Written by Raleigh Levine, James E. Kelley Chair in Tort Law at Mitchell Hamline. Professor Levine teaches Mitchell Hamline’s Election Law class, which focuses on the constitutional and statutory regulation of the American electoral process.
After decades in which a majority of the United States Supreme Court’s Justices repeatedly concluded that some partisan gerrymandering might be so excessive that it violates the Constitution, the Court this summer ruled 5-4 in Rucho v. Common Cause that no matter how extreme the gerrymander, partisan gerrymandering claims present political questions beyond the federal courts’ reach.
Three Redistricting Examples
To illustrate the issues at stake, posit a hypothetical state with 1,000,000 residents—sixty percent Democrats and forty percent Republicans. Following the “one person, one vote” doctrine, which requires that electoral districts be roughly equal in population, the state legislature creates ten equally populated districts of 100,000 residents each.
With the districts allocated proportionally to reflect the statewide distribution of Republicans and Democrats, sixty percent of the seats would be reliably Democratic and forty percent reliably Republican:
But the state could instead draw each district with 60,000 Democrats and 40,000 Republicans, mirroring the parties’ statewide distribution and allowing Democrats to win all ten seats:
Packing & Cracking
A third option would “pack” most of the Democrats into four districts, and “crack” the rest across the other six districts, so that Democrats would hold only four seats, despite winning sixty percent of the vote statewide, while Republicans would hold a six-seat majority, despite winning only forty percent of the vote statewide:
The latter examples allow one party to entrench itself in power for the foreseeable future, though it does not have the proportional support—or even majority support—of the state’s voters. In essence, this is what the Rucho plaintiffs said occurred in North Carolina’s and Maryland’s congressional districting plans.
The North Carolina and Maryland Maps
In North Carolina, the Republican-controlled legislature engineered a map that, in 2016, gave Republican candidates—who had fifty-three percent of the vote statewide—ten of the state’s thirteen House seats. In 2018, this map gave Republicans nine seats with fifty percent of the vote statewide. In Maryland, the Democratic-controlled legislature redrew its congressional district map to “flip” a reliably Republican seat by moving Democratic voters into the district and Republican voters out. In the four elections since, Democrats have never received more than sixty-five percent of the statewide congressional vote, but have won seven of Maryland’s eight House seats, including that once reliably-Republican seat.
Partisan Gerrymandering’s Future
While the Rucho majority (Chief Justice Roberts, joined by Justices Thomas, Alito, Gorsuch, and Kavanaugh) conceded that both plans were “highly partisan, by any measure,” it concluded that partisan gerrymandering claims are not justiciable because, given that some partisan gerrymandering is constitutionally permissible, it is impossible to craft a clear and manageable test to determine when some becomes too much. It rejected the dissent’s proposal that courts use a computer algorithm to draw thousands of possible maps that follow the state’s own politically-neutral redistricting criteria (such as keeping districts geographically compact, respecting political subdivisions, and complying with the Voting Rights Act), line up the maps according to the partisan distribution they would produce, and then evaluate how far from the median the actual map is. The majority found that the dissent’s test would allow mapmakers to manipulate the criteria, and still would not answer the question of how far from the median is too far away.
The majority suggested that partisan gerrymandering opponents should look to state courts to enforce more protective state constitutional provisions, lead voter initiatives that mandate specific districting criteria, place redistricting power in the hands of independent commissions, and ask the federal Congress to enact laws that would limit partisan gerrymandering. Most states, however, do not have specific constitutional provisions aimed at thwarting partisan gerrymandering; about half the states—including North Carolina and Maryland—do not allow voter initiatives, and most attempts to reform redistricting through voter initiatives fail because sitting legislators fiercely oppose them. Further, it seems unlikely that members of Congress, many of them elected from gerrymandered districts, will act to curtail the practice.
After the 2020 Census, it is a safe bet that we will see even more aggressive partisan gerrymandering. Post Rucho, the parties in power will continue to entrench their power by “packing” and “cracking” the opposing parties’ voters without fear that the federal courts will intervene.
 139 S. Ct. 2484 (2019).
 See, e.g., Baker v. Carr, 369 U.S. 186 (1962) (malapportionment claims are justiciable); Wesberry v. Sanders, 84 S. Ct. 526 (1964) (Equal Protection Clause requires that federal congressional districts be roughly equal in population); Reynolds v. Sims, 377 U.S. 533 (1964) (state legislative districts must be roughly equal in population).
 Rucho, 139 S. Ct. at 2487.
 Id. at 2491 (citing Common Cause v. Rucho, 318 F. Supp. 3d 777, 810 (M.D.N.C. 2018)).
 The Republican candidate won the thirteenth seat, but the State Board of Elections has ordered a new election for that seat, as the initial election was tainted by fraud. Id. at 2491–92.
 Id. at 2493.
 Id. at 2511 (Kagan, J., dissenting).
 Id. at 2491 (majority opinion).
 Id. at 2505.
 Id. at 2505–06 (“Would twenty percent away from the median map be okay? Forty percent? Sixty percent?”).
 Id. at 2507–08.
 See, e.g., Nicholas O. Stephanopoulos, Reforming Redistricting: Why Popular Initiatives to Establish Redistricting Commissions Succeed or Fail, 23 J.L. & Pol. 331 (2007).