to go that far, but also noted that state courts did not have “free rein” to check their legislatures on matters of state law.⁷ This Note explores the uncertain landscape of congressional redistricting commissions after Moore.⁸ Historically, in all states with two or more congressional districts, state legislatures drew districts for both state and federal elections.⁹ This partisan redistricting practice created perverse incentives for politicians—dominant-party legislators focused not on elevating the voice of the people but instead on entrenching their own power.¹⁰ However, in a trend reaching back to the 1960s that has been picking up steam in the last decade, legislatures, constitutional delegations, and individuals across the nation have been fighting back against “partisan gerrymandering” by adopting alternative approaches to redistricting.¹¹

Partisan gerrymandering occurs when the majority party in a state legislature draws electoral districts to disproportionately benefit itself at the expense of minority parties, regardless of the partisan breakdown of voters statewide.¹² Scholars and courts alike view partisan gerrymandering as dangerous to democracy, particularly due to its interference with the ability of the people to fully exercise their will over their elected representatives.¹³ For decades, there were three primary avenues to resist partisan gerrymandering: individuals could sue in federal¹⁴ or state court¹⁵ or states (either through their citizens or legislatures) could create alternative redistricting options—typically in the form of commissions—so that legislatures would no longer wield the sole power to draw the maps.¹⁶

In Rucho v. Common Cause, the Supreme Court held that partisan gerrymandering is a nonjusticiable political question,¹⁷ closing federal court doors to all plaintiffs hoping to pursue a partisan gerrymandering claim. This left two primary options to alleviate the problem: bring state-level cases or advocate for redistricting commissions.¹⁸ While the Court did not remove the state court option completely in Moore, the opinion instills further uncertainty over the constitutionality of congressional redistricting by commissions.

In Moore v. Harper, the Court heard a challenge to the North Carolina Supreme Court’s ruling that struck down the state legislature’s redistricting maps as an unconstitutional partisan gerrymander under the state constitution.¹⁹ The Supreme Court decided that the U.S. Constitution does not completely prohibit state courts from interpreting state law regulating federal elections,²⁰ thereby declining to adopt what has become known as the “Independent State Legislature Theory.” The ISLT posits that the U.S. Constitution—in explicitly delegating authority to set voting procedures for federal elections within Article 1, Section 4 (the Elections Clause) and Article 2, Section 1 (the Electors Clause)²¹ to each state via the “Legislature thereof” language²²—refers exclusively to the state legislature and excludes other state actors, including state courts conducting judicial review.²³ At a minimum, adopting ISLT would insulate state laws governing federal elections from challenges based on state laws and constitutions. Without federal courts as an alternative, removing these claims from the grasp of state courts would have left individuals with no judicial recourse for partisan gerrymandering. This would have, in turn, left redistricting commissions as virtually the only weapon left against state legislatures egregiously gerrymandering their maps for partisan gain. The Court’s decision in Moore leaves the power of commissions to draw maps for federal congressional elections intact, for now. The Court, however, left open a door for future challenges to these institutions.²⁴ If the Court decides later to walk through that door, it seems inevitable that the Court would “condemn complaints about districting to echo into a void.”²⁵

So, where does the decision in Moore leave us? Will commissions remain a viable means to fight partisan gerrymandering in federal elections, or must we all accept partisan gerrymandering as an inevitable scourge on democracy? Must we live with shouting into the void?

There is plenty of scholarship on ISLT’s history and merits (or lack thereof).²⁶ We will not fully rehash it here.²⁷ Instead, this Note examines two potential versions of ISLT that the Supreme Court could still adopt after Moore and analyzes the possible impacts of each on the viability of redistricting commissions.²⁸ Part I lays out two possible versions of ISLT that the Court could adopt: “ISLT-Max”²⁹ and “ISLT-Lite.”³⁰ Part II applies both theories to every existing congressional redistricting commission and attempts to predict how each will fare constitutionally under both theories. Finally, Part III provides recommendations to states on how to best prepare for a potential ISLT world.

I. ISLT-Max or ISLT-Lite?

The first time an ISL-like theory appeared in modern Supreme Court opinions was in Bush v. Palm Beach County Canvassing Board,³¹ the prequel to Bush v. Gore.³² In Palm Beach County, the Court hinted at a theory that would untether state legislatures from state oversight when they pass laws governing presidential elections,³³ but it ultimately punted this question and sent the case back down to the lower courts.³⁴ That same Term, the Court settled the 2000 Presidential Election issues in Gore,³⁵ where the ISLT entered center stage of the legal debate for the first time.³⁶

In his Gore concurrence, Chief Justice Rehnquist posited that “a few exceptional cases in which the Constitution imposes a duty or confers a power on a particular branch of a State’s government” may exist and that Article II, Section 1, Clause 2 is one of them.³⁷ That provision states that “[e]ach State shall appoint, in such Manner as the Legislature thereof may direct,” electors for President and Vice President.³⁸ Thus, the legislature’s election laws gain “independent significance” subject to review by federal courts, notwithstanding preexisting state court interpretation.³⁹ This theory—that federal courts can intervene to interpret state election laws concerning federal elections despite state court decisions regarding the same, and thereby protect state legislature independence, became known as the Independent State Legislature Theory.

Even at these early stages, the theory faced stark criticism. There were four separate dissents in Gore, each condemning ISLT.⁴⁰ For years, ISLT rarely reared its head. But recently it has made judicial appearances with increasing frequency. Each time ISLT does so, it seems to take on a slightly different iteration. This makes it difficult to predict exactly how far the Court may stretch the theory (should it choose to expand upon it at all) with the wiggle room it left itself in Moore. Ultimately, though, the Court has hinted at and coalesced around two main forms of ISLT in its jurisprudence, including in Moore: a more restrained theory and a maximalist theory.

In Arizona State Legislature v. Arizona Independent Redistricting Commission, Chief Justice Roberts’s dissent put forth the more restrained approach. He accepted the basic ISLT premise that the term “Legislature” in the federal Constitution means the “representative [state] body.”⁴¹ The chief justice clarified that “the state legislature need not be exclusive in congressional districting, but neither may it be excluded.”⁴² He went on to note that “reading the Elections Clause to require the involvement of the legislature will not affect most other redistricting commissions . . . . [M]any States have commissions that play an ‘auxiliary role’ in congressional redistricting. But in these States, unlike in Arizona, the legislature retains primary authority over congressional redistricting.”⁴³ By putting forth this version of ISLT—what we term “ISLT-Lite”—the chief justice suggested he may be willing to let some redistricting alternatives survive constitutional scrutiny, so long as they do not “displace” the legislature and act only in an “auxiliary role.”⁴⁴ Justices Alito, Scalia, and Thomas signed on to the chief justice’s opinion.⁴⁵ The majority did not adopt Chief Justice Roberts’s view and instead rejected the theory outright.

Justice Ginsburg’s majority opinion in Arizona State Legislature rejected the narrow interpretation of the word “legislature” that proponents of ISLT support and instead opted for a more capacious understanding—one that depends on the kind of function the legislature looks to exercise⁴⁶ (consistent with Justice Stevens’s dissent in Gore).⁴⁷ The Court held congressional redistricting was a lawmaking function,⁴⁸ then defined “legislature” not strictly as the representative body but instead as any entity exercising the lawmaking power.⁴⁹ To support its position, the Court relied on founding-era dictionary definitions,⁵⁰ the purpose of the Elections Clause,⁵¹ principles of sovereignty,⁵² and the truism that governmental power is ultimately derived from the people.⁵³ The Court emphasized that this reading of “legislature” is especially necessary in the context of redistricting.⁵⁴ The Arizona Constitution equally vests lawmaking power in both the people and the state legislature: the people via ballot initiative, and the legislature via statute.⁵⁵ So, the Court held that “the people may delegate [by ballot initiative] their legislative authority over redistricting to an independent commission just as the representative body may choose to do.”⁵⁶ This ruling was groundbreaking for the redistricting cause, affirming that voters across the United States could constitutionally exclude their state representatives from drawing electoral maps and instead vest that power in independent congressional redistricting commissions.

The Supreme Court looks much different today than it did in 2015,⁵⁷ and while the majority in Moore did cite to Arizona State Legislature favorably at times,⁵⁸ it remains unclear what those views mean for ISLT in the congressional redistricting process.⁵⁹ Just four years after Arizona State Legislature, Chief Justice Roberts seemed to double down on the ISLT-Lite he espoused in his Arizona dissent. In Rucho v. Common Cause, without deciding on the merits of ISLT, he pointed to the existence of independent commissions and a “state demographer” as possible ways for states to tackle partisan gerrymandering.⁶⁰ Further, in his concurrence in Democratic National Committee v. Wisconsin State Legislature, Chief Justice Roberts affirmed “the authority of state courts to apply their own constitutions to election regulations.”⁶¹ Likewise, in his majority opinion in Moore, he noted that the term “Legislature” in the Elections Clause does not necessarily “preclude a State from vesting congressional redistricting authority in a body other than the elected group of officials who ordinarily exercise lawmaking power.”⁶² In all three instances, the chief justice likely viewed the role of these nonlegislative actors as consistent with ISLT-Lite because the commission still only retains an “auxiliary role” in congressional redistricting.⁶³ Other justices began departing from the chief in significant respects at this point in his writing—most prominent among them being Justice Gorsuch.

Justice Gorsuch wrote a separate concurrence in Democratic National Committee, joined by Justice Kavanaugh, making clear he disagreed with the extent to which the chief justice limited ISLT. Justice Gorsuch posited that the “Constitution provides that state legislatures—not federal judges, not state judges, not state governors, not other state officials—bear primary responsibility for setting election rules.”⁶⁴ Based on how Justice Gorsuch uses the word “primary,” we take it to mean “of first rank, importance, or value.”⁶⁵ Justice Gorsuch thus presented the more expansive version of the theory: “ISLT-Max.” To survive ISLT-Max, the state legislature must play a “primary” role, or one “of first rank, importance, or value,” in each step of the redistricting process. While both Chief Justice Roberts and Justice Gorsuch use the word “primary” to describe the legislature’s necessary role to survive their theories, the chief justice’s ISLT-Lite rests more on functional concerns about commissions displacing legislative power, whereas Justice Gorsuch’s ISLT-Max depends on formalist concerns about other nonlegislative state officials, rather than the legislature (as a body of legislators), wielding primary power over congressional redistricting. Therefore, for example, the chief justice’s theory readily incorporates a governor’s veto in the plan enactment process as standard-issue legislating might, but such a gubernatorial role under Justice Gorsuch’s theory would render the scheme unconstitutional. It remains uncertain if Moore marks a meaningful departure from the chief justice’s ISLT-Lite views in these prior opinions as the majority opinion does not expound the theory and since it left the door open for future challenges.⁶⁶

While Justices Thomas and Alito embrace some form of ISLT, it is unclear how far they would agree to take it. Neither wrote separately nor joined either Chief Justice Roberts’s or Justice Gorsuch’s opinions in Democratic National Committee.⁶⁷ Justices Thomas and Gorsuch did, however, join Justice Alito’s statement in Republican Party of Pennsylvania v. Boockvar, which refused to go as far as ISLT-Max.⁶⁸ Justice Thomas wrote a dissent in another case where he made it clear that his problem is with “nonlegislative officials” making election law decisions.⁶⁹ He did not elaborate on what he meant by “nonlegislative officials.” However, he seemed to abandon this potentially middle-ground approach in his Moore dissent. While dissenting on the merits, Justice Thomas formally differentiated between power wielded by the state, which “in the ordinary sense of the Constitution, is a political community of free citizens . . . organized under a government sanctioned and limited by a written constitution,”⁷⁰ compared to that of the power wielded by the legislature, which “generally means ‘the representative body which makes the laws of the people.’”⁷¹ He went on to state that the Elections Clause’s function is a lawmaking one, and that courts look to “a State’s written constitution to determine the constitutional actors in whom lawmaking power is vested.”⁷² To Justice Thomas, the term “Legislature thereof” in Article I means “‘the lawmaking body or power of the state, as established by the state Constitution,’ or . . . ‘that body of persons within a state clothed with authority to make the laws.’”⁷³ By taking this approach in Moore, it seems as though Justice Thomas may more firmly ascribe to the ISLT-Max camp along with Justice Gorsuch.

Justice Gorsuch joined Justice Thomas’s dissent in full, whereas Justice Alito did not join the merits portion of the dissent.⁷⁴ As such, Justice Alito seems torn on the theory. He dissented from a denial of emergency relief to the defendants in Moore v. Harper, noting “there must be some limit on the authority of state courts to countermand actions taken by state legislatures when they are prescribing rules for the conduct of federal elections,” implying the federal Constitution is not a complete limitation.⁷⁵ However, he also said,

This Clause could have said that these rules are to be prescribed “by each State,” which would have left it up to each State to decide which branch, component, or officer of the state government should exercise that power. . . . [But] [i]ts language specifies a particular organ of a state government, and we must take that language seriously.⁷⁶

Given that he implies there is not a complete limit on state court authority, Justice Alito may support ISLT-Lite rather than ISLT-Max.⁷⁷

Ultimately, Chief Justice Roberts and the three more liberal justices refused to endorse ISLT-Max in Moore, in line with their prior views on the matter.⁷⁸ Surprising some, these four found unlikely bedfellows in Justices Barrett and Kavanaugh. Justice Barrett had not previously opined on the theory before Moore’s decision, but her questioning at oral argument suggested she would vote against a full-throated ISLT-Max.⁷⁹ Justice Kavanaugh seemed to support ISLT-Max before his time on the bench.⁸⁰ These two signing onto the majority opinion inspires hope that any future ISLT case that could threaten congressional redistricting commissions would at least not result in the most dangerous, ISLT-Max, approach. However, Justice Kavanaugh invited others to make persuasive arguments on this point in his sole concurrence in Moore, leaving a question mark in his voting column for potential future cases.⁸¹

We know Justice Gorsuch supports ISLT-Max. Justice Alito seems to fall to the ideological right of the chief justice in saying state courts lack a role in congressional redistricting. However, he has not signed onto Justice Gorsuch’s ISLT-Max articulation. He seems more aligned with Justice Thomas’s middle-ground, nonlegislative-officials view, but that view seems abandoned now even by Justice Thomas in his Moore dissent where he endorsed the more radical ISLT-Max theory.⁸²

Regardless of which iteration of ISLT may take hold in a future case post-Moore, historical legislative practice shows that there is a spectrum of legislative involvement when it comes to congressional redistricting.⁸³ How far removed from the actual legislature or legislators is too much in each context? The next Part applies our proposed analytical framework to all existing congressional redistricting commissions to determine the likelihood of their constitutionality under either version of ISLT.

II. Legislative Control over Congressional Redistricting Commissions and Potential Implications Under ISLT

No two congressional redistricting commissions are exactly alike. However, they do all share three key criteria that will likely determine their constitutionality under ISLT. The first criterion is commission creation, or how the commission came to be. The second is commission membership and selection: who sits on the commission and how did they come to occupy one of those coveted seats? The third criterion, plan enactment, is also critical: what part does the commission play in creating and enacting the congressional district plan for the state?

When considering ISLT and its impact on congressional redistricting commissions’ constitutionality, these procedural criteria matter far more than the substantive elements of how commissions draw their maps.⁸⁴ In other words, the constitutionality of a commission under ISLT would not turn on the substantive redistricting criteria states use to draw their maps, such as compactness, contiguity, or respect for municipal boundaries. Instead, constitutionality would depend on the procedural criteria named above.⁸⁵ The Court left room for various versions of ISLT to become law in the future, with multiple forms of the theory suggesting that it might be unconstitutional for any entity that is not the legislature to draw those maps. Ultimately, the fate of a congressional redistricting commission depends on one key question: does the state legislature—in the face of an operative congressional redistricting commission—maintain a sufficient level of legislative control over the congressional redistricting process for each of our three criteria?

Two questions derive from this primary one: 1) does a state legislature exercise enough control to meet ISLT-Max’s higher threshold (in other words, does it retain “primary responsibility” over congressional redistricting as Justice Gorsuch requires);⁸⁶ or, if not, 2) does the legislature retain enough control to at least meet the lower threshold of ISLT-Lite (i.e. does the commission possess only an “auxiliary role” in congressional redistricting compared to the legislature’s “primary” one, as Chief Justice Roberts requires)?⁸⁷ If a state legislature does not wield sufficient control to meet the respective ISLT-Max or ISLT-Lite threshold for any given criterion, then we predict that the state’s commission would automatically fail under the respective ISL theory.

After determining these thresholds, this Part tries to answer these key questions about legislative control by using a totality of the circumstances test to assess each congressional redistricting commission’s potential to survive under either ISLT. This test requires analyzing each commission’s creation, membership and selection, and plan enactment processes to determine how much congressional redistricting authority the commission possesses compared to the state legislature. We also comparatively analyze these commissions to better understand their differences and how these differences impact their constitutionality under ISLT. After these assessments, we predict each commission’s likelihood for constitutionality under both ISLT-Max and -Lite based on how the three criteria map onto each commission.

We employ a spectrum model charting each existing congressional redistricting commission’s position based on these three criteria to project the commission’s likely validity under ISLT-Max and ISLT-Lite. The spectrum model is a linear diagram that depicts a range from least (left) to most (right) legislative control for each criterion. We break down each of the three key procedural criteria into subparts, categorized by the level of legislative involvement, then assign each commission to the appropriate subpart. The less control the state legislature exercises over a procedural element, the more likely a court would hold that particular commission unconstitutional under a given ISLT, and vice versa.⁸⁸ We then create an overall spectrum model based on the assessments of how well the individual commissions fare on these three criteria. The final model plots the likelihood of a federal court upholding each commission’s congressional districting power as constitutional under ISLT-Max or ISLT-Lite.

On each of our models, we use a dashed line to demarcate the minimum thresholds required to satisfy each criterion under each theory. Think of these dashed lines as delineating how “tall” (in terms of legislative control) each commission must be to “ride the ride” (be constitutional). If the commission does not reach the minimum threshold for any criterion, it must fail under that theory. It cannot “ride the ride.” However, achieving one threshold does not necessarily mean a commission is constitutionally safe. For a commission to guarantee its survival under both ISLTs, the commission must meet both threshold requirements across all three criteria. The final model in Section II.D shows the commissions that are likely to survive ISLT-Max, ISLT-Lite, or neither based on these thresholds and assessments of the totality of the circumstances.

A. Criterion 1: Commission Creation

We break down the “commission creation” criterion into six subcategories, ordered from least to most legislative control: whether the commission was created by 1) executive order, 2) voter-led ballot initiative, 3) constitutional convention, 4) voter-initiated state statute, 5) legislatively referred constitutional amendment, or 6) legislative statute.

Executive Order	Maryland
Voter-Led Ballot Initiative	Arizona, California, Michigan
Constitutional Convention	Connecticut, Hawaiʻi, Montana
Voter-Initiated State Statute	Utah
Legislatively Referred Constitutional Amendment	Alaska, Colorado, Idaho, Maine, New Jersey, New York, Ohio, Virginia, Washington
Legislative Statute	Indiana, Iowa, New Mexico

Table 1: How States Created Their Commissions⁸⁹

To meet the ISLT-Lite threshold, a congressional redistricting commission must have at least been created by a state constitutional convention. This includes only those commissions created by such a convention, or a voter-initiated state statute, legislatively referred constitutional amendment, or legislative statute. Only with these creation procedures does the commission arguably not render the state legislature “auxiliary” in the congressional redistricting process. For a commission created by executive order, the legislature has zero involvement in making the commission⁹⁰ and the legislature cannot amend an executive order once it is issued. Therefore, the legislature exerts the least amount of control over a commission created by executive order. Voter-led ballot initiatives, where voters can directly amend their state constitutions by vote, are a close second compared to executive orders. Legislators are capable of amending the voter-led changes to their state constitutions but have no control over the initiation and enactment of a ballot measure.⁹¹ However, garnering sufficient state legislative support to amend a constitution is quite difficult, rendering the legislature’s ability to change the language enshrined in the constitution by a voter-led ballot initiative largely out of its control.⁹² With no, or practically zero, legislative control over this creation process for these types of commissions, the commission almost certainly renders the legislature “auxiliary,” causing these commissions to fail even under ISLT-Lite.

Commissions created by constitutional convention allow state legislatures to exert more control. Although rules for constitutional conventions vary by state, the three commissions created by constitutional convention all share the same key characteristic: the legislature initiates the commission-creation process by requesting a constitutional convention.⁹³ Then, the legislature can refer amendments to the constitution. So, while the legislature itself does not operate as the voting body at a constitutional convention, the constitutional convention avenue does provide the state legislature with multiple opportunities to influence the commission’s creation. Commissions created by voter-initiated state statutes allow for still more legislative control because voters propose and enact them with zero input from legislators. The legislature can amend the language of these statutes, however, by simply enacting a new statute.⁹⁴ The state legislature can typically pass a new statute much more easily than it can amend the state constitution via constitutional convention or otherwise.⁹⁵ These types of commissions likely meet the threshold to survive under ISLT-Lite because these state legislatures were intimately involved in the creation process (constitutional convention route) or could easily alter the makeup of the commission later by majority-voted statute (voter-initiated state statute route).⁹⁶ Therefore, the state legislatures have more than an “auxiliary” role; however, the legislatures still likely do not have “primary responsibility” in the redistricting process under this criterion to meet ISLT-Max’s survival threshold because nonlegislators have the ability to initially draft and create the commissions without legislative input.

To survive under ISLT-Max, a congressional redistricting commission must have at least been created by a legislatively referred constitutional amendment. This means that only those commissions created by such an amendment, or those created by legislative statute, meet ISLT-Max’s threshold for this criterion and would likely survive a constitutional challenge. Only with these creation procedures does the legislature arguably retain “primary authority” over redistricting.

Commissions created by legislatively referred constitutional amendments give even greater control to the state legislature. The legislative referral process sees the legislature freely delegate its redistricting authority to the commission on its own initiative if voters approve a state constitutional amendment. The legislature can later amend the commission’s structure through a similar process should it decide to change course. While the state constitution is almost certainly harder to amend than a state statute,⁹⁷ the legislature at least has the potential for influence and control over the commission’s creation at both ends of this amendment process. The legislature’s responsibility for initiating the change (while knowing how difficult it is to reverse course) underlines the strength of legislative control in this category.

Finally, the legislature’s control is at its apex when it creates a redistricting commission via a regular state statute. Using that process, the legislature, acting of its own accord, chooses to give away its redistricting power. It retains power to alter the extent of the commission’s control over the redistricting process, or vitiate it completely, through the normal legislative process. Both of these creation procedures rest almost entirely in the control of the legislature, not voters or any other state entity. Therefore, the legislature maintains “primary” control over the redistricting process, rendering the commissions in these states consistent with ISLT-Max at least on this criterion.

Model 1: Commission Creation Spectrum Model

B. Criterion 2: Commission Membership & Selection

We break down the “Commission Membership & Selection” criterion into seven subcategories, ordered from least to most legislative control: 1) legislators are not involved, 2) legislators strike some applicants from the commissioner pool, 3) legislators propose a commissioner pool for 50% of commissioners, 4) legislators choose less than 50% of commissioners, 5) legislators choose at least 50% of commissioners, 6) legislators are 50% of commissioners, and 7) all commissioners are legislators.⁹⁸

Table 2: Legislative Power over Commissioners⁹⁹

Legislators are not involved	Maryland
Legislators strike some applicants from the commissioner pool	California, Michigan
Legislators propose commissioner pool for 50% of commissioners	Colorado
Legislators choose fewer than 50% of commissioners	Alaska (2/5 Commissioners)
Legislators choose at least 50% of commissioners	New Mexico (4/7 Commissioners), Ohio (4/7), New Jersey (8/13), Idaho (4/6), Maine (10/15), Arizona (4/5), Iowa (4/5), Montana (4/5), New York (8/10), Washington (4/5), Utah (6/7), Hawaiʻi (8/9)
Legislators are 50% of commissioners	Virginia
All commissioners are legislators	Connecticut, Indiana

To meet the ISLT-Lite threshold, state legislatures must have the power to choose, by appointment, at least some commissioners to serve on the commission. The appointment power, regardless of if state law allows legislators to appoint themselves or proxies, will help ensure the legislature is not rendered “auxiliary” in the process. The legislature has the least legislative control over commissions where legislators cannot sit as commissioners themselves, influence the pool from which commissioners are selected, or appoint anyone to serve as a commissioner. In this scenario, the legislature is completely excluded from deciding who sits as a commissioner, and hence, who draws and proposes the commission’s maps. Commissions where a nonlegislative entity such as the state’s secretary of state or supreme court chooses the commissioners, but the legislators can at least partially influence the pool of potential commissioners by striking applicants, allow for more legislative control over commissioner selection.¹⁰⁰ Legislators exert even greater control when they can directly choose the pool of potential commissioners for at least 50% of the commissioner slots from which a nonlegislative state authority then appoints the commissioners.¹⁰¹ These two categories—where the legislature has influence over the commissioner pool—differ primarily in the number of potential commissioners the legislature has control over and which entity initially chooses who enters that pool. In the first subcategory, a nonlegislative entity determines the pool, from which the legislature strikes only a handful of options, leaving the nonlegislative entity with dozens of potential commissioners from which to choose. By contrast, for the second subcategory, the legislature wields greater control by proposing a large percentage of the commissioners in the pool, but a nonlegislative entity still wields significant control over choosing who becomes a commissioner from that pool. In all three of the above categories, the legislature is either entirely cut out of, or maintains merely a minor role in, influencing who becomes a commissioner with the power to draw the maps. As such, these commissions likely fail to meet the requirements of ISLT-Lite.

State legislatures have much greater control over commissions where they can directly appoint individuals to serve as commissioners, instead of just influencing the pool of potential commissioners, because it remains within the power of the legislature—not another state entity—to choose the people that become commissioners. The power to directly appoint at least some commissioners to the commission is likely the smallest amount of legislative control that survives ISLT-Lite under this criterion. If the state legislature possesses any less control than a direct appointment power, then the commission arguably plays more than just an “auxiliary role” in redistricting compared to the legislature. Of the two categories meeting this description, the legislature, naturally, has less power over commissions where it chooses less than 50% of commissioners. For the commissions where the legislature maintains the power to appoint at least 50%, but not 100%, of commissioners, it has greater influence over the redistricting process by controlling more seats on the commission. Most commissions fall within this latter appointment category. The appointment procedures vary greatly between these different states,¹⁰² but most states disallow their state legislatures from appointing current local, state, or federal officeholders to the commission.¹⁰³ Some do, however.¹⁰⁴

Regardless of these more specific scenarios, commissions in the “at least 50%” category all likely pass muster under ISLT-Lite because the legislature maintains a greater than “auxiliary” role in the process by choosing how to compose a majority of the commission’s membership. Arguably, these commissions could have met the ISLT-Max threshold of “primary responsibility” as well; however, the common fact that the appointees within the legislatures’ control either cannot or may not (depending on the state) be legislators themselves sufficiently breaks legislative control over the commissions such that those processes do not meet the “primary” requirement under ISLT-Max. Instead, these appointees are more analogous to “other state officials,” whom Justice Gorsuch specifically prohibits under ISLT-Max.¹⁰⁵ So, while insufficient to satisfy the demands of ISLT-Max, these appointee-commission structures still likely survive constitutional scrutiny under ISLT-Lite.

The lowest level of legislative control a state legislature can exercise over a commission’s membership selection process to survive ISLT-Max is likely where at least 50% of the commissioners are guaranteed to be legislators themselves. At this level of control and more, the legislature arguably retains “primary authority” over redistricting because it ensures that legislators, as representatives of the legislature itself, constitute the “primary” voting bloc on the commission. Without support from the legislators on the commission, the commission cannot pass any plan, rendering the legislators’ votes ones of “first rank, importance, or value.”¹⁰⁶ Through these commissions, legislators directly represent the state legislature’s own interests, rather than wielding only indirect power through appointments. Finally, legislative control over the commissions is at its apex when state legislators hold every seat on the commission. In this last scenario, there is no question that the legislature maintains “primary responsibility” over the commission’s membership, as no other entity plays a role and no other nonlegislative individual is likely to sit on the commission. This almost guarantees that these commissions would survive ISLT-Max.

Model 2: Commission Membership & Selection Spectrum Model

C. Criterion 3: Plan Enactment

We break down the “Plan Enactment” criterion into six subcategories, ordered from least to most legislative control: 1) commissions draw, pass, and enact maps, 2) commissions choose maps drawn by legislative staff, subject to approval by the state supreme court, 3) commissions draw maps, requiring approval by the legislature and subject to gubernatorial veto, 4) commissions draw maps requiring only approval by the legislature, 5) commissions draw and pass maps only if the legislature fails to pass maps, and 6) commissions draw and pass maps only if the legislature fails to pass maps, subject to change or voidance by legislative statute.

Table 3: Legislative Power over Plan Enactment¹⁰⁷

Commission draws, passes, and enacts maps	Alaska, Arizona, California, Hawaiʻi, Idaho, Michigan, Montana, New Jersey
Commission chooses maps drawn by legislative staff, subject to approval by the state supreme court	Colorado
Commission draws maps, requiring approval by the legislature and subject to gubernatorial veto	Iowa, Maine, Maryland, New Mexico, New York, Utah
Commission draws maps requiring only approval by the legislature	Virginia, Washington
Commission draws and passes maps only if the legislature fails to pass maps	Connecticut, Ohio
Commission draws and passes maps only if the legislature fails to pass maps. Additionally, these maps are subject to change or voidance by legislative statute	Indiana

To meet the ISLT-Lite threshold, commissions must leave the legislature with a role in the drawing and enactment process. If the legislature does not have the ability to at least provide its disapproval or approval over a proposed redistricting plan, it is hard to see how one could consider the commission to have only “auxiliary” responsibility over the process. State legislatures possess the least amount of legislative control over commissions that can draw, pass, and enact maps without any legislative check. These commissions completely exclude the state legislature from any authority over the map-drawing process, a critical juncture in congressional redistricting.¹⁰⁸ Legislatures possess slightly more control over commissions where legislative staffers, who are at least ostensibly overseen by the legislature, draw the initial maps. Here, legislative staffers submit the maps they draw to the commission, which then enacts the maps subject to approval by the state supreme court. While the legislature cannot directly influence the enacted plans through its own review process, it does have indirect control over the initial maps because the legislative staff itself is housed within the legislative branch. Neither commission type in these categories is likely to survive ISLT-Lite because the legislature maintains practically no role in drawing the finalized, codified map. As such, the commission retains primary control over the map-drawing process and renders the legislature’s influence merely “auxiliary” in nature.

Commissions that draw maps, but cannot freely enact those maps without outside checks, provide legislatures with greater control that is likely sufficient to survive ISLT-Lite. These commissions’ maps are subject to the usual legislative process, including legislative adoption and presentment to the governor for veto.¹⁰⁹ The only difference in this normal process is that a commission, rather than the legislature, has the opportunity to first draw the maps. However, those maps cannot become law without legislative and gubernatorial approval. As such, the legislature maintains a critical role—typically final approval—in the map-drawing process. This critical role granted to the legislature, and the veto power retained by the governor, is the threshold level of legislative control we believe is necessary for commissions to survive ISLT-Lite. Any less control than this and the commission is arguably playing more than an “auxiliary role” in redistricting. The ability for the governor to veto these commissions’ maps, however, ensures that they do not survive ISLT-Max. Chief Justice Roberts suggested that this gubernatorial power would sufficiently render the commission merely “auxiliary” in nature.¹¹⁰ As such, the governor’s veto ability as part of the normal legislative process would likely not kill a commission under ISLT-Lite.

Legislatures have greater control over commissions that draw maps that only require approval by the legislature for enactment, without presentment to the governor. In adopting these maps, the legislature acts independently from any other check aside from judicial review of the substantive, but not procedural, criteria used for the maps; however, the legislature still does not have autonomy to draw the maps itself.¹¹¹ This is the smallest amount of legislative control possible under this criterion for commissions to likely survive ISLT-Max because the legislature retains ultimate authority to decide upon the enacted map. No map can become law without the legislature’s approval and no other state entity can override that approval. State legislatures possess even greater control in the next category, which includes the more traditional “backup” commissions. These commissions draw the maps only if the legislature fails to do so first.¹¹² Only then does the commission become operative and draw and enact a plan in the legislature’s place. The legislatures maintain significant, or even total, control on the front end, rendering the commissions inoperative in many redistricting cycles. However, once the commission does activate, the legislature loses its control.¹¹³ Finally, the legislature exercises the most control over commissions that draw maps subject to change or nullification during the ordinary legislative process; namely, when the legislature has the ability to amend or adopt the final maps by statute, or simply reject a commission’s maps in favor of its own. The final map is always the legislature’s in this scenario, and these commissions hold no power on their own to enact a map into law. As such, these legislatures likely retain “primary responsibility” sufficient to survive ISLT-Max.

Model 3: Plan Enactment Spectrum Model

D. Putting It All Together

Here, we put it all together. This final model divides the commissions into three sections: 1) those that federal courts would likely find constitutional under either theory, 2) those that federal courts would likely find constitutional under ISLT-Lite but unconstitutional under ISLT-Max, and 3) those that federal courts would likely find unconstitutional under either theory.

This final model illustrates where the minimum legislative control thresholds are for both theories (“primary responsibility” for ISLT-Max and “auxiliary role” for ISLT-Lite). We again denote these thresholds with dashed lines. We use a totality of the circumstances approach rather than a formalistic one to determine if a commission is constitutional under a given ISL theory and where a commission falls for its likelihood of survival in comparison to others along the spectrum. Ultimately, we predict eighteen commissions are vulnerable to constitutional challenge under ISLT-Max, with ten of those commissions vulnerable under ISLT-Max and ISLT-Lite.

Model 4: All-Encompassing Spectrum Model

1. Commissions Most Likely to Be Constitutional Under Either Theory

Commissions will likely survive ISLT-Max in only two states: Indiana and Virginia. These are the only two commissions that reach ISLT-Max’s thresholds across all three criteria.

a. Indiana

Even though Indiana has a congressional redistricting commission, its state legislature effectively controls every step of the congressional redistricting process. Indiana’s state legislature ranks first in legislative control over all three criteria. In essence, Indiana’s commission is a facade: a commission in name only.

The legislature created the congressional redistricting commission via legislative statute.¹¹⁴ Likewise, the legislature can eliminate the commission at any time by simply passing another statute. This fact bolsters the commission’s chances of surviving ISLT-Max, particularly compared to congressional redistricting commissions created by legislatively referred constitutional amendments.¹¹⁵ The legislature undoubtedly exercises “primary responsibility”¹¹⁶ over the commission’s creation and continued existence.

For the second criterion, commission membership and selection, all of the commissioners on Indiana’s commission are legislators,¹¹⁷ a membership structure that effectively renders the commission a legislative committee on redistricting. This is the greatest possible control legislators can possess over a commission and is by far the most authority any legislature wields over the examined commissions.¹¹⁸ The legislature not only exercises “primary authority” in this area; it exercises exclusive authority.

The legislature also maintains practically total control over the commission under the plan enactment criterion as well. Indiana’s legislature has the power to pass a congressional map as a statute without the commission even becoming operative.¹¹⁹ When operative, the commission sends the maps to the legislature’s redistricting committee for approval.¹²⁰ The governor “shall” adopt the maps passed in this manner.¹²¹ Further, the maps are still subject to legislative amendment or nullification through the normal legislative process after enactment, meaning the legislature can always pass a different map if it disagrees with the commission’s chosen plan.¹²² Therefore, the legislature retains “primary” control over the finalized, codified congressional map.

b. Virginia

Virginia’s commission also meets the ISLT-Max threshold for all three of the evaluated criteria even though the commission wields slightly more control over the congressional redistricting process than Indiana’s.

First, the Virginia state legislature initiated the creation of the commission by passing a legislatively referred constitutional amendment, which voters adopted.¹²³ As part of this structure, the legislature codified a requirement that state legislators would automatically comprise 50% of the commissioner seats.¹²⁴ Further, the legislature selects the pool of other potential candidates from which another state body chooses the remaining 50% of commissioners,¹²⁵ meaning the legislature also indirectly chooses the remaining commissioners who are not guaranteed legislators.¹²⁶ So, the legislature heavily influences commissioner selection even for the seats not held by legislators themselves. While the commission has the power to draw the maps in the first instance, the legislature must approve any map the commission adopts before it becomes law.¹²⁷ This gives the legislature not only “primary” but sole authority over the enactment of the maps.

A federal judge is likely to uphold Virginia’s commission even if the Supreme Court adopts ISLT-Max. The governor plays no role in redistricting.¹²⁸ The Supreme Court of Virginia plays a limited role insofar as it acts as a “Plan B” if the commission and legislature fail multiple times to pass a map.¹²⁹ This puts Virginia’s commission on slightly shakier ground than Indiana’s, as Justice Gorsuch’s ISLT-Max posits that not even state judges can “bear primary responsibility for setting election rules.”¹³⁰ When considering all other factors, however, it seems highly unlikely a judge would interpret this backstop measure as “primary” intervention by a nonlegislative state entity. Further, it seems unlikely Virginia’s commission would be in danger for this reason because the state court would almost never play a role in the process.¹³¹ Therefore, Virginia’s commission likely survives under ISLT-Max, even if the case is not as open-and-shut as Indiana’s.

2. Commissions Most Likely to Survive ISLT-Lite but Fail Under ISLT-Max

There are eight commissions likely to fail under ISLT-Max but survive scrutiny under ISLT-Lite: Ohio, Connecticut, Washington, Iowa, New Mexico, Maine, New York, and Utah. Thus, the route the Court may choose on ISLT is most critical in these states. While these commissions all meet the ISLT-Lite thresholds for all three criteria, they also each have characteristics that remove “primary responsibility” over congressional redistricting from the state legislature under one or more of our criteria and place that control in the hands of “other state officials” who are nonlegislative.¹³² This ensures they fail to survive ISLT-Max. However, under Chief Justice Roberts’s test for ISLT-Lite, the legislature likely does wield sufficient oversight over these commissions so as not to “displace” its authority too much. Therefore, a federal court would likely find the commissions only play an “auxiliary role.”¹³³

a. Ohio

Ohio meets the ISLT-Max threshold for two criteria (commission creation and plan enactment) but it falls below the ISLT-Max threshold for criterion two (commission membership and selection). Therefore, even though Ohio’s legislature does maintain a high degree of control over the congressional redistricting commission, and hence the redistricting process, it is unlikely that its commission will survive ISLT-Max. However, since the commission does meet the ISLT-Lite threshold for all three criteria, it likely survives under that theory.

The Ohio legislature initiated the creation of the commission by passing a legislatively referred constitutional amendment.¹³⁴ As part of that new constitutional text, the legislature retained the power to appoint a majority—four out of seven—of the commissioners.¹³⁵ Ohio law does not prohibit the legislature from selecting legislators for these seats, meaning that there is a real possibility that legislators themselves will hold over 50% of the voting power on the commission. In the last redistricting cycle, Ohio legislators held all of those seats.¹³⁶ Further, the commission could be inactive in any given redistricting cycle, since it only becomes operative if the legislature first fails to enact its own maps by a supermajority vote.¹³⁷ In creating the commission by legislatively referred constitutional amendment, the legislature delegated a portion (but not all) of its authority to the commission to act as a majority-legislator backup that could create new maps. The legislature also ensured the process of passing these new maps would be easier by lowering the threshold to adopt them to a simple majority vote.¹³⁸ In these ways, the legislature gave itself greater control over the commission and its redistricting process than almost any other commission in our sample. Nonetheless, while it is clearly possible that legislators could hold a majority of the commission’s seats, the fact that this may not occur if legislators choose otherwise calls into question whether the legislature’s role in the membership selection process is truly primary. Without more of a guarantee of legislator presence on the commission, the commission likely does not survive ISLT-Max.

At this high level of legislative control, Ohio’s commission will likely survive ISLT-Lite, but not ISLT-Max. Like Virginia’s legislature, Ohio’s remains intimately involved in the congressional redistricting process. It wields primary authority to enact its own maps and the process does not allow for a governor’s veto.¹³⁹ But nonlegislative state actors are more involved in Ohio’s commission structure than in either Indiana or Virginia. The legislature only wields appointment power over four of seven commissioner seats and has no power to select the remaining three commissioners. Instead, Ohio’s constitution requires the governor, auditor, and secretary of state to automatically hold those three seats.¹⁴⁰ This runs afoul of Justice Gorsuch’s position that “no[] other state officials” can bear “primary responsibility” in the congressional redistricting process.¹⁴¹ On the other hand, the legislature, as opposed to voters, wielded initial control over creating the commission and chose to delegate this power away.¹⁴² Without more guaranteed legislative representation on the commission, it seems unlikely Ohio’s commission would survive ISLT-Max. However, this appointment scheme, combined with the other factors, seems highly likely to meet the “auxiliary” requirement of ISLT-Lite.

b. Connecticut

Connecticut’s commission would likely fail scrutiny under ISLT-Max because its score for the first criterion, commission creation, does not reach the necessary minimum threshold for ISLT-Max, even though it ranks highest for membership selection and plan enactment. However, its commission does meet the requisite ISLT-Lite thresholds for all three criteria, including commission creation. Therefore, Connecticut’s commission likely survives ISLT-Lite.

The commission was created by constitutional convention, not by the legislature. This process saw nonlegislators redirecting power usually belonging to the state legislature to another state authority.¹⁴³ This fact alone renders the commission unlikely to survive ISLT-Max.

However, if the U.S. Supreme Court were to adopt ISLT-Lite, it would most likely find Connecticut’s commission constitutional. First, the commission only activates if the legislature fails to enact its own maps.¹⁴⁴ Thus, the commission does not displace the legislature’s enactment power. It simply operates as a backup should the legislature fail to complete its redistricting duty. Second, if the commission does act, the commissioners are almost certainly all legislators. No law prohibits legislators from sitting as commissioners and historically the commissioners have all been legislators.¹⁴⁵ Further, legislators have the power to select every single commissioner, rather than only a subset, ensuring they maintain complete control.¹⁴⁶ At this level of legislative oversight, Connecticut’s commission seems almost guaranteed to pass ISLT-Lite.¹⁴⁷

c. Washington

Washington’s commission meets the ISLT-Max thresholds for commission creation and plan enactment but fails to meet the corresponding threshold for commission membership and selection. In this way, the commission likely fails ISLT-Max because the legislature cedes “primary responsibility” to the commission via its membership. The commission does, however, likely survive ISLT-Lite as it meets the thresholds for all three criteria.

The legislature chooses the majority of commissioners, but legislators may not serve on the commission at all.¹⁴⁸ Therefore, the legislature does not have “primary responsibility” over drawing the maps,¹⁴⁹ failing ISLT-Max.

However, Washington’s commission likely does survive ISLT-Lite. Like in Virginia and Ohio, Washington’s legislature initially acted to establish the commission and willingly chose to delegate its authority over congressional redistricting to the commission by passing a legislatively referred constitutional amendment.¹⁵⁰ The legislature retained power to appoint four of the five commissioners, maintaining its “primary authority” over who draws the maps—likely satisfying ISLT-Lite.¹⁵¹ The legislature also retained the power to reject the commission’s proposed congressional plans.¹⁵² The legislature must adopt any plan passed by the commission before it becomes law. The governor cannot veto these legislative enactments, meaning the legislature has the final say on the governing plan.¹⁵³ That gives the legislature sole authority in passing maps drawn by the commission. Consequently, the commission acts in an auxiliary capacity throughout the process.

d. Iowa & New Mexico

The Iowa and New Mexico commissions rank identically in each of the three criteria. Two structural factors remove the legislatures from having “primary responsibility” over each part of the redistricting process, putting them below the minimum control thresholds and rendering the commissions unconstitutional under ISLT-Max.¹⁵⁴ First, as in Washington, state legislators cannot sit on Iowa or New Mexico’s commissions.¹⁵⁵ Legislators thus have a degree of separation between themselves and the drawing of the maps. Second, the map-enactment process allows for a gubernatorial veto, permitting the governor to reject even those maps the legislature agrees to enact by the nonlegislative commission.¹⁵⁶ This gubernatorial intervention puts another state official in the position to rebuff the legislature, removing primary responsibility from the legislature over both map enactment and drawing. Since the commissions fail to reach the minimum threshold of legislative control for membership selection and plan enactment, a federal court would likely find these commissions unconstitutional under ISLT-Max.

However, there is likely sufficient legislative oversight to allow these commissions to survive a constitutional challenge under ISLT-Lite. Both commissions meet all three ISLT-Lite thresholds for our criteria. Statutes created both commissions,¹⁵⁷ which is the highest level of legislative control possible for the first criterion, commission creation. Those statutes gave each legislature “primary responsibility” in this part of the process sufficient to satisfy ISLT-Max,¹⁵⁸ far exceeding the “auxiliary” responsibility requirement of ISLT-Lite.¹⁵⁹ The commissions draw the maps, but the legislature retains authority to appoint most of the commissioners (80% in Iowa; 57% in New Mexico).¹⁶⁰ The commissions then submit those maps for approval through the usual legislative process: approval by the legislature with presentment to the governor.¹⁶¹ Chief Justice Roberts is not so much concerned about whether there are other actors in the process (unlike Justice Gorsuch). Instead, he seems more concerned about displacement of the legislature by the commission. So, the possibility of a gubernatorial veto likely does not put these commissions at risk under ISLT-Lite, especially in light of the chief justice’s beliefs on the legislative role of the governor’s veto.¹⁶²

e. Maine

Maine’s commission is also likely to fail under ISLT-Max. Maine’s commission does not reach the ISLT-Max threshold for the third criterion: its map-enactment process allows for gubernatorial veto.¹⁶³ Although Maine performs well under the other criteria, the opportunity for a state official to step in and rebuke legislature-approved maps is likely dispositive for Justice Gorsuch’s theory, which says that state legislators, “not federal judges, not state judges, not state governors, not other state officials” can participate.¹⁶⁴

Maine’s commission still has a significant amount of legislative oversight, and we predict it would easily survive ISLT-Lite. Maine’s legislature meets the ISLT-Lite thresholds for all three of our criteria. As in Washington, the Maine legislature chose to amend its state constitution and create a commission via a legislatively referred constitutional amendment.¹⁶⁵ Although the amendment ceded some legislative power to the commission, the legislature retained “primary authority” for drawing and passing congressional maps. The legislators appoint two thirds of the commission, and in the most recent commission, all ten legislator-appointed members were themselves legislators.¹⁶⁶ The members not appointed by legislators still have a vote, giving the commission a nonlegislator voice.¹⁶⁷ As in Iowa and New Mexico, maps passed by Maine’s commission are subject to a gubernatorial veto.¹⁶⁸ These elements demonstrate the commission still only plays an “auxiliary” role without “displac[ing]” the legislature.¹⁶⁹ Thus, it would likely fail ISLT-Max, but survive ISLT-Lite.

f. New York

New York’s commission likely fails under ISLT-Max because it fails to reach ISLT-Max’s thresholds for commission membership and map enactment. First, as in Washington, legislators are not allowed to sit as commissioners, even though they can appoint a majority of those commissioners.¹⁷⁰ That removes the legislature from having “primary responsibility” over the map-drawing process, which alone likely renders the commission unconstitutional under ISLT-Max. Second, as in New Mexico, Iowa, and Maine, New York’s governor has the power to veto any maps drawn by the commission and passed by the legislature.¹⁷¹ This strong role for a nonlegislative entity is likely dispositive in determining the unconstitutionality of the commission under ISLT-Max.

However, New York’s commission would likely survive ISLT-Lite as the legislature attains the threshold of control for all three criteria under ISLT-Lite. The legislature created the commission via a legislatively referred constitutional amendment.¹⁷² Further, the commission’s maps are subject to the legislative process before they become law.¹⁷³ Legislators also appoint an overwhelming majority of commissioners (eight out of ten).¹⁷⁴

g. Utah

Utah’s commission fails ISLT-Max because the legislature’s control over plan enactment does not rise to the minimum legislative control threshold under ISLT-Max. As in New York, the governor can veto the maps drawn by Utah’s commission and passed by the legislature.¹⁷⁵ This role by a nonlegislative “state actor” seems dispositive in rendering the commission unconstitutional under ISLT-Max.¹⁷⁶

The commission would likely survive ISLT-Lite, however, because the legislature meets ISLT-Lite’s control thresholds for all criteria. Most importantly, the legislature can ignore the commission. A voter-initiated state statute created Utah’s commission, meaning the legislature can amend how it operates.¹⁷⁷ Indeed, after its creation, the legislature amended the commission to make it solely advisory.¹⁷⁸ The commission draws maps that the legislature can adopt, but in practice the legislature ignores the commission and draws its own maps, subject to gubernatorial veto.¹⁷⁹ It seems unlikely that a federal court would deem this kind of advisory commission anything other than “auxiliary.”¹⁸⁰ Further, the state legislature can appoint a majority of the commissioners, even though legislators cannot themselves serve on the commission.¹⁸¹ Thus, the commission would likely survive ISLT-Lite.

3. Commissions Likely to Be Unconstitutional Under Either Theory

That leaves ten commissions a federal court would likely hold unconstitutional even under ISLT-Lite: Idaho, New Jersey, Alaska, Colorado, Hawaiʻi, Montana, Arizona, Maryland, California, and Michigan. None of these commissions meet the ISLT-Lite thresholds for all three criteria and are unlikely to survive under either theory.

a. Idaho & New Jersey

The Idaho and New Jersey commissions share identical characteristics under our three criteria. In both states, the legislatures meet the ISLT-Lite control threshold for commission membership and the ISLT-Max control threshold for commission creation. However, neither legislature has enough legislative control to meet the minimum threshold under ISLT-Lite for plan enactment: once the commissions pass their maps, the maps become law without any legislative involvement.¹⁸²

The state legislatures created these commissions via legislatively referred constitutional amendments,¹⁸³ suggesting a high level of legislative control. However, by delegating all power to draw and enact the plans to the commissions, the legislatures ceded “primary responsibility” in that process.¹⁸⁴ Commissions are not limited to an “auxiliary role” in redistricting if they can enact congressional plans without any legislative input. That seems to directly contravene exactly what Chief Justice Roberts looks to avoid in his understanding of ISLT.¹⁸⁵

Therefore, during plan enactment (criterion three), the commissions displace the state legislatures in the redistricting process. While the legislatures’ ability to appoint a majority of the commissioners provides the legislatures with slightly more control,¹⁸⁶ this is unlikely to save these commissions under ISLT-Lite because the commissions themselves retain all authority to draw, pass, and enact maps without sending those maps to the legislatures for approval.¹⁸⁷ Lastly, even though the legislatures chose to cede this plan enactment authority to the commissions via legislatively referred constitutional amendments, Chief Justice Roberts is clearly concerned about not just legislative displacement in creation, but also about the legislatures maintaining more than “auxiliary” control in the enactment stage.¹⁸⁸ If the legislatures do not meet the control mark for plan enactment, a high degree of control over commission creation is unlikely to save the commissions under ISLT-Lite. Therefore, in the absence of greater legislative control over plan enactment, a federal court is unlikely to find these commissions constitutional under ISLT-Lite.

b. Alaska

Alaska’s commission likely fails under ISLT-Lite for the same reason as Idaho’s and New Jersey’s: they all allow their commissions to pass the maps unilaterally, without legislative oversight.¹⁸⁹ Therefore, Alaska’s commission similarly does not meet the ISLT-Lite legislative control threshold over plan enactment. While Alaska’s commission does meet the ISLT-Lite control threshold for commission membership selection, it barely fairs better on this criterion than does New Jersey’s or Idaho’s commission. While legislators in New Jersey and Idaho can appoint a majority of the commission, giving legislators some authority to pass the maps by proxy, legislators in Alaska can only appoint two out of five commissioners.¹⁹⁰ This makes the Alaska commission the only one where legislators have appointment power but appoint only a minority of commissioners.¹⁹¹ While the Alaska legislature did create the commission by legislatively referred constitutional amendment,¹⁹² and therefore meets the ISLT-Max control threshold for commission creation, that fact alone is unlikely to overcome the low legislative control on the other criteria. In turn, it is unlikely that a judge would find the commission plays only an “auxiliary role” in the redistricting process.¹⁹³ Therefore, with this low overall level of legislative control, the commission would likely fail under ISLT-Lite.

c. Colorado

Colorado’s commission structure is different in at least two ways from any other commission examined thus far. These differences make it even less likely to survive under ISLT-Lite than the previously discussed commissions.

Unlike in Alaska, where the legislature can appoint some commissioners, Colorado legislators cannot directly appoint any commissioners,¹⁹⁴ making its constitutionality under ISLT-Lite highly suspect as it falls below the ISLT-Lite control threshold for the membership selection criterion. A nonpartisan legislative staff¹⁹⁵ draws the initial congressional district plans,¹⁹⁶ which ostensibly provides the legislature with some control over the map drafting and enactment processes possessed by the commission. A federal court would presumably consider legislative staff as legislative officials but may not consider them equivalent to the legislature itself. This additional level of separation suggests that the legislature would not have “primary authority” over the commission in a formalistic sense;¹⁹⁷ instead, the legislature would have authority over the legislative staff that then submits its maps to the commissioners to consider for adoption and enactment.¹⁹⁸ Therefore, even though the legislative staff resides within the state legislature, its authority seems too far removed from the legislators to survive under ISLT-Lite. Since Colorado’s legislature also does not reach the ISLT-Lite control threshold for plan enactment, this provides further evidence that it is likely to fail under ISLT-Lite.

The final nail in the coffin for Colorado’s commission is the fact that the maps it adopts are subject to approval by the Colorado Supreme Court.¹⁹⁹ This requirement, coupled with the lack of legislative involvement in the membership selection process and the drawing of proposed plans, seems to ensure the commission fails under ISLT-Lite because the state supreme court—not the state legislature—exercises “primary authority” over the maps’ enactment. While the state legislature created the commission itself via a legislatively referred constitutional amendment,²⁰⁰ this high level of legislative control over criterion one (commission creation) is unlikely to outweigh the significant lack of legislative control on the other two criteria. Further, the legislature’s attenuated oversight ability over the “nonpartisan” staff that aids the commission is likewise unlikely to overcome the significant lack of legislative control in these other areas. Consequently, a federal court would likely find Colorado’s commission unconstitutional under ISLT-Lite.

d. Hawaiʻi & Montana

The Hawaiʻi and Montana commissions fare equally across all three criteria. While the commissions meet the ISLT-Lite control thresholds for commission creation and membership selection, they fail to meet the threshold for plan enactment. Therefore, both likely fail to survive ISLT-Lite.

These commissions were created at constitutional conventions.²⁰¹ While legislatures had no direct voting role in creating the commissions at the conventions,²⁰² the fact that the legislatures called for the conventions initially would likely ensure the legislatures maintained enough control over this criterion for the commissions to survive ISLT-Lite. Further, the state legislatures can appoint a majority of commissioners to the commissions, even if legislators cannot serve as commissioners.²⁰³ This further increases legislative control over the commissions. However, unfortunately for these commissions’ chances of surviving ISLT-Lite, they unilaterally draw and pass the congressional maps without providing the state legislatures a role in the process.²⁰⁴ This complete displacement of the legislatures in plan enactment, which also occurs in Idaho and New Jersey, is likely dispositive in determining the commissions’ unconstitutionality under ISLT-Lite. Such power gives the commissions far more than “auxiliary” control over plan enactment.²⁰⁵ After considering all these factors, it is likely that such a low level of legislative authority over the redistricting process would result in both commissions failing under ISLT-Lite.

e. Arizona

Arizona’s commission will likely fail constitutional scrutiny under ISLT-Lite based on our three criteria. Compared to other legislatures, Arizona’s legislature has close to the lowest amount of legislative control over its commission under two criteria: commission creation and plan enactment. For both, the commission fails to meet the ISLT-Lite control threshold. Voters themselves created the commission by ballot initiative.²⁰⁶ This process embedded the commission into the state constitution, insulating it from legislative alteration.²⁰⁷ Additionally, the commission draws and passes maps unilaterally. It does not need the approval of the legislature or any other institution.²⁰⁸ While the legislature can appoint most of the commissioners, which ensures the commission meets the ISLT-Lite threshold for the membership selection criterion, legislators cannot sit on the commission themselves.²⁰⁹ Combined, this minimal-to-nonexistent level of participation by the legislature in each part of the redistricting process puts Arizona’s commission in one of the most precarious constitutional positions.

Arizona’s commission is perhaps the easiest to assess under these theories as it was directly at issue in Arizona State Legislature.²¹⁰ Chief Justice Roberts wrote his dissenting opinion establishing the modern ISLT-Lite in direct response to a challenge to the Arizona commission’s constitutionality. Chief Justice Roberts’s dissent made clear that Arizona’s legislature does not “retain[] primary authority over congressional redistricting”;²¹¹ instead, the commission does. Therefore, its structure has effectively already been deemed to violate ISLT-Lite.²¹² Given that the chief justice finds Arizona’s commission unconstitutional, commissions with even less legislative control are similarly easy targets for unconstitutionality under ISLT. Three such commissions exist: Maryland’s, California’s, and Michigan’s.

f. Maryland

Maryland’s commission differs significantly from all other commissions. Maryland’s governor created the commission by executive order without the legislature’s involvement.²¹³ The executive order prohibits legislators from serving as commissioners and gives them no role in choosing commissioners.²¹⁴ This displaces the legislature’s authority in map drawing and commission creation, dooming the commission under ISLT-Lite. The commission not only fails to reach the ISLT-Lite control threshold for commission creation and membership selection, but also ranks at the lowest reported level for legislative control in these areas across all the commissions we considered. These factors practically guarantee that the commission would not survive under either theory.

The Maryland legislature does retain sufficient legislative control for the commission to meet the ISLT-Lite threshold over plan enactment, but this element alone is unlikely to render the commission constitutional under ISLT-Lite. The governor’s commission draws plans that it proposes to the state legislature,²¹⁵ which the legislature can eschew in favor of its own map.²¹⁶ If it does ignore the commission’s plans, the legislature must pass its own plans, subject to gubernatorial veto.²¹⁷ This amount of control over plan enactment is surely not insignificant; indeed, we predict that all other commissions with equivalent control over plan enactment would survive ISLT-Lite.²¹⁸ However, unlike these other commissions, this higher degree of legislative control over plan enactment is unlikely to overcome the fact that the legislature played no part in the creation of the commission and holds no control over who sits on the commission. These other states also saw their commissions meet the ISLT-Lite thresholds for the other two criteria, which Maryland’s commission clearly does not pass.

The governor still “displaced” the legislature’s authority without its consent by unilaterally creating a commission and conferring it with some legitimacy and redistricting power. Chief Justice Roberts took strong issue with a voter-led ballot initiative displacing Arizona’s legislature,²¹⁹ and he likely would not approve of a different nonlegislative actor creating a commission with the same effect—removing the legislature from the creation process. Even more, the fact that the governor explicitly prohibited legislators from serving on the commission, and therefore excluded them from having an influence on the commission’s drafted plans,²²⁰ further removes the legislature’s control from this part of the process. Lastly, while the legislature does not have to adopt the commission’s plan, it likely must at least consider the plan before outright rejecting it, lest the governor’s constitutional power to prepare and send maps to the legislature be rendered superfluous.²²¹ This ensures the commission does at least have agenda-setting power in the plan enactment arena. Such a power is at most “auxiliary” compared to the legislature’s power for the plan enactment criterion, but the commission retains far more than “auxiliary” redistricting power when considering all three factors together. Therefore, it is unlikely Maryland’s commission survives ISLT-Lite.

g. California & Michigan

California’s and Michigan’s commissions are almost identical in their procedures and have the same ranking for each of our three criteria: near last in legislative control. Their legislatures wield the least amount of control over these commissions compared to any other state legislature. Further, their legislatures are the only ones that do not meet the ISLT-Lite legislative control thresholds for any considered criterion. For these reasons, we predict that California’s and Michigan’s commissions are the most likely to be struck down by a federal court as unconstitutional under ISLT-Lite.

Like voters in Arizona, voters in California and Michigan usurped congressional redistricting power from their states’ legislatures by creating these commissions through voter-led ballot initiatives.²²² The states’ constitutions prohibit any legislators from sitting as commissioners on these bodies and even prohibit legislators from directly appointing commissioners, leaving legislators with only a minor power to strike some applicants from consideration as commissioners.²²³ Once formed each cycle, the commissions act entirely independently from the state legislatures in drawing, adopting, and enacting a congressional redistricting map.²²⁴ At no point in these processes do the California or Michigan legislatures possess the power to amend, oversee, or change these maps, and no presentment to the governor is necessary for the maps to become law.²²⁵

Due to this significant exclusion of legislative control over the commissions in their redistricting processes, these commissions would almost certainly fail under ISLT-Lite. In structuring these commissions in this way, voters severed the power of congressional redistricting from their legislatures.²²⁶ Therefore, the commissions do not play a simply “auxiliary role”; they directly “cut [the legislature] out of that process” and almost entirely “displace” any of its control, in contravention of ISLT-Lite.²²⁷ California and Michigan voters did exactly what ISLT-Lite warns is forbidden under the Elections Clause: they “address [redistricting] concerns by displacing their legislature.”²²⁸ It is unlikely any federal court would uphold these commissions under ISLT-Lite.

III. Recommendations

Our predictions leave eighteen states’ commissions²²⁹ vulnerable to constitutional challenge under ISLT-Max, with ten of those commissions²³⁰ vulnerable under ISLT-Max and ISLT-Lite. Presumably, the states with these vulnerable commissions will want to (and should) continue pursuing the goal of eliminating or minimizing partisan gerrymandering.²³¹ Further, other states currently without a congressional redistricting commission may want to create one.²³²

While Indiana’s commission—where the state legislature retains almost absolute control over redistricting—may seem like the best model for states looking to create congressional redistricting commissions that would survive constitutional muster under either ISLT, commissions with this structure would almost certainly not achieve the reduction in partisan gerrymandering states are looking for.²³³ Therefore, in this Part, we offer two commission templates that are as aggressive as possible on eliminating partisan gerrymandering, while staying constitutional under each theory. We hope these proposals serve as guides to states looking to root out partisan gerrymandering to the greatest extent possible in a world where the ISLT could still become the law of the land.

A. ISLT-Lite Template Commission

If the Supreme Court were to adopt ISLT-Lite in the future, states can give their commissions certain features to help insulate them from constitutional challenge while still providing the commissions with enough independence to combat partisan gerrymandering. This template uses features of the three criteria considered in Part II that, when combined, would create a commission likely to withstand a constitutional challenge under ISLT-Lite.

First, states should adopt their commissions through either constitutional conventions or legislatively referred constitutional amendments like Colorado, Hawaiʻi, Idaho, and Virginia did.²³⁴ We predict both routes are likely to survive ISLT-Lite, but the convention route is slightly riskier due to lower legislative control over the creation process. Ultimately, the choice here may depend on the available and feasible method in a given state, as all states may not have constitutional referral or convention abilities. Regardless of the chosen path between these two, constitutionalizing the commission better protects its longevity by insulating it from the shifting political whims of future legislators that may want to engage in partisan gerrymandering. The petitioners in Moore argued that “[s]tatutes are always less problematic under the Elections Clause because they can be repealed. . . . [and] rewritten by the state legislature.”²³⁵ However, Justice Barrett questioned the strength of this view, noting that “a lot of state constitutions can be amended by simple majorities.”²³⁶ Further, Chief Justice Roberts’s concern in Arizona State Legislature was that “[a]n Arizona [voter-led] ballot initiative transferred [congressional redistricting] authority from ‘the Legislature’ to an ‘Independent Redistricting Commission.’”²³⁷ Under these ISLT-Lite views, a redistricting commission created by the legislature itself might dodge justices’ concerns about legislative control in the redistricting process. A commission created in this way would also allow a state to argue that its redistricting commission is still accountable to the state legislature since the legislature blessed the commission to act in this area.

To balance concerns about ISLT and partisan gerrymandering, states should also give their legislatures the power to appoint the thinnest possible majority of the commissioners, like commissions in Iowa, Montana, and New Mexico.²³⁸ We do not predict a meaningful doctrinal difference in outcomes under ISLT-Lite depending on whether the legislature can appoint its own members or proxies so long as the legislature retains at least the ability to appoint a majority of these seats.²³⁹ The legislature would likely maintain sufficient control over the commission for membership selection if it can appoint its own members or “proxies.” So long as the legislature can appoint a majority, the commission itself arguably acts as a proxy for the legislature’s wishes (assuming proxies would vote the same as legislators themselves) and therefore would still hold only “auxiliary” control over the redistricting process compared to the legislature.²⁴⁰ Ultimately, since we predict no difference in outcomes, we recommend a majority proxy-only appointment scheme, but more risk-averse states may justifiably wish to give their legislatures the option to appoint their own members.²⁴¹

It seems at least slightly more likely that having proxies, rather than legislators themselves, as commissioners may better help achieve the goal of reducing partisan gerrymandering—if anything by simply improving the optics and public perception of the commission. While legislators must appoint some seats for the commission to remain constitutional under ISLT-Lite, states should refrain from having legislators appoint all members (or all voting members) to the commission because voting members not appointed by legislators can mitigate the worst impulses toward partisan gerrymandering and can engender potential compromise among commissioners.²⁴² Creating a commission where legislators appoint a small majority of commissioners will hopefully strike a permissible balance in the eyes of federal judges.

Finally, states should give commissions the power to draw and pass maps subject to approval via the regular legislative process, which includes the potential for a gubernatorial veto. We predict any further removal of the legislature from final plan enactment (such as allowing commissions to act unilaterally or giving the state supreme court final approval authority) would be detrimental to the constitutionality of a commission under ISLT-Lite. This safer, more litigation-averse approach may help convince stakeholders in other states to pursue a commission because legislators would retain greater power in the process. A commission with this map-enactment process would remain protected to some degree from partisan gerrymandering in two important ways: the commission would draw the maps the legislature can choose from, and the governor would have a veto. Those checks help insulate the commission from partisan gerrymandering in creating the plan, while simultaneously ensuring the legislature maintains “primary authority” over enacting the final plan.²⁴³

B. ISLT-Max Template Commission

If the Supreme Court were to adopt ISLT-Max in the future, an à-la-carte commission that can do the most under our criteria to eliminate partisan gerrymandering—while maximizing its chances of staying constitutional—will be less aggressive and inherently more under the control of the legislature than the commission proposed for use under ISLT-Lite. However, that does not mean a redistricting commission is no longer worthwhile. This ISLT-Max model likewise relies on the criteria considered in Part II to propose a sustainable congressional redistricting commission if the Supreme Court were to adopt ISLT-Max.

Under the commission creation criterion, states can likely adopt one of the same approaches as proposed for the ISLT-Lite template commission in the previous Section. A commission created by a legislatively referred amendment ensures the legislature has significant control under this criterion, while insulating the commission from the partisan instability more inherent to statutorily created commissions. This recommendation is consistent with our prediction that Virginia’s commission, created by a legislatively referred constitutional amendment, would likely survive even under ISLT-Max. This would likely satisfy the requirement that the legislature, not any other state entity, maintains “primary responsibility” over the creation of the commission.²⁴⁴ However, the constitutional convention option disappears under the ISLT-Max approach. The legislature simply cedes too much control in the redistricting process to survive ISLT-Max if it creates a commission via convention. Therefore, we recommend states create their commissions through a legislatively referred constitutional amendment if, under ISLT-Max, they want to receive similar benefits as they would through a convention, but without the doctrinal downsides.

Under the commission membership criterion, it is likely that the most aggressive antigerrymandering position that could still survive scrutiny under ISLT-Max is guaranteeing legislators constitute 50% of the commissioners’ seats. In this way, the legislature retains “primary responsibility” over who draws the commission’s maps as the entity that controls the largest voting bloc on the commission. Guaranteed legislator representation, rather than a lesser appointment power, is likely necessary to survive ISLT-Max. Appointees, while potentially strong proxies for the legislators that appoint them, would likely not pass the formalist strictures of Justice Gorsuch’s ISLT-Max.²⁴⁵

For the remaining seats, however, we recommend the commissioners be chosen from general applicants without any input from the legislature. This may help reduce partisanship, and it differs from a system like Virginia’s, which allows legislators to designate a pool of candidates for the remaining seats not chosen by the legislature. Virginia’s commission likely passes ISLT-Max muster partially because legislators automatically comprise 50% of the commission’s seats. So long as legislators maintain 50% of commissioner seats, and therefore guarantee that no map can pass without legislative support, the legislature likely maintains “primary responsibility” over the redistricting process, regardless of the level of control it maintains over the selection of the remaining commissioners. Therefore, this option should allow states to experiment with bringing in less partisan nonlegislator commissioners to fill the remaining 50% of commissioner seats, without calling into question the commission’s survival under ISLT-Max.

Finally, for map enactment, the best procedure available for fighting partisan gerrymandering that is (probably) constitutional under ISLT-Max is giving the commission power to propose an initial congressional redistricting plan that requires legislative approval before enactment. This renders the commission as purely advisory and gives the legislature final approval authority for map enactment without granting the commission an opportunity to alter the legislature’s ultimate decision. The governor should have no veto power over the legislature’s decision. This structure of final approval ensures no map can become law without the legislature’s approval, which gives the legislature “primary responsibility” over the enactment of the maps. While the legislature can accept or reject any map, it cannot nullify or ignore the commission’s efforts completely because it would still receive and consider maps by the commission. The commissioners can do their jobs, and if the legislature dislikes the map, the commission can try again. But ultimately, the legislature gets the final say on which map becomes law. This might cause the commission to gravitate toward what the legislature prefers, but that compromise is better than making the commission superfluous.

Conclusion

The “blast radius” if the Supreme Court had adopted ISLT in Moore v. Harper would have “sow[n] elect[oral] chaos” and devastated congressional redistricting practices across the country.²⁴⁶ The country dodged this bullet the first time around, but the Court left room for ISLT to wreak havoc on our institutions in the future should a more targeted challenge present itself.²⁴⁷ This Note attempts to concretize that potential impact. Regardless of which theory the Court may adopt in the future, ISLT would undo the will of state legislatures, voters, and/or the framers of state constitutions across twenty different states, affecting hundreds of millions of voters.²⁴⁸ Both theories would severely limit the states’ ability to fight partisan gerrymandering and remove the last effective bastion against combatting that pernicious practice. Unless they were to drastically change their commissions to conform to ISLT’s requirements, states would need to choose between fighting partisan gerrymandering by holding two different systems of elections for federal and state legislatures or giving up their redistricting commissions and accepting partisan gerrymandering as a required evil of modern American democracy. Either way, the impact of ISLT on our electoral systems and political future cannot be overstated. We hope that this Note takes the abstract impacts of ISLT and makes them real enough for ordinary voters and citizens to understand. Perhaps most of all, we hope that this contribution illuminates the dangers that this theory poses to the future of congressional redistricting throughout the United States and how state leaders can act to defend these systems to the greatest extent within their control.

* J.D. Candidate, May 2024, University of Michigan Law School; M.P.P Candidate, May 2024, University of Michigan Gerald R. Ford School of Public Policy. I am extremely grateful to Professor Ellen Katz for her unparalleled insight and feedback on this piece. Thank you to the Michigan Law Review’s editorial team for all their hard work in helping to publish this Note, particularly my peer Executive Editors. I would also like to thank my parents and Hannah Mezzacappa, whose unending encouragement and support throughout this process helped push it to the finish line. Lastly, my deepest appreciation is reserved for my coauthor Jose whose assistance in writing this piece was indispensable.

** J.D., May 2023, University of Michigan Law School. Thank you to Professor Ellen Katz for her feedback and encouragement. Thank you to Edward Plaut from the Michigan Law Review Notes Office for working with our draft to prepare it for submission. Thank you to the entire Michigan Law Review Notes team for their incredibly helpful feedback and lovely spirit during the editing process. Finally, thank you to my coauthor Derek for being the best partner in this process.