The U.S. Supreme Court's recent Rucho v. Common Cause decision has closed the federal court door to partisan gerrymandering cases, but the fighting over redistricting plans is far from over. Plans considered "too partisan" may face challenges in state courts in the future, and those alleged to be racial gerrymanders can still be challenged in federal and state courts.
Several states that recently adopted bipartisan redistricting reform can provide lessons to legislators on how to promote fair procedures, transparency and civility, and avoid costly challenges in the upcoming round of line-drawing.
In addition to population equality disputes, challenges to redistricting maps have generally fallen into one of two categories: racial gerrymandering and partisan gerrymandering.
Gerrymanders and Recent Litigation
Racial gerrymandering occurs when minority voters are "packed" into districts beyond the necessary threshold to enable them to elect their preferred candidates. Courts have found this practice violates the 14th Amendment's equal protection standard. The courts have also set standards for what constitutes Voting Rights Act violations to better define the scope of these challenges.
Partisan gerrymandering generally occurs where the majority party intentionally draws districts to minimize the ability of the minority party to elect candidates.
In the most recent round of litigation, both types of gerrymanders have been at issue. Cases alleging racial gerrymandering are pending in federal courts in Alabama, Connecticut, Georgia, Louisiana, Mississippi and Texas. In June, the Supreme Court dismissed the appeal of a racial gerrymandering case from Virginia on the grounds that the Republican-led House of Delegates, alone, lacked the necessary legal standing to appeal a lower court ruling. That lower court had invalidated 11 state House districts for being illegally gerrymandered on the basis of race. The Supreme Court's ruling left in place the court-ordered replacement districts that favored Democrats.
Over the years, courts have struggled with cases alleging partisan gerrymandering. In a 1986 case involving state legislative districts in Indiana, the Supreme Court held that charges of partisan gerrymandering (when one party is deliberately favored over another) could be heard in federal courts if challengers could prove that a redistricting plan was drawn with the intention and effect of disadvantaging members of a political party.
Yet in a...