Credit: Art Lien

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Every 10 years, states use Census data to draw new maps for congressional districts, known as redistricting. When done properly, these maps should allow each person to have an opportunity to participate fairly in the election of officials to represent them in government. While politics does play a role in redistricting, states may go too far in favoring one political party over another, known as partisan gerrymandering. For example, maps may be drawn to divide voters of one political party into multiple districts so that they will not have a majority in any of them.


It is well settled that racial gerrymandering, the process of drawing district lines to prevent people of color from electing their candidates of choice, is unconstitutional, and that courts can hear such claims and provide relief. However, the law has been less clear with respect to partisan gerrymandering. In 1986, the Supreme Court held, in Davis v. Bandemer, that partisan gerrymandering may be unconstitutional in certain circumstances. However, the Court has consistently struggled to identify a workable standard to determine when partisan gerrymandering goes too far.  


In two cases before the Court this term, Rucho v. Common Cause and Lamone v. Benisek, the Supreme Court considered whether North Carolina and Maryland’s congressional maps were unconstitutionally drawn to lock in partisan power well beyond the political considerations that are a part of the typical redistricting process.


LDF filed an amicus brief in both cases, urging the Court to recognize that a claim of partisan gerrymandering can be brought for resolution by a federal court. We also asked the Court to establish a standard for deciding such a claim that would ensure that discrimination based on extreme partisanship is kept out of the redistricting process. We made clear that while racial discrimination is of different moral, legal, and historical roots than partisan gerrymandering, any solution to curb excess political influence in the districting process also can protect minority voters.


Unfortunately, in its decision for these cases, the Court ignored its previous rulings that partisan gerrymandering can violate the Constitution and held that challenges to partisan gerrymandering cannot be heard by federal courts. The Court left the remedy for addressing this issue with Congress and state legislators. This decision leaves rampant political manipulation unchecked by federal courts.


In her dissent, Justice Kagan noted that the maps in North Carolina and Maryland were “highly partisan” and excessive partisanship in districting leads to “unjust results” and is “incompatible with democratic principles.” Underscoring the truth of this statement is the fact that prior to the decision nearly half of the states had enacted laws or constitutional provisions to reduce or limit partisanship in the districting process. At this time, partisan gerrymandering in the other states remain unchecked.

About LDF

Through litigation, advocacy, and public education, LDF seeks structural changes to expand democracy, eliminate disparities, and achieve racial justice in a society that fulfills the promise of equality for all Americans.


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About The Marshall Institute

The Institute complements LDF’s traditional litigation strengths and brings critical capabilities to the fight for racial justice, including research and targeted advocacy campaigns. 


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