Partisan Gerrymandering

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All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Partisan political gerrymandering, “the drawing of legislative district lines to subordinate adherents of one political party and entrench a rival party in power,” 1 is an issue that has vexed the federal courts for more than three decades.2 Prior to the 1960s, the Supreme Court had determined that challenges to redistricting plans presented nonjusticiable political questions that were most appropriately addressed by the political branches of government, not the judiciary.3 In 1962, the Supreme Court held in the landmark ruling of Baker v. Carr that a constitutional challenge to a redistricting plan is justiciable, identifying factors for determining when a case presents a nonjusticiable political question, including “a lack of [a] judicially discoverable and manageable standard[ ] for resolving it.” 4 In the years that followed, while invalidating redistricting maps on equal protection grounds for other reasons—inequality of population among districts5 or racial gerrymanding6 —the Court did not nullify a map based on a determination of partisan gerrymandering.7

In the 1986 case of Davis v. Bandemer, the Court ruled that partisan gerrymandering in state legislative redistricting is justiciable under the Equal Protection Clause.8 Although the vote was 6-3 in favor of justiciability, a majority of the Justices could not agree on the proper test for determining whether the particular gerrymandering in this case was unconstitutional and reversed the lower court’s holding of unconstitutionality by a vote of 7-2.9 Hence, as a result of Bandemer, the Court left open the possibility that claims of unconstitutional partisan gerrymandering could be judicially reviewable, but did not ascertain a discernible and manageable standard for adjudicating such claims.10

Similarly, following Bandemer, the Supreme Court could not reach a consensus for several years on the proper test for adjudicating claims of unconstitutional partisan gerrymandering. First, in the 2004 ruling, Vieth v. Jubelirer, a four-Justice plurality would have overturned Bandemer to hold that “political gerrymandering claims are nonjusticiable.” 11 Justice Anthony Kennedy, casting the deciding vote and concurring in the Court’s judgment, agreed that the challengers before the Court had not yet articulated “comprehensive and neutral principles for drawing electoral boundaries” or any rules that would properly “limit and confine judicial intervention.” 12 Nonetheless, Justice Anthony Kennedy held out hope that in some future case, the Court could find “some limited and precise rationale” to adjudicate other partisan gerrymandering claims, thereby leaving Bandemer intact.13 In 2006, in League of United Latin American Citizens v. Perry, a splintered Court again failed to adopt a standard for adjudicating political gerrymandering claims, but did not overrule Bandemer by deciding such claims were nonjusticiable.14 Likewise, in 2018, the Court considered claims of partisan gerrymandering, but ultimately issued narrow rulings on procedural grounds specific to those cases.15

Ultimately, in the 2019 case, Rucho v. Common Cause, the Supreme Court held that there were no judicially “discernible and manageable standards” by which courts could adjudicate claims of unconstitutional partisan gerrymandering, thereby implicitly overruling Bandemer.16 According to the Court, the federal courts “are not equipped to apportion political power as a matter of fairness” and “it is not even clear what fairness looks like in this context.” 17 As a result of Rucho, claims of unconstitutional partisan gerrymandering are not subject to federal court review because they present nonjusticiable political questions.18 Writing for the Court, Chief Justice John Roberts acknowledged that excessive partisan gerrymandering “reasonably seem[s] unjust,” stressing that the ruling “does not condone” it, but reiterated that “the Framers gave Congress the power to do something about partisan gerrymandering in the Elections Clause.” 19

1: Ariz. State Leg. v. Ariz. Indep. Redistricting Comm’n, 576 U.S. 787, 791 (2015).
2: See Gaffney v. Cummings, 412 U.S. 735, 751, 754 (1973) (upholding a redistricting plan, acknowledging it was drawn with the intent to achieve a rough approximation of the statewide political strengths of the two parties and stating “we have not ventured far or attempted the impossible task of extirpating politics from what are the essentially political processes of the sovereign States” ); WMCA, Inc. v. Lomenzo, 238 F. Supp. 916 (S.D.N.Y. 1965) (three-judge court), aff’d, 382 U.S. 4 (1965); Sincock v. Gately, 262 F. Supp. 739 (D. Del. 1967) (three-judge court).
3: See, e.g., Colegrove v. Green, 328 U.S. 549, 552 (1946) (characterizing the case, which involved state legislative districting, as one that presents the Court with “what is beyond its competence to grant” because the issue is “of a peculiarly political nature and therefore not meet for judicial determination.” )
4: 369 U.S. 186, 217 (1962).
5: See Amdt14.S1.8.6.4 Equality Standard and Vote Dilution.
6: See Amdt14.S1.8.6.6 Racial Vote Dilution and Racial Gerrymandering.
7: See, e.g., Gaffney, 412 U.S. at 752 (rejecting an argument that a redistricting map violated equal protection principles “because it attempted to reflect the relative strength of the parties in locating and defining election districts” ).
8: 478 U.S. 109 (1986). The vote on justiciability was 6-3, with Justice Byron White’s opinion for the Court joined by Justices William Brennan, Thurgood Marshall, Harry Blackmun, Lewis Powell, and John Paul Stevens. This represented an apparent change of view by three of the majority Justices, who just two years earlier had denied that “the existence of noncompact or gerrymandered districts is by itself a constitutional violation.” Karcher v. Daggett, 466 U.S. 910, 917 (1983) (Brennan, J., joined by White and Marshall, J., dissenting from denial of stay in challenge to district court’s rejection of a remedial districting plan on the basis that it contained “an intentional gerrymander” ).
9: Only Justices Lewis Powell and John Paul Stevens viewed the Indiana redistricting plan as void; Justice Byron White, joined by Justices William Brennan, Thurgood Marshall, and Harry Blackmun, thought the record inadequate to demonstrate continuing discriminatory impact, and Justice Sandra Day O’Connor, joined by Chief Justice Warren Burger and Justice William Rehnquist, would have ruled that partisan gerrymandering is a nonjusticiable political question not susceptible to manageable judicial standards.
10: See Bandemer, 478 U.S. at 127 (agreeing with the district court in this case that to establish an equal protection violation, plaintiffs needed “to prove both intentional discrimination against an identifiable political group and an actual discriminatory effect on that group” ).
11: 541 U.S. 267, 281 (2004).
12: Id. at 306–07.
13: Id. at 306.
14: 548 U.S. 399, 414 (2006) (declining to “revisit [the Bandemer] justiciability holding” ); see also id. at 417 (Kennedy, J.) (rejecting proposed test for adjudicating partisan gerrymandering claims); id. at 492 (Roberts, J., concurring in part) (agreeing that proposed test was not a reliable standard for adjudicating partisan gerrymandering claims); id. at 512 (Scalia, J., dissenting) (arguing that claims of unconstitutional partisan gerrymandering are nonjusticiable).
15: See Gill v. Whitford, No. 16-1161, slip op. at 21 (U.S. June 18, 2018) (ruling that to establish standing to sue upon a claim of unconstitutional partisan gerrymandering on the basis of vote dilution, challengers must allege injuries to their interests as voters in individual districts); Benisek v. Lamone, No. 17-333, slip op. at 5 (U.S. June 18, 2018) (per curiam) (holding that a district court did not abuse its discretion by denying a preliminary injunction to challengers claiming that a Maryland congressional district was an unconstitutional partisan gerrymander).
16: Rucho v. Common Cause, No. 18-422, slip op. at 20 (U.S. June 27, 2019).
17: Id. at 17.
18: See id. at 30 ( “We conclude that partisan gerrymandering claims present political questions beyond the reach of the federal courts.” ). Id.
19: Id. at 32–33.