Partisan Gerrymandering: The Promise and Limits of State Court Judicial Review

Abstract

The 2021 state legislative and congressional redistricting cycle witnessed an unprecedented level of litigation surrounding the validity of new redistricting plans. Charges of partisan gerrymandering were particularly prominent. Yet, as a result of the U.S. Supreme Court's ruling in Rucho v. Common Cause in 2019 that partisan gerrymandering claims were non-justiciable in the federal courts, the task of assessing whether a particular redistricting plan was a forbidden partisan gerrymander was left to state courts in each of the states. To much applause in the media, state courts in New York, Ohio, and North Carolina struck down their state's redistricting plans as partisan gerrymanders, leading several commentators to proclaim that state courts could be relied upon to police the redistricting process to prevent the worst gerrymanders.

As this article reveals, though, the level of scrutiny employed by courts in different states is uneven, with some courts noticeably reluctant to take on the task of assessing the partisan fairness of an adopted redistricting plan. This article focuses on the litigation in Oregon, where the Oregon Supreme Court and a trial court rejected partisan gerrymandering challenges to the state legislative and congressional plans, respectively. While the particular challenges were undoubtedly overblown, the Oregon courts struggled to explain why that was the case and thereby provide any guidance as to what constituted a forbidden partisan gerrymander. As such, the Oregon decisions contrasted with those in New York and Ohio, and that contrast revealed the potential shortcomings of relying on state courts to police the redistricting process, especially in pre-election review. The article concludes by proposing two reforms to bolster the ability of state courts to perform such review, emphasizing the need for adequate time for such claims to be adjudicated and a sufficiently robust legal framework to guide the courts' analysis of the partisan bias of a challenged plan.

Keywords: Elections, redistricting, partisan gerrymandering, state courts

JEL Classification: K10, K41, K30