The Role Of State Courts In Constraining Partisan Gerrymandering In Congressional Elections

Abstract

Federal courts were once seen as the place for partisan gerrymandering challenges to be lodged, but after thirty-plus years of failing to find any redistricting plan to be a partisan gerrymander, even while holding partisan gerrymandering to be justiciable, the Supreme Court announced in Rucho v. Common Cause, 588 U.S. ___ (2019), that partisan gerrymandering is not justiciable in federal courts. State courts are now seen as the only place where a remedy for egregious partisan gerrymandering might be sought (except, of course, for taking redistricting out of the hands of the state legislature and moving responsibility into a bipartisan or ostensibly non-partisan commission). Thus, we find that partisan gerrymandering claims, while almost entirely in federal courts in the 2010 and earlier rounds of redistricting, are now brought in state courts. We also expect that state courts would look to state constitutional provisions to evaluate partisan gerrymandering claims, especially language added in recent constitutional amendments that affected the procedures and criteria for redistricting. However, we also see some state courts creatively reevaluating older language in their state’s constitution to find a way to hold egregious gerrymanders in violation of that constitution. Moreover, we see various state court justices relying on a variety of statistical tests proposed by academic specialists, and/or examining the extent to which proposed maps satisfied traditional good government standards. Thus, they are implicitly challenging the Supreme Court’s view in Rucho that no manageable standard for egregious partisan gerrymandering existed.

Keywords: redistricting; gerrymandering; courts; justiciability