🧭 Overview
🧠 One-sentence thesis
The Supreme Court in Rucho v. Common Cause (2019) held that partisan gerrymandering claims present nonjusticiable political questions beyond the reach of federal courts, even when such gerrymandering produces extreme partisan advantage and undermines democratic principles.
📌 Key points (3–5)
- What partisan gerrymandering is: drawing district lines to maximize one political party's electoral advantage through "packing" (concentrating opposition voters) and "cracking" (spreading them thin across districts).
- The Court's holding: federal courts lack judicially manageable standards to decide when partisan gerrymandering goes "too far," making such claims political questions outside judicial competence.
- Why the majority refused to intervene: no clear constitutional standard exists for defining electoral "fairness," and courts cannot choose among competing visions (proportional representation, competitive districts, traditional criteria, etc.) without making inherently political judgments.
- The dissent's position: manageable standards do exist—courts can compare a state's actual map to what the state would have done without partisan intent, using the state's own criteria as the baseline.
- Common confusion: this is not about whether partisan gerrymandering is wrong or harmful (the majority concedes it "debases democracy")—it's about whether courts have the constitutional authority and workable standards to remedy it.
🏛️ The constitutional and statutory framework
🏛️ What the case challenged
- North Carolina's 2016 congressional map was explicitly drawn to produce a 10-3 Republican advantage; the lead mapmaker stated "I drew this map to help foster what I think is better for the country" by "electing Republicans."
- Maryland's 2011 map deliberately flipped the 6th District from Republican to Democratic by moving 360,000 voters out and 350,000 in, reducing registered Republicans by 66,000.
- Plaintiffs challenged these maps under multiple constitutional provisions: Equal Protection Clause (vote dilution), First Amendment (retaliation for political beliefs), Article I §2 (right of "the People" to choose representatives), and the Elections Clause.
📜 Prior precedent on gerrymandering
The Court had addressed gerrymandering before but never struck down a plan as an unconstitutional partisan gerrymander:
| Type of gerrymandering | Constitutional standard | Key precedent |
|---|
| Population inequality | One-person-one-vote; justiciable under Equal Protection | Baker v. Carr (1962), Reynolds v. Sims (1964) |
| Racial gerrymandering | Strict scrutiny when race predominates; justiciable | Gomillion v. Lightfoot (1960), Shaw v. Reno (1993), Miller v. Johnson (1995) |
| Partisan gerrymandering | No manageable standard found; nonjusticiable | Rucho (2019) |
Don't confuse: The Court has clear standards for racial gerrymandering (race cannot predominate unless narrowly tailored to a compelling interest) and population inequality (districts must be roughly equal in population). Partisan gerrymandering is different—the Court says states may consider politics in districting, so the question is only "how much is too much," and no workable answer exists.
⚖️ The majority's reasoning: political questions doctrine
⚖️ What makes a question "nonjusticiable"
A "political question" is one that is "entrusted to one of the political branches or involves no judicially enforceable rights," and therefore lies outside the courts' jurisdiction.
From Baker v. Carr (1962), a question is nonjusticiable when there is "a lack of judicially discoverable and manageable standards for resolving it."
- The majority emphasizes this is not about whether partisan gerrymandering is harmful—it concedes these gerrymanders are "highly partisan, by any measure" and "incompatible with democratic principles."
- The issue is whether courts have constitutional authority and workable legal standards to decide such cases.
🚫 Why no manageable standards exist (majority view)
Problem 1: No constitutional definition of "fairness"
- The Constitution does not define what electoral fairness means in the partisan context.
- Multiple competing visions exist: proportional representation, competitive districts, adherence to traditional criteria (compactness, respecting county lines, protecting incumbents), etc.
- Each vision has trade-offs: making districts competitive might hurt the minority party if they lose narrowly everywhere; ensuring "fair" seat shares requires packing and cracking; protecting incumbents entrenches existing partisan distribution.
- The majority asks: "Which version of fairness should courts use? There are no legal standards discernible in the Constitution for making such judgments."
Problem 2: No way to determine "how much is too much"
- Even after choosing a fairness standard, courts would have to decide at what point deviation becomes unconstitutional.
- Example questions the majority poses: "If a 5-3 allocation corresponds to statewide votes, is 6-2 permissible? How competitive must a district be? How much deviation from traditional criteria is allowed?"
- The majority warns: "Results from one gerrymandering case to the next would likely be disparate and inconsistent."
Problem 3: Unprecedented judicial intervention in politics
- Redistricting happens every 10 years in every state; judicial oversight would mean "unlimited" and recurring intervention "into one of the most intensely partisan aspects of American political life."
- The majority quotes Justice Kennedy: courts must act with "limited and precise rationale" that is "clear, manageable, and politically neutral"—requirements not met here.
📋 What the majority rejected
The lower courts and plaintiffs proposed various tests, but the majority found all inadequate:
- Efficiency gap test: measures "wasted votes" (votes beyond what's needed to win, or votes cast for losing candidates); majority says this assumes proportional representation is the goal.
- Traditional criteria test: strikes down maps that depart too much from compactness, contiguity, etc.; majority says these criteria "cannot promise political neutrality" because geography itself can favor one party.
- Discriminatory intent + effects test: majority says even if intent is clear, courts still lack standards for measuring effects and determining remedies.
Don't confuse: The majority does not say partisan gerrymandering is constitutional or acceptable—it says federal courts cannot police it because they lack constitutional authority and manageable standards, not because the practice is legitimate.
🗣️ The dissent's counterargument
🗣️ Manageable standards do exist (Kagan, J.)
Justice Kagan (joined by Ginsburg, Breyer, Sotomayor) argues courts have developed workable standards:
"What the majority says can't be done has been done. Over the past several years, federal courts across the country have largely converged on a standard for adjudicating partisan gerrymandering claims."
The dissent's proposed standard:
- Baseline is the state's own criteria: Courts don't impose their vision of fairness; they use the state's traditional districting principles (compactness, respecting political subdivisions, etc.) as the neutral baseline.
- Compare actual map to what would have happened without partisan intent: Show the legislature subordinated its own stated criteria to partisan gain.
- Require proof of both intent and effects: Plaintiffs must show (a) legislators intended to entrench their party, and (b) the map actually produces extreme, durable partisan advantage.
🎯 Why this standard is neutral and manageable
🔥 The dissent's core objection
Justice Kagan emphasizes the stakes:
- "Partisan gerrymandering turns [democracy] the other way around. By that mechanism, politicians can cherry-pick voters to ensure their reelection."
- Modern technology makes this worse: "Old-time efforts, based on little more than guesses, sometimes led to dummymanders. Not likely in today's world." Mapmakers now use granular data and computing power to generate thousands of options and choose the one giving maximum advantage.
- "The majority disputes none of this"—it concedes gerrymandering "debases democracy" but refuses to act.
- The dissent warns: "If left unchecked, gerrymanders like the ones here may irreparably damage our system of government."
The dissent's bottom line: "For the first time ever, this Court refuses to remedy a constitutional violation because it thinks the task beyond judicial capabilities." Courts have a "special responsibility" to protect voting rights precisely because "politicians' incentives conflict with voters' interests, leaving citizens without any political remedy."
🔍 Key distinctions and common confusions
🔍 Partisan vs. racial gerrymandering
| Aspect | Racial gerrymandering | Partisan gerrymandering |
|---|
| Constitutional status | Presumptively unconstitutional when race predominates | Permissible to some degree (states may consider politics) |
| Standard of review | Strict scrutiny; must be narrowly tailored to compelling interest | No standard—nonjusticiable per Rucho |
| Justiciability | Justiciable; courts have clear standards | Nonjusticiable; no manageable standards (majority view) |
| Key precedents | Shaw v. Reno, Miller v. Johnson, Cooper v. Harris | Rucho v. Common Cause |
Why the difference?
- The Constitution explicitly prohibits racial discrimination in voting (14th and 15th Amendments).
- The Constitution does not prohibit partisan considerations in districting; indeed, the Framers "entrust[ed] districting to political entities."
- For race, the question is whether race predominated (a factual question with clear legal consequences); for partisanship, the question is "how much is too much" (a question with no constitutional answer).
🔍 Vote dilution in different contexts
The term "vote dilution" appears in multiple contexts:
- Population inequality: Making some districts much larger than others dilutes votes in larger districts. Justiciable under one-person-one-vote (Reynolds v. Sims).
- Racial vote dilution: Drawing lines to minimize minority voting strength. Justiciable under §2 of the Voting Rights Act (Thornburg v. Gingles) and Equal Protection Clause.
- Partisan vote dilution: Drawing lines to minimize one party's voting strength. Nonjusticiable per Rucho.
Don't confuse: All three involve making some votes count less than others, but only the first two are justiciable because courts have clear standards (equal population; no racial discrimination) and constitutional text to apply.
🛠️ Practical implications and remaining questions
🛠️ What remedies remain available
The majority does not leave voters entirely without recourse:
- State courts under state constitutions: "Provisions in state statutes and state constitutions can provide standards and guidance for state courts to apply." (Several states have since struck down partisan gerrymanders under state law.)
- The political process: Voters can elect different legislators, pass ballot initiatives, or create independent redistricting commissions.
- Congress: Could potentially regulate under the Elections Clause (Art. I, §4), though the majority does not address this.
The dissent's response: "The majority's suggestion that voters can fix gerrymandering through the political process is dubious on its face"—because the gerrymander itself entrenches the party in power and makes political change nearly impossible.
🛠️ What remains justiciable
Even after Rucho, federal courts can still hear:
- One-person-one-vote challenges: Districts must have roughly equal population.
- Racial gerrymandering claims: Race cannot be the predominant factor without narrow tailoring to a compelling interest.
- First Amendment retaliation claims: The majority leaves open whether a gerrymander that punishes voters for past political expression might violate the First Amendment (though it expresses skepticism).
- Voting Rights Act claims: §2 prohibits practices that result in racial vote dilution.
⚠️ The dissent's warning about modern technology
Justice Kagan emphasizes that partisan gerrymandering is fundamentally different today:
- Old gerrymandering: "Based on little more than guesses," sometimes backfired ("dummymanders").
- Modern gerrymandering: Mapmakers have "granular data about party preference and voting behavior" at the "precinct-level or city-block-level" and can "generate thousands of possibilities at the touch of a key."
- Future gerrymandering: "What was possible with paper and pen—or even with Windows 95—doesn't hold a candle to what will become possible with developments like machine learning."
- The effect: "Gerrymanders [are] far more effective and durable than before, insulating politicians against all but the most titanic shifts in the political tides."
Example: North Carolina's mapmaker testified he was instructed to draw a map producing 10 Republicans and 3 Democrats because he did "not believe it would be possible to draw a map with 11 Republicans and 2 Democrats"—this level of precision was impossible in earlier eras.
🔄 The fundamental disagreement
The majority and dissent agree on the problem but disagree on the solution:
Both agree:
- Partisan gerrymandering "debases democracy" and is "incompatible with democratic principles."
- The gerrymanders here were extreme and intentional.
- Voters are harmed when politicians choose their voters instead of voters choosing representatives.
They disagree on:
- Whether courts can identify manageable standards: Majority says no constitutional standard exists for "fairness"; dissent says use the state's own standards as baseline.
- Whether intervention is appropriate: Majority fears "unprecedented expansion of judicial power" into "intensely partisan" matters; dissent says courts have "special responsibility" to protect voting rights when political process cannot.
- Whether the risk of inconsistency is disqualifying: Majority worries results will be "disparate and inconsistent"; dissent argues the standard only catches the "worst-of-the-worst cases."
Don't confuse: This is not a debate about whether partisan gerrymandering is bad (both sides agree it is) or whether it violates democratic principles (both sides agree it does). The debate is purely about judicial role—whether courts have authority and standards to intervene, or whether the remedy must come from politics, state courts, or Congress.
📊 The evidence in these cases
📊 North Carolina's 2016 plan
Direct evidence of intent:
- Republican legislators announced they were drawing a map to elect 10 Republicans and 3 Democrats.
- The mapmaker explained he chose 10-3 because 11-2 was not "possible."
- One Democratic senator objected this was not "fair, reasonable, or balanced" given that Democrats had received more statewide votes in 2012.
- The plan passed on a party-line vote.
Effects evidence:
- The district court found the plan produced 12 districts (of 13) that were unconstitutional partisan gerrymanders.
- Expert analysis showed the map was more skewed than 3,000 randomly generated alternatives using the state's own geography and districting criteria.
📊 Maryland's 2011 plan
Direct evidence of intent:
- Governor O'Malley testified his aim was to "use the redistricting process to change the overall composition of Maryland's congressional delegation to 7 Democrats and 1 Republican by flipping" one district.
- He appointed a committee and asked Congressman Hoyer (who called himself a "serial gerrymanderer") to advise.
- "A decision was made to go for the Sixth" District, previously held by Republicans.
Effects evidence:
- To achieve required equal population, only 10,000 residents needed to be moved.
- Instead, the plan moved 360,000 voters out and 350,000 in.
- Result: 66,000 fewer registered Republicans, 24,000 more registered Democrats.
- The 6th District flipped to Democratic and "succeeded" in the 2012 election; "a Democrat has held the seat ever since."
- The plan caused "the largest partisan swing of a congressional district in the country" in 2011.
📊 What the lower courts found
Both district courts (three-judge panels) found constitutional violations:
- North Carolina: Violated Equal Protection Clause and Article I; also violated First Amendment (2-1).
- Maryland: Violated First Amendment through intentional retaliation against Republican voters.
The courts applied a standard requiring proof of both discriminatory intent and discriminatory effects, and found both were clearly established.
🤔 The core analytical problem
🤔 The "fairness" dilemma
The majority identifies a fundamental problem: there is no single, constitutionally-mandated vision of electoral fairness.
Competing visions of fairness:
-
Proportional representation: Each party's seat share should match its vote share.
- Problem: The Constitution does not require this; "our cases clearly foreclose any claim that the Constitution requires proportional representation."
-
Competitive districts: Maximize the number of districts where either party could win.
- Problem: This could be "a recipe for disaster for the disadvantaged party"—if all districts are competitive, a narrow statewide preference produces an "overwhelming majority" for the winning party.
-
Traditional criteria: Follow compactness, contiguity, respect for political subdivisions.
- Problem: These "cannot promise political neutrality"—natural geography (like urban concentration of one party) can itself create packed districts.
- Also: How much deviation is allowed? How to prioritize when criteria conflict?
-
Protecting incumbents: Avoid contests between sitting representatives.
- Problem: This "enshrines a particular partisan distribution."
The majority concludes: "Deciding among just these different visions of fairness poses basic questions that are political, not legal."
🤔 The "how much is too much" problem
Even if courts picked a fairness standard, they would face line-drawing problems:
- If the standard is proportional representation: Is 6-2 acceptable when 5-3 matches statewide votes? What about 7-1?
- If the standard is competitive districts: How close must races be? Must all districts qualify, or just some?
- If the standard is traditional criteria: How much deviation from compactness is too much? How to rank competing criteria?
The majority argues these are "unguided and ill suited to the development of judicial standards."
Example the majority gives: "If a districting plan protected half of the incumbents but redistricted the rest into head-to-head races, would that be constitutional?" No clear answer exists.
🤔 The dissent's response to these problems
Justice Kagan argues the majority creates a false dilemma:
On the fairness problem:
- "The standard does not use any judge-made conception of electoral fairness—either proportional representation or any other."
- Instead, it "takes as its baseline a State's own criteria of fairness, apart from partisan gain."
- Courts don't choose among competing visions; they simply ask: "Did the state follow its own rules, or did it abandon them for partisan advantage?"
On the "how much is too much" problem:
- The standard only invalidates extreme gerrymanders: "The standard invalidates the most extreme, but only the most extreme, partisan gerrymanders."
- Clear examples: A map that is the worst of 3,001 possibilities; a district that experienced "the largest partisan swing in the country" with no non-partisan explanation.
- The dissent argues: "If the majority had done nothing else, it could have set the line here. How much is too much? At the least, any gerrymanders as bad as these."
On judicial role:
- The dissent emphasizes courts have "special responsibility" to protect voting rights because "politicians' incentives conflict with voters' interests."
- "No one can look to them [politicians] for effective relief" from gerrymandering—the very people who benefit from it are the ones who would have to end it.
🌐 Broader implications and context
🌐 Why this matters for democracy
Both the majority and dissent acknowledge profound democratic harms:
Effects on representation:
- Partisan gerrymandering "enables politicians to entrench themselves in office as against voters' preferences."
- It means "power becomes, as Madison put it, 'in the Government over the people'" rather than "in the people over the Government."
- As the dissent puts it: "The core principle of republican government is that the voters should choose their representatives, not the other way around."
Effects on governance:
- An amicus brief from bipartisan current and former Members of Congress described "a cascade of negative results":
- Shifts influence from swing voters to party-base voters in primaries.
- Makes "bipartisanship and pragmatic compromise politically difficult or impossible."
- Drives voters away from "an ever more dysfunctional political process."
- State legislators described the environment as "toxic" and "tribal," with gerrymandering having "sounded the death-knell of bipartisanship."
🌐 The role of technology
The dissent emphasizes this is not your "grandfather's gerrymander":
What's changed:
- Data: County-level data has given way to precinct- or block-level data, and "increasingly, mapmakers avail themselves of data sets providing wide-ranging information about even individual voters."
- Computing power: "While bygone mapmakers may have drafted three or four alternative plans, today's mapmakers can generate thousands of possibilities at the touch of a key."
- Precision: Mapmakers can "choose the one giving their party maximum advantage (usually while still meeting traditional districting requirements)."
- Future: "What will become possible with developments like machine learning" will be even more powerful.
The result: Gerrymanders are "far more effective and durable than before, insulating politicians against all but the most titanic shifts in the political tides."
🌐 What happens after Rucho
The majority suggests alternative remedies:
- State courts: Can apply state constitutional provisions; several states have since struck down partisan gerrymanders under state law.
- Independent commissions: States can create nonpartisan redistricting bodies (as some have done).
- Legislation: Congress could potentially act under the Elections Clause, though the majority does not address this.
The dissent's skepticism: "The majority's suggestion that voters can fix gerrymandering through the political process is dubious on its face"—because the gerrymander prevents voters from electing representatives who would end it.
⚠️ What remains unresolved
The majority explicitly leaves open several questions:
- Whether the Elections Clause gives Congress power to regulate partisan gerrymandering.
- Whether extreme partisan gerrymandering might violate the First Amendment as retaliation for political expression (though the majority is skeptical).
- Whether state courts can develop their own standards under state constitutions (the majority suggests they can).
Don't confuse: Rucho does not hold that partisan gerrymandering is constitutional—it holds only that federal courts under the federal Constitution lack standards to adjudicate such claims. State courts under state constitutions, or Congress under its constitutional powers, might reach different conclusions.