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The right to vote is among the most important aspects of American democracy. In voting districts across the

country, however, partisan gerrymandering threatens the value of the votes cast. Though the issue has not gone unnoticed by voters, the courts have been vehemently resistant to making clear decisions in cases of partisan gerrymandering, dismissing the controversy as merely a political question. This article will discuss the insolubility of that argument, through depictions of definitive decisions on racial gerrymandering cases and other conflicting ideals of the courts. 

 

Introduction

“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United

States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws,” (U.S. Const. amend. XIV, § 1).

Since the first vote cast after the Constitution's enactment, the right to vote has been the pinnacle of democratic

advancement. Enfranchisement has been battled for in the chambers of Congress, over American soil, in city streets, and within media since the 18th century. Citizens, men and women, of all socioeconomic classes and races, have demanded representatives for  access to our American democracy. For access to their vote.

​How valuable, however, is that access if some votes are valued more highly than others? Gerrymandering, the

process of doctoring districting plans to skew majorities one way or the other, revalues the vote of the individual. Partisan gerrymandering displays the attempts of one party to unbalance district majorities in their party's favor, while racial gerrymandering depicts the motives of one group to diminish a certain race's voice within a district.

The right to vote is immensely coveted in our American system, however, gerrymandering seems to directly

contradict desires for balanced and fair representation. With this in mind, the court's opinions on partisan gerrymandering have surprisingly been no opinion. In the eyes of the federal courts, partisan gerrymandering is a political question, and therefore not within their jurisdiction. The Court has, however, created a standard to defend against racial gerrymandering.

Within this discussion, there will be a description of gerrymandering in the United States, which will be followed

by an explanation of the American judicial precedent on partisan gerrymandering and racial gerrymandering. The conclusion will include an analytical discussion on the concept of judicial restraint and the indefinability of a “political question,” court behavior towards answering political questions, the policy implications if political questions are not for the courts, as well as how American politics and the Courts should move forward on these questions.

 

Gerrymandering in the American Political System

As mentioned, gerrymandering is the process of manipulating state districting plans to skew majorities one way

or the other, which works to revalue the votes of the individual. There are several methods of gerrymandering, including: Cracking, Packing, Stacking, Hijacking, and Kidnapping.

​Cracking "splits groups of people with similar characteristics" over various districts. Packing crams "certain

groups of voters into as few districts as possible," which works to weaken "the 'packed' groups" elsewhere in the state [1]. Stacking relies on the increased likelihood that higher-income voters will come out to vote in larger numbers than lower-income voters, therefore districts will be "evenly split between lower-income, less educated minorities (who by and large vote for Democratic candidates) and higher-income, more educated whites (who are more likely to vote for Republicans) [2]."  Hijacking "puts incumbent politicians from the same party who previously represented different districts into the same district so they have to run against each other." Kidnapping strands an incumbent politician in a district that their voter base has been relocated from, providing them with significantly less support [3]. 

​According to Princeton's Gerrymandering Project, 23 states show no display of partisan gerrymandering.

Therefore, over half the country is in some way politically gerrymandered. And out of those remaining 27 states, 11 of them are Democratic-leaning and 16 are Republican- leaning. The Democratic-leaning states are as follows: Alabama, Connecticut, Illinois, Mississippi, Nebraska, Nevada, New Mexico, Oregon, South Carolina, Pennsylvania, and Utah. And the Republican-leaning states are as follows: Arkansas, Florida, Georgia, Idaho, Iowa, Kansas, Maryland, Michigan, Minnesota, New Hampshire, North Carolina, Ohio, Oklahoma, Texas, Washington, and Wisconsin. Summatively, the impact of partisan gerrymandering is profound [4]. 

Racial gerrymandering, which displays a counter to partisan gerrymandering decision-making, arises on a more

sporadic basis. The League of Women Voters and the American Civil Liberties Union (ACLU) have actively been working to prevent this sort of gerrymandering in districts across the country. After "Texas saw its population of people of color grow by 90%," in results from the 2020 census, the Texas state legislature neglected to redraw maps reflecting the change [5]. In Maryland, Black voters living in Baltimore County had been packed "into one majority district" in the newest redistricting plans. [6] And despite the fact that "on February 22, 2022, a federal judge ruled that the map-drawers must submit a new redistricting plan that represents Black voters more fairly," drawers have continued to neglect drawing maps which represent Black voters in the county fairly [6]. In Alabama, newly drawn maps only include one district, out of seven, where Black Alabamians can elect preferred candidates despite comprising more than 27% of Alabama's voting-age population. The plans pack a significant amount of Black voters into Alabama's District 7 while cracking other areas of predominant Black populations in Districts 1, 2, and 3 [7]. 

Whether purely partisan or racially partisan, gerrymandering adjusts the weight given to votes cast by the

American people. And the federal court system, and particularly the Supreme Court, has been demanded for answers.

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[1] Brennan Ctr. for Justice, Gerrymandering Explained, Brennan Ctr. for Justice (Feb. 22, 2021), https://www.brennancenter.org/our-work/research-reports/gerrymandering-explained.                          

[2] Univ. of Wis.-Madison, Packing and Cracking, Applied Population Lab., https://apl.wisc.edu/shared/tad/packing-cracking.

[3] Rethinking Redistricting, Caltech Magazine (Oct. 2023), https://magazine.caltech.edu/post/rethinking-redistricting.

[4] Gerrymander, Redistricting Report Card, Princeton Univ.,  https://gerrymander.princeton.edu/redistricting-report-card.

[5] League of Women Voters, Racial Gerrymandering and the 2021–2022 Redistricting Process, League of Women  Voters (Nov. 10, 2021), https://www.lwv.org/blog/racial-gerrymandering-and-2021-2022-redistricting-process.

[6] Id. 

[7] American Civil Liberties Union (ACLU), Alabama's New Electoral Lines Are Racially Gerrymandered. Here's  Why, ACLU (Jan. 10, 2022), https://www.aclu.org/news/voting-rights/alabamas-new-electoral-lines-are-racially-gerrymandered-heres-why.

 

Supreme Court Precedent on Gerrymandering

 

Premise for Partisan Gerrymandering Cases: Baker v. Carr (1962)

Most modern cases on partisan gerrymandering follow the thought pattern of the Political Question Doctrine,

molded in the 1962 Supreme Court case, Baker v. Carr. In the Baker case, Tennessee residents claimed the state legislature intentionally drew districts to dilute their votes, ignoring population shifts and economic growth within the state. In response to these allegations, the Supreme Court delineated the six relevant factors of the Political Question Doctrine.

These six factors rare as follows: "Prominent on the surface of any case held to involve a political question is

found [1] a textually demonstrable constitutional commitment of the issue to a coordinate political department; or [2] a lack of judicially discoverable and manageable standards for resolving it; or [3] the impossibility of deciding without an initial policy determination of a kind clearly for non judicial discretion; or [4] the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or [5] an unusual need for unquestioning adherence to a political decision already made; or [6] the potentiality of embarrassment from multifarious pronouncements by various departments on one question [8]." 

The decisions following, on cases dealing with partisan gerrymandering, will pay directed attention to these

factors within their lines of legal reasoning. 

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[8] Baker v. Carr, 369 U.S. 186 (1962).

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Partisan Gerrymandering

​In Davis v. Bandemer (1985), the court decided that even if Indiana's 1981 state apportionment plan was

discriminatory against Democrats, the impact was not "sufficiently adverse" enough to violate the Equal Protection Clause of the Fourteenth Amendment. In the case decision, the Court also made mention that though there may be a solution to partisan gerrymandering via the courts, they have yet to find it [9]. 

In Vieth v. Jubelirer (2004), through the case of a politically-disproportionate Pennsylvania redistricting plan,

Pennsylvania could not reach a majority opinion and a published plurality decision claimed the courts could not hear claims about partisan gerrymandering [10].

Within the League of United Latin American Citizens v. Perry (2006) case, the Court found that, though the

Texas legislature's redistricting plans did not violate the Fourteenth Amendment, they did violate the Voting Rights Act [11].

The most recent partisan gerrymandering case, Rucho v. Common Cause (2019) arose out of a North Carolina

redistricting dispute. After a lower court struck down the North Carolina redistricting committee's congressional map, the head of the Senate redistricting committee, Republican Robert Rucho, appealed the decision to the Supreme Court. In this case, the Court decided that partisan gerrymandering claims are ungrounded since they present political questions, which are beyond the jurisdiction of the courts [12]. 

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​[9] Davis v. Bandemer, 478 U.S. 109 (1986).

​[10] Vieth v. Jubelirer, 541 U.S. 267 (2004).

​[11] League of United Latin American Citizens v. Perry, 548 U.S. 399 (2006).

​[12]  Rucho v. Common Cause, 588 U.S. ___ (2019).

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Premise for Racial Gerrymandering Cases: Shaw v. Reno (1993)

​Another North Carolina redistricting case, Shaw v. Reno (1993), had a profound impact on racial gerrymanders

in congressional districting plans. After submitting a redistricting plan with one Black-majority district and then submitting a plan with a second, but highly irregular Black-majority district, the constitutionality of this irregular district was questioned and the redistricting case was appealed to the Supreme Court. The Supreme Court found that a valid racial gerrymandering claim does raise a constitutional violation of the Equal Protection Clause of the Constitution [13]. 

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[13] Shaw v. Reno, 509 U.S. 630 (1993).

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Racial Gerrymandering

​In Miller v. Johnson (1995), the Supreme Court found that on occasion, if a reapportionment plan is so highly

irregular and bizarre in shape, it will likely not be able to be rationally understood as anything other than an attempt to segregate voters based on race [14]. 

Within Easley v. Cromartie (2001), the Court found that race needs to be the predominant factor in the

redistricting methods for there to be a valid claim of unconstitutional racial gerrymandering. In the Easley case, however, political motivations appeared to be just as prevalent [15]. 

In Cooper v. Harris (2017), race was found as the predominant factoring in North Carolina redistricting plans

and they were therefore deemed unconstitutional [16]. 

Most recently, the Alexander v. South Carolina Conference of the NAACP (2024) case arose when South

Carolina's Republican-led legislature created a new congressional map, following the 2020 Census, which shifted a significant portion of Black voters to a separate district. This switch made the original District a safe seat for South Carolina Republicans. A three-judge panel found the district an unconstitutional racial gerrymanderer. Appealing this to the Supreme Court, the South Carolin legislature affirmed this map was created as a partisan gerrymander, which had a racial effect. In the end, the Court decided that in order to prove unconstitutional racial gerrymandering, it is necessary to prove that race, not political motivation, was the predominant motivating factor in the districting plan, which here it was not [17].

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[14] Miller v. Johnson, 515 U.S. 900 (1995).                 

[15] Easley v. Cromartie, 532 U.S. 234 (2001).

[16] Cooper v. Harris, 581 U.S. ___ (2017).         

[17] Alexander v. South Carolina State Conference of the NAACP, 602 U.S. ___ (2024).         ​​

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Analysis

 

 Judicial Restraint

The concept of the "political question" is born out of the broader concept of judicial restraint. Judicial restraint is

a legal principle in which the courts limit their own authority and instead defer to the other branches of government, the legislative and executive branches, on issues they find outside of their capacity, or jurisdiction. The concept of a political question, of an issue being for the legislature or executive over the courts, plays into the concept that courts are not lawmakers, but law defenders.​

However, there is also a significant indefinability of the political question. In many ways, using the Political

Question Doctrine works more as an evasive escape route from having to make difficult decisions than to maintain the separation of powers. Many judges, especially those on the Supreme Court, remain minimalist on topics rather than make controversial decisions. Additionally, the very concept of an issue being "beyond the courts" can be  somewhat worrisome. If the final bastion of the law cannot make a decision, who are the people supposed to rely on?

 

Supreme Court Behavior Towards Political Questions​

Whether or not the federal courts should be restricted from answering political questions is  somewhat inane,

impossible to answer. One important thing to consider is whether or not it seems like the courts do refrain from answering political questions, since in one way or another, every question could be considered political. If the courts are not allowed to answer political questions, should they be able to hear cases about women's rights, assault rifles, marriage, campaign finance, the environment, privacy concerns? Every day the courts are making decisions on political issues; even though the judicial branch may not be a formally “political” institution, its work is that of political questions.

​There is also the important question of what the policy implications are if political questions are not for the

courts, who will they, in finality, be for. It makes sense that the executive will set an agenda, Congress will mediate with that agenda and craft legislation, and the Courts will then adjudicate on that. But when a question has been found complex enough that it cannot be solved by the legislature or the executive, the courts are the last defense.

Again, even though the courts are inherently apolitical, they are responsible to the Constitution. And if people's

rights, particularly their right to vote, is at stake, wouldn't that be considered a matter of abridgment significant enough to be a constitutional, and not a merely "political" question?

 

The Future of Gerrymandering in American Federal Courts

​With a Congress stifled by inaction, and a president who cannot single-handedly purport legislation, the courts

are often seen as America's final chance for action. Cases over racial gerrymandering prove the Court is capable of making decisions on gerrymandering. But they have repeatedly put their hands up when it comes to blatant abuses of the people's right to vote under the name of politics.​

The American people deserve to make these decisions—and the American judicial system, which exists to protect

our social and political rights, should take steps toward enabling them to do so.

 

Conclusion

Enfranchisement is the most coveted possession of the American citizen. The people have conquered political and

social barriers to attain their right to vote in the United States for over two hundred years. The Equal Protection Clause of the Fourteenth Amendment affirms these rights. But partisan gerrymandering puts the vote at risk. A democracy where everyone is not one is not a democracy. The courts could ensure every vote is equal, as they have in many cases of racial gerrymandering, but they have decided to consider partisan gerrymandering purely as a political issue, and not as a legal, representational, social issue.​

The hopeful reality to the court's present inaction in these cases is that the cases will continue to come. And the

American people will continue demanding action in establishing future precedent.