Supreme Court Once Again Considers Partisan Gerrymandering: Implications and Legislative Options

Supreme Court Once Again Considers Partisan Gerrymandering: Implications and Legislative Options

Legal Sidebari

Supreme Court Once Again Considers
Partisan Gerrymandering: Implications and
Legislative Options
March 18, 2019
Is there a standard for determining whether a redistricting map is an unconstitutional partisan
gerrymander? Or, do claims of partisan gerrymandering raise political questions that lie beyond the
jurisdiction of a federal court (i.e., are non-justiciable)? On March 26, 2019, the Supreme Court will hear
oral argument in two cases—one from Maryland (Lamone v. Benisek) and another from North Carolina
(Rucho v. Common Cause)—presenting these questions. In Lamone and Rucho, the Court is presented
with the issue of partisan gerrymandering for the second consecutive term. Last year, the Supreme Court
considered claims of partisan gerrymandering raising nearly identical questions to those currently before
the Court, but ultimately issued narrow rulings on procedural grounds specific to those cases. Last year’s
rulings were only the latest in which the Court considered, but ultimately did not directly answer, the
question of whether a standard exists for ascertaining unconstitutional partisan gerrymandering. In prior
cases presenting this issue, Justice Kennedy cast the deciding vote, leaving open the possibility that
claims of unconstitutional partisan gerrymandering are justiciable under a yet to be determined standard.
Lamone and Rucho, however, are the first partisan gerrymandering cases that the Court has considered
since Justice Kennedy retired from the Court last year. Accordingly, the Court’s rulings could signal how
the Court will approach an issue that could significantly affect how congressional and state legislative
boundaries are drawn in the future.
This Sidebar begins by briefly discussing Supreme Court precedent addressing partisan gerrymandering,
before examining the lower court rulings from Maryland and North Carolina presently before the Court.
The Sidebar concludes by previewing the arguments before the Court, and notes possible outcomes and
implications of a ruling, including legislative options for Congress.
Supreme Court Precedent
Prior to the 1960s, the Supreme Court had determined that challenges to redistricting plans presented non-
justiciable political questions that were most appropriately addressed by the political branches of
government, not the judiciary. In 1962, however, in the landmark ruling of Baker v. Carr, the Court held
that a constitutional challenge to a redistricting plan is justiciable, identifying factors for determining
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when a case presents a non-justiciable political question, including “a lack of [a] judicially discoverable
and manageable standard[] for resolving it.” Since then, while invalidating redistricting maps on equal
protection grounds for other reasons—based on malapportionment or unequal population among districts
and as racial gerrymanders—the Court has not nullified a map because of partisan gerrymandering.
As defined by the Court, partisan gerrymandering is “the drawing of legislative district lines to
subordinate adherents of one political party and entrench a rival party in power.” As redistricting has
traditionally been viewed as an inherently political process best left for the legislative branches of state
government, coupled with concern that a standard for adjudication would open the floodgates of
litigation, partisan gerrymandering has long proved to be judicially difficult. Nonetheless, critics argue
that extreme partisan gerrymandering is “incompatible with democratic principles” by entrenching an
unaccountable political class in power with the aid of modern redistricting software—using “pinpoint
precision” to maximize partisanship—thereby necessitating judicial review.
In prior cases presenting a claim of unconstitutional partisan gerrymandering, the Court has left open the
possibility that such claims could be judicially reviewable, but has not ascertained a discernible and
manageable standard for adjudicating such claims. For example, in a 2004 decision, Vieth v. Jubelirer,
while a plurality of four Justices determined that a claim of unconstitutional partisan gerrymandering
presented a non-justiciable political question, four other Justices concluded that such claims are
justiciable, but did not agree upon a standard for courts to use in assessing such claims. The deciding vote
in Vieth, Justice Kennedy, concluded that the claims presented in Vieth were non-justiciable because
neither comprehensive, neutral principles for drawing electoral boundaries, nor rules limiting judicial
intervention, exist. Nonetheless, Justice Kennedy did “not foreclose all possibility of judicial relief if
some limited and precise rationale were found to correct an established violation of the Constitution in
some redistricting cases.” Justice Kennedy further observed that, in contrast to the Equal Protection
Clause of the Fourteenth Amendment, the First Amendment “may offer a sounder and more prudential
basis for intervention” in future claims concerning unconstitutional partisan gerrymandering because such
claims “involve the First Amendment interest of not burdening or penalizing citizens because of their
participation in the electoral process, their voting history, their association with a political party, or their
expression of political views.” Two years later, in LULAC v. Perry, the Court was similarly divided, with
a majority also not ascertaining a standard for resolving the challengers’ partisan gerrymandering claims.
In June 2018, in two cases from Wisconsin and Maryland, the Supreme Court again considered partisan
gerrymandering claims. However, in neither case did the Court resolve whether the issue raised a political
question, let alone establish a standard for assessing such claims. In Gill v. Whitford, the Court held that in
order to establish standing to sue, a litigant pursuing a claim that partisan gerrymandering diluted their
vote in violation of the Equal Protection Clause must demonstrate injuries to their interests as voters in
their specific district, as opposed to an injury resulting from the statewide effect of the map. (Vote dilution
arises when district boundaries devalue one citizen’s vote as compared to others and is accomplished by
“packing” certain voters into a few districts, so that they win elections by large margins, and “cracking”
certain voters among several districts, so that they fail to achieve a voting majority.) Justice Kagan joined
by Justices Ginsburg, Breyer, and Sotomayor, concurred in Gill, arguing that, in lieu of an Equal
Protection theory, challengers to partisan gerrymandering could more likely succeed on a claim that such
practices result in First Amendment associational harm—a harm distinct from vote dilution. Quoting
extensively from Justice Kennedy’s Vieth concurrence, Justice Kagan maintained that partisan
gerrymandering violates the First Amendment by placing the disfavored party at an “enduring electoral
disadvantage,” thereby burdening a group of voter’s representational rights because of their political
association. Distancing itself from the concurrence, however, Chief Justice Roberts, writing for the Court,
expressly declined to engage in such “speculative and advisory conclusions” regarding possible future
cases, emphasizing that the Court’s reasoning in this case is set forth exclusively in the majority opinion.

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On the same day the Court issued Gill, the Court also decided Benisek v. Lamone, 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. Without evaluating the
challengers’ likelihood of success on the merits, the Court determined that the challengers lacked
reasonable diligence in pursuing their claim needed to obtain preliminary relief by waiting until six
years—and three general elections—after the 2011 redistricting map had been enacted, and over three
years after filing their first complaint. As Gill and Benisek were decided on procedural grounds specific to
those cases, they effectively preserved the Supreme Court’s jurisprudential status quo on claims of
unconstitutional partisan gerrymandering, leaving open the possibility that the Court could hold such
claims to be judicially reviewable in the future, under a yet to be determined standard.
Lower Court Rulings and Supreme Court Arguments
Maryland
Lamone involves a challenge by seven registered Republican voters who lived in Maryland’s Sixth
congressional district prior to the enactment of the 2011 congressional redistricting map. Last November,
a three-judge federal district court held that the map constituted an unconstitutional partisan gerrymander
in violation of the First Amendment. According to the court, the state intentionally moved 66,000
Republican voters from, and 24,000 Democratic voters to, the Sixth congressional district in order to
dilute the value of the Republican vote because of those voters’ political views. The court concluded that
the state’s retaliatory action impinged on both representational rights—by denying Republican voters’ the
opportunity to elect the candidate of their choice—and on associational rights—by stoking voter
confusion, diminishing participation in organizational activities, and decreasing Republican fundraising.
Moreover, the court determined that the plaintiffs established that, absent the state’s retaliatory intent, the
district’s boundaries would not have been drawn to dilute the power of Republican voters to the same
extent. Thus, according to the court’s “retaliation” test, the voters established that the Maryland
legislature violated the plaintiffs’ First Amendment rights by demonstrating that (1) the map drawers
specifically intended to disadvantage Republican voters based on their party affiliation and voting history;
(2) the map burdened Republican voters’ representational and associational rights; and (3) the map
drawers’ intent to burden Republican voters “was a but-for cause” of the “adverse impact.” Ultimately,
the court permanently enjoined the State of Maryland from using the congressional redistricting map after
the 2018 congressional election, ordering a new map to be drawn in accordance with the ruling for use in
the 2020 election. Maryland election officials appealed to the Supreme Court. (A provision of federal law
provides for direct appeals to the Supreme Court in cases challenging the constitutionality of redistricting
maps.)
On appeal, conceding that claims of unconstitutional partisan gerrymandering can be justiciable and
urging the Court to develop a standard for adjudication, the Maryland election officials maintain that the
lower court’s First Amendment retaliation test falls short of the Supreme Court’s guidelines, i.e., that a
standard be clear, manageable, politically neutral, reliably fair, and precise. Specifically, the officials
argue that the test did not set forth a sufficiently “limited and precise” standard for determining when
partisanship has had more than a trivial effect on redistricting to raise constitutional questions. In this
vein, the appellants contend that while Supreme Court precedent has recognized that political
considerations—such as constituent interests, community interests, and proportional representation—can
lawfully guide redistricting decisions, the lower court’s retaliation test would wholly prohibit mapmakers
from considering any political aims. Moreover, the election officials argue that the lower court’s
representational rights theory is merely a “species of vote dilution” similar to the claims at issue in Vieth.
With regard to the lower court’s associational rights theory, the officials contend that any change to a
redistricting map could decrease voter enthusiasm and turnout, while increasing voter disconnection and

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confusion, thereby affecting the associational rights of some voters. Furthermore, the election officials
assert that the lower court’s determination that a preexisting redistricting map is the benchmark for
determining whether a new map establishes an unconstitutional partisan gerrymander does not provide a
judicially manageable test because it “will almost inevitably yield absurd results,” including preventing a
legislature from remedying a past partisan gerrymander. Finally, they argue that the First Amendment
retaliation framework is intended to apply only to executive action, cautioning that such an application
could make actionable most legislation that is enacted with political motivation.
In response, the Maryland voters argue that the retaliation test adopted by the lower court is discernible
and manageable. Highlighting similarities with racial gerrymandering claims, which have long required
courts to inquire into a legislature’s intent and the burden it imposes on the challengers of a redistricting
map, the voters argue that the retaliation test provides a manageable standard for federal courts. Further,
the voters disagree with the election officials’ characterization that the lower court’s test disallows all
consideration of party affiliation in redistricting. Instead, the voters argue that the retaliation test inquires
whether political classifications were used to target a particular group of voters, thereby permitting a
“wide range of very important political considerations” in redistricting.
North Carolina
In Rucho, the lower court held, in response to a challenge by Common Cause, the League of Women
Voters, and several voters, that a North Carolina congressional redistricting map is an unconstitutional
partisan gerrymander in violation of the Equal Protection Clause of the Fourteenth Amendment, the First
Amendment, and Article I of the Constitution. First, the court determined that a redistricting plan violates
the Equal Protection Clause as an unconstitutional partisan gerrymander when the challengers show it
(1) is intended to severely impede the effectiveness of an individual’s vote, on the basis of their political
affiliation; (2) has that effect; and (3) cannot be justified by other, legitimate legislative grounds.
Applying this test to the challengers’ presented evidence, the court held the state legislators’ predominant
intent in drawing the map was to “subordinate” non-Republican voter interests, while “entrench[ing]”
Republican control of the state’s congressional delegation. Further, the court held that the map had the
effect of diluting Democratic votes through “cracking and packing,” thereby ensconcing Republican
Members of Congress in office, without the justification of political geography or other legitimate
redistricting considerations. Second, the court determined that a redistricting plan violates the First
Amendment as an unconstitutional partisan gerrymander, utilizing a test similar to the retaliation standard
in Lamone. In applying this test, the court held that the plan was intended to disfavor supporters of non-
Republican candidates, based on their past expressions of political belief; that the plan burdened their
political speech and associational rights; and that a causal relationship existed between the legislature’s
discriminatory motive and the First Amendment burdens imposed by the plan. Third, the court determined
that according to Supreme Court precedent interpreting the Constitution’s Elections Clause, the states’
authority to regulate elections encompasses only “neutral provisions as to the time, place, and manner of
elections.” However, the legislature violated this neutrality principle, the court held, by creating a
redistricting plan that disfavors the interests of specific candidates’ or parties’ supporters, representing an
impermissible effort to dictate the outcome of a congressional election. Finally, the court concluded that
Article I, Section two of the Constitution, which provides that the “House of Representatives … be
composed by Members chosen … by the People,” does not authorize a state, as was done in this case, to
enact a redistricting plan that impedes the will of the voters and favors the controlling party of the state
legislature.
In appealing the lower court ruling, the North Carolina legislators first maintain that Common Cause
lacks standing to sue because, despite efforts to “retrofit” their complaints in accordance with Gill, they
allege a statewide harm. Hence, the legislators conclude that Common Cause failed to make the requisite
proof that partisan gerrymandering detrimentally affected their ability to elect a Democrat in their specific

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district. Next, the legislators dispute that any of the lower court’s legal bases for striking down the maps
are justiciable because of the two critical factors that render a claim a non-justiciable political question: a
textual commitment in the Constitution to a particular branch of government and a lack of judicially
discernible and manageable standards. Regarding a textual commitment, the legislators argue that the
framers of the Constitution delegated responsibility for the “politically fraught task” of redistricting to the
politically accountable state legislatures, subject to congressional oversight. Hence, the legislators
maintain that the text of the Constitution reflects that redistricting is “affirmatively inappropriate” for the
politically independent judiciary. Moreover, observing that three decades of judicial struggle have not
rendered a standard for adjudicating claims of unconstitutional partisan gerrymandering, the legislators
conclude that such a standard does not exist. Further, the legislators contend that, given the inherently
political nature of redistricting, the “amorphous tests” adopted by the lower court fail to provide guidance
as to how much politics is “too much,” with most tests purporting to eliminate politics from redistricting
completely.
In opposition, Common Cause argues that they have standing to sue because they “scrupulously
followed” the Court’s most recent ruling in Gill by demonstrating injuries to their interests as voters in a
specific district. Furthermore, they counter the legislators’ argument that, notwithstanding the specific
facts or legal theories of a case, partisan gerrymandering claims are political questions. Quoting Baker,
however, Common Cause maintains that the political question doctrine requires a “fact-specific, case-by-
case inquiry” in order to determine whether a specific claim is “susceptibl[e] to judicial handling,”
thereby necessitating judicial review in this particular case. Furthermore, they maintain that the
Constitution prohibits action specifically intended to subordinate a political group and that requiring a
challenger to prove such invidious intent—as they argue was proven in this case—provides a meaningful
limit on judicial involvement in claims of partisan gerrymandering. Likewise, in further support of the
proposition that partisan political gerrymandering claims do not present a non-justiciable political
question, the League of Women Voters argues that judicial review of such claims buttresses the Court’s
general opposition to election laws that “threaten to entrench parties and undermine responsiveness.”
Moreover, arguing that the test adopted by the lower court draws from Supreme Court precedent, the
League observes that its effects prong parallels the established test used in racial vote dilution cases and
the justification prong replicates the one-person, one-vote jurisprudence, serving to limit the test’s reach if
there is a legitimate explanation for a dilutive district.
Possible Outcomes and Implications
Rulings by the Supreme Court in Lamone and Rucho could have significant consequences for claims of
unconstitutional partisan gerrymandering. The Court could rule in a variety of ways. As a threshold
matter, the Court could craft a narrow ruling finding that the specific challengers to the redistricting maps
lack standing, and dismiss the cases for procedural reasons. However, in view of the Court “[h]aving
ducked a ruling on the merits of partisan gerrymandering last year,” at least one Court watcher has
predicted that such a ruling is unlikely. A broader ruling could see the Court holding that partisan
gerrymandering claims present a non-justiciable political question, foreclosing federal courts adjudicating
partisan gerrymandering altogether. In contrast, the Court could adopt one of the standards that the lower
courts applied or identify a new standard for courts to use in partisan gerrymandering cases. Such a
change in Court precedent would likely result in numerous additional challenges to congressional and
state legislative maps nationwide, affecting how maps are drawn during the next round of redistricting
that follows the 2020 census.
As mentioned above, Justice Kennedy—who was widely seen as the critical swing vote on the issue of
partisan gerrymandering—retired from the Court last year, meaning that his successor, Justice
Kavanaugh, could be a key member of the Court to watch in Lamone and Rucho. Justice Kavanaugh,
however, served on the D.C. Circuit prior to his elevation last September and, therefore, did not have the

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opportunity to consider state redistricting disputes while on the lower court. During oral argument on
March 26, the Justices’ questions may signal whether they are likely to foreclose, or ascertain a standard
for, adjudication of such claims. The Court is expected to issue decisions by the end of June.
Legislative Options for Congress
If the Court forecloses claims of unconstitutional partisan gerrymandering by deciding that they present
non-justiciable political questions, federal courts would lack jurisdiction to consider such claims,
although state courts could consider claims under applicable state constitutional provisions. Such a ruling
may suggest a role for the legislative branch in regulating partisan gerrymandering. In this vein, several
pieces of legislation that take various approaches to address partisan gerrymandering have already been
introduced in the 116th Congress. For example, H.R. 1, the “For the People Act of 2019,” which passed
the House of Representatives on March 8, 2019, would eliminate legislatures from the redistricting
process and require each state to establish a nonpartisan, independent congressional redistricting
commission, in accordance with certain criteria. H.R. 44, the “Coretta Scott King Mid-Decade
Redistricting Prohibition Act of 2019,” would prohibit states from carrying out more than one
congressional redistricting following a decennial census and apportionment, unless a state is ordered by a
court to do so in order to comply with the Constitution or to enforce the Voting Rights Act of 1965
(VRA). (At least one scholar has argued that limiting redistricting to once per decade renders it “less
likely that redistricting will occur under conditions favoring partisan gerrymandering.”) H.R. 141, the
“Redistricting Transparency Act of 2019,” would require state congressional redistricting entities to
establish and maintain a public Internet site and conduct redistricting under procedures that provide
opportunities for public participation, thereby arguably lessening the likelihood of partisan
gerrymandering. On the other hand, should the Court identify a standard for ascertaining unconstitutional
partisan gerrymandering, it is unlikely that Congress would have the authority to reverse the effects of a
constitutional ruling through ordinary legislation.

Author Information

L. Paige Whitaker

Legislative Attorney

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