Partisan Gerrymandering

The actual process of political gerrymandering is done by placing voters in districts based on their political registration, voting history, turnout rates, and various other demographic factors that indicate how they might vote. As you can imagine, this process has gotten easier since states started redistricting on a regular basis in the late 60’s and early 70’s. The breadth and depth of data available on potential and actual voters is voluminous; this makes the process of producing favorable outcomes on a map much more precise and easier to do.

Courts have acknowledged that the American redistricting process is an intrinsically politically one, and that courts should be wary of overstepping. The U.S. Congress and state legislatures are responsible for redistricting under the U.S. constitution; thus, redistricting is the purview of the legislative branch and not the judicial. The Supreme Court has historically been reluctant to breach this separation of power and has only done so when it determined that individual rights would be in danger.

In previous decades it has invalidated redistricting maps and established rules to protect the voting rights of voters in general (in its equal population cases), certain racial and ethnic minorities (to enforce the Voting Rights Act and other provisions), and to protect voters from racially segregated districts (unconstitutional racial gerrymandering under the 14th Amendment).

Political or “partisan” gerrymandering did not have the Supreme Court’s attention until fairly recently in the mid-eighties when the court did acknowledge the theoretical possibility that a redistricting map may be so egregious to a political group, that it might be considered unconstitutional. The manipulation of political power through redistricting had generally been seen as part of the American political system, but after the court’s “theoretical” acknowledgment and several more decades of more intense partisan gerrymandering powered by sophisticated software, the notion of “extreme political gerrymandering” took root.

Despite the rise of so-called extreme political gerrymandering, the Supreme Court appeared to take a step back from its previous position that these types of cases could be adjudicated in the federal courts. In Vieth v. Jubilier, a plurality of the court concluded that these types of claims could not be adjudicated. The reasoning behind this declaration was simple; the lack of a “judicially manageable” standard that a court could use to determine where that line is between “acceptable” partisan gerrymandering and “extreme” gerrymandering – which would at least in theory – be unconstitutional.

Determining When Partisan Gerrymandering Becomes Unconstitutional: The quest for a manageable standard ensued after the Vieth decision. Many interested organizations, scholars, and legal entities proposed measurements a court could use to discern an unconstitutional gerrymander, but in the end, the Court rejected each as inadequate. In the summer of 2019, the Court declared partisan gerrymandering claims nonjusticiable political questions in federal court. The Court did not accept the notion that in addition to measuring partisan gerrymandering on a map, it would also have to define the specific level of measurement that constitutes impermissible gerrymandering. Something it was not prepared to do. According to the Court, “Federal judges have no license to reallocate political power between the two major political parties, with . . . no legal standards to limit and direct their decisions.” (Rucho v. Common Cause)

There is no explicit prohibition on political gerrymandering in the U.S. constitution, but a small minority of states have directly prohibited it either through statute or in the state constitution. Until recently, in the remaining states, there was no legal claim for partisan gerrymandering in a state without a specific prohibition. However, in 2018, the State supreme court of Pennsylvania invalidated that legislature’s congressional map as a partisan gerrymander by interpreting the state constitution’s free and fair election clause - a common clause in many state constitutions - to prohibit it. This may encourage similar decisions in other states as reform groups scramble to find alternate avenues to curtail what they view as extreme partisan gerrymandering in the post – Rucho era.