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The gerrymandering mess
Courtly Observations is a recurring series by Erwin Chemerinsky that focuses on what the Supreme Court’s decisions will mean for the law, for lawyers and lower courts, and for people’s lives.
The Supreme Court’s recent rulings allowing Texas and California to engage in mid-decade gerrymandering of congressional districts show the urgent need for reconsideration of Rucho v. Common Cause, where the justices held that federal courts cannot hear challenges to partisan gerrymandering. After the court in December upheld the Texas legislature’s gerrymandering, intended to benefit Republicans, it did the “right” thing on Feb. 4 in dismissing the challenge to California’s gerrymandering which was to benefit Democrats. But by allowing unchecked partisan gerrymandering, the court is encouraging ever more extreme efforts and undermining democracy.
How we got here
Partisan gerrymandering occurs when the political party that controls a legislature draws election districts to maximize safe seats for that party. Gerrymandering is not new. The practice of gerrymandering takes its name from an early governor of Massachusetts, Elbridge Gerry. In 1812, Gerry led the drawing of districts in Massachusetts to help his party gain seats. During this process, Gerry apparently remarked that one district looked like a salamander – and the name “gerrymandering” took hold. (In the March 26, 1812, edition of the Boston Gazette, the newspaper ran a cartoon of this district with the caption: “The Gerry-Mander: A new species of Monster.”)
Although gerrymandering has been done throughout American history, the method has changed dramatically. For most of American history, those engaging in gerrymandering would choose between several maps based on their predictions of which would yield the greatest partisan advantage. Today, they have computers generate thousands of maps and choose the one that provides the best chance of partisan success. Intricate computer algorithms and detailed data about voters allow map drawers to engage in partisan gerrymandering with surgical precision.
The Supreme Court first considered partisan gerrymandering in 1986 in Davis v. Bandemer. A fractured court concluded that challenges to partisan gerrymandering could be heard in federal court. But the court did not articulate a standard for when gerrymandering becomes unconstitutional.
The court returned to the issue of partisan gerrymandering in 2004, in Vieth v. Jubelirer, where the court dismissed a challenge to this practice. A plurality opinion – written by Justice Antonin Scalia and joined by Chief Justice William Rehnquist and Justices Sandra Day O’Connor and Clarence Thomas – said that there are no judicially discoverable or manageable standards and no basis for courts to decide when partisan gerrymandering offends the Constitution. Justice Anthony Kennedy, concurring in the judgment, provided the fifth vote for the majority. He agreed to dismiss the case because of the absence of judicially manageable standards, but he said that he believed that such standards could be developed in the future and then such cases could be heard.
For the next decade and a half, litigation focused on whether there were standards that courts could use to determine when partisan gerrymandering violated the Constitution. Then, in 2019, in Rucho v. Common Cause, the court resolved the issue by ruling that challenges to partisan gerrymandering are “political questions” that cannot be decided by the courts. Roberts (joined by Thomas, and Justices Samuel Alito, Neil Gorsuch, and Brett Kavanaugh) wrote the majority opinion and said that the ultimate question with partisan gerrymandering is how much is too much, but there are no judicially manageable standards for determining this. The court held that, although many possible tests had been proposed for “evaluating partisan gerrymandering claims, [] none meets the need for a limited and precise standard that is judicially discernible and manageable.” The court declared: “We conclude that partisan gerrymandering claims present political questions beyond the reach of the federal courts. Federal judges have no license to reallocate political power between the two major political parties, with no plausible grant of authority in the Constitution, and no legal standards to limit and direct their decisions.”
Justice Elena Kagan wrote a vehement dissent, joined by Justices Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor. Kagan said that “[p]artisan gerrymandering of the kind before us not only subverts democracy (as if that weren’t bad enough). It violates individuals’ constitutional rights as well.” In answer to Roberts’ argument that it is impossible to determine what is too much, Kagan wrote that there are many possible legal tests that might be used to determine when gerrymandering violates the Constitution.
The recent gerrymandering rulings
At the urging of President Donald Trump, the Republican controlled state legislature redrew congressional districts in Texas to create five additional likely Republican seats. Texas Governor Greg Abbott signed this into law on Aug. 29. Immediately, a challenge was brought.
Pursuant to federal law, this was heard by a three-judge federal court. The judges conducted a nine-day hearing, involving the testimony of nearly two dozen witnesses and the introduction of thousands of exhibits. There is a factual record of more than 3,000 pages. In a 160-page opinion, the federal court found that Texas impermissibly used race as a basis for drawing the election districts. The Supreme Court has held for over 30 years that it violates equal protection for the government to use race as a predominant factor in districting.
But in Abbott v. League of United Latin American Citizens, on Dec. 4, 2025, the Supreme Court overturned the district court’s decision and allowed Texas to use its new districts. The court gave three reasons for its decision. First, it said that the lower court “failed to honor the presumption of legislative good faith.” Second, the court said that the district court erred by not producing “a viable alternative map that met the State’s avowedly partisan goals.” This means that the only way the court could have declared race-based districting unconstitutional would be for the district court to devise a map that would create five more Republican-controlled congressional districts. (But what if there was no way to draw a map that created five more Republican districts except by impermissibly using race? As Kagan said in her dissent, “the map’s absence does not make the direct evidence of race-based decisionmaking go away.”)
Finally, the court said that the challenge to the new districts came too soon before the election. It stated: “This Court has repeatedly emphasized that lower federal courts should ordinarily not alter the election rules on the eve of an election.” This is the so-called Purcell principle – from a Supreme Court order in the 2006 case of Purcell v. Gonzalez – that federal courts cannot strike down laws regarding an election too soon before the election. But the Supreme Court never has explained the basis for the Purcell principle and did not do so here.
In response to the Texas redistricting, California voters approved an initiative, Proposition 50, to suspend use of an independent commission to draw congressional districts and to adopt a new map for the 2026 elections that would likely give Democrats five additional congressional seats. A three-judge federal court, in a 2-1 decision, rejected a challenge to that map. And on Feb. 4, the court, in Tangipa v. Newsom, denied review, allowing the new gerrymandering districts to be used in the coming elections.
Time to reconsider Rucho
Gerrymandering rigs elections. The central precept of democracy is that voters choose their elected officials, but partisan gerrymandering means that elected officials are choosing their voters. As the Supreme Court itself once observed, the “core principle of republican government” is “that the voters should choose their representatives, not the other way around.”
As a result of partisan gerrymandering, each voter also does not have the same chance to influence the outcome of an election. Partisan gerrymandering means that not all voters are treated the same, as those voters of the party that is controlling the districting are much more likely to have representatives of their party elected. That is a quintessential denial of equal protection of the laws.
Partisan gerrymandering infringes First Amendment freedoms as well. Those of the minority political party, solely by virtue of their party association, are at a significant disadvantage in electing representatives. In 2004, Kennedy said that partisan gerrymandering is a “burden [on] a group’s representational rights” of their “political association,” “participation in the electoral process,” “voting history,” or “expression of political views.” Those of the minority political party are at an enduring disadvantage solely because of how the districts were drawn.
The court’s decision in Rucho was based on the assumption that it is impossible to develop judicially manageable standards for when partisan gerrymandering violates the Constitution. But the court often has devised standards for drawing difficult lines. In fact, the same argument had been made that challenges to malapportionment – where districts for a legislative body varied greatly in population – should not be heard by federal courts. The Supreme Court, though, fashioned the rule of one-person one-vote, requiring all districts for a legislative body be about the same size in population. Likewise, many scholars have developed standards that could be used for determining when partisan gerrymandering goes too far.
Conclusion
The mid-decade partisan gerrymandering in Texas and California – as well as in Missouri, North Carolina, and Utah – is the direct result of the Supreme Court’s decision in Rucho v. Common Cause. The Supreme Court’s allowing this to happen is sure to encourage constant redistricting and ever more extreme partisan gerrymandering. The court should overrule Rucho and put an end to this assault on our democracy.
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