Packing, Cracking, and Power (Part 4)
A 7-Part Series on The Tactics of Gerrymandering
In Part 3, we turned our attention to the U.S. Constitution. In Part 4, we are examining the history of key U.S. Supreme Court jurisprudence on gerrymandering and redistricting.
The "One Person, One Vote" Principle: Ensuring Population Equality
Before the 1960s, the Supreme Court generally refrained from intervening in legislative apportionment. It viewed the matter as a "political question," something the courts should not decide. This hands-off approach led to severe malapportionment, where districts had greatly different populations. As a result, the votes of people in more populous areas were effectively diluted.
Baker v. Carr (1962): This landmark case represented a "significant shift" in the judiciary's approach to our electoral system. The Court ruled that legislative apportionment is a "justiciable issue" under the Equal Protection Clause of the Fourteenth Amendment. This decision was monumental because it opened the doors of federal courts to challenges of malapportionment, setting the stage for the important rulings that followed. It was a step toward ensuring that every citizen's vote carries equal weight.
Wesberry v. Sanders (1964): Following the pivotal ruling in Baker v. Carr, the Supreme Court took another crucial step for our democracy. Building upon the groundwork of the earlier decision, the Court applied the "one person, one vote" principle specifically to our congressional districts. This ruling mandated that these districts must be drawn to be "as equal in population as is practical." This was an essential step toward ensuring that every American's vote for a member of Congress carries equal weight, reinforcing the foundational principle of fair representation.
Reynolds v. Sims (1964): In the same year as Wesberry v. Sanders, the Supreme Court delivered another crucial ruling for our democracy. This decision extended the "one person, one vote" principle to state legislative districts. The Court ruled that both houses of a state legislature must be apportioned based on population, ensuring "substantially equal state legislative representation for all citizens." Chief Justice Earl Warren famously and rightly articulated the core of this principle, stating that "legislators represent people, not trees or acres." This ruling was a major victory in the fight for fair and equal representation at the state level.
These crucial court cases completely reshaped our democracy. They made sure that electoral districts are drawn to honor the principle of equal representation based on population, which in turn reduces the potential for a person's vote to be diluted because of where they live. While the later Rucho decision removed federal oversight for gerrymandering done for partisan reasons, the "one person, one vote" principle, which was established by Baker, Wesberry, and Reynolds, remains a strict federal requirement for population equality across districts.
This means that even districts that are highly gerrymandered must still maintain population parity. This creates a complex legal situation. States cannot draw districts with vastly unequal populations, but within those population constraints, they have significant freedom to manipulate district boundaries through "packing" and "cracking" for partisan advantage. This shows us that "one person, one vote" addresses only one aspect of electoral fairness - population equality - and leaves the equally important dimension of partisan fairness largely ignored by our federal courts.
Federal Court Jurisdiction: Partisan vs. Racial Gerrymandering
Racial Gerrymandering (Still Justiciable)
Our federal courts continue to actively police racial gerrymandering. Landmark cases like Shaw v. Reno from 1993 established that challenges to racial gerrymandering can be brought forward under the Equal Protection Clause of the Fourteenth Amendment. If race is the "predominant factor" in drawing a district, a strict scrutiny review is applied. The Voting Rights Act (VRA) remains a vital legal tool, as it prohibits district lines that dilute the voting strength of minorities.
Recent Supreme Court rulings, such as Allen v. Milligan in 2023 and Alexander v. South Carolina NAACP in 2024, have affirmed the VRA's continued importance in challenging maps that are racially discriminatory. This ongoing federal oversight of racial gerrymandering, even with the Supreme Court's signals that might potentially weaken VRA claims, shows a persistent commitment to fighting race-based vote dilution. This commitment stands in sharp contrast to the Court's position on partisan gerrymandering, which it has largely left to the political process.
Partisan Gerrymandering (Non-Justiciable)
Davis v. Bandemer (1986): The Supreme Court took a step toward addressing partisan gerrymandering, ruling that such claims could be heard in federal courts. This was a potentially significant development. However, the Court also established a remarkably high bar for evidence. It required plaintiffs to prove not only that there was an intent to discriminate, but also that this discrimination had an actual, negative effect on a political group. This standard proved to be so difficult to meet that no partisan gerrymandering was ever successfully overturned under the Bandemer test.
Vieth v. Jubelirer (2004): This case further complicated the issue of partisan gerrymandering. Several of the justices argued that there was no "manageable legal standard" for federal courts to use when examining such maps, suggesting that the issue was not something the courts could or should address. However, Justice Anthony Kennedy, whose vote was the deciding one, kept the door open for future challenges. He suggested that if "workable standards" were to emerge, possibly under the First Amendment, the Court might be willing to hear these claims. This simply left the matter in a state of uncertainty.
Rucho v. Common Cause (2019): This ruling, decided by a narrow 5-4 ideological split, has definitively closed the door on federal court intervention in partisan gerrymandering. The Court held that claims of partisan gerrymandering "present political questions beyond the reach of the federal courts." Chief Justice Roberts, in the majority opinion, wrote that federal courts "are not equipped to apportion political power as a matter of fairness." It is crucial to understand that this decision explicitly states that it only applies to federal courts. The ruling left state courts, Congress, and state legislatures "free to regulate partisanship in redistricting." However, this decision is widely seen as having "made things worse" for those who advocate for fair elections. It has placed the burden of reform on political bodies, which are often the very ones benefiting from gerrymandering.
The Supreme Court's Rucho decision, while ostensibly a call for judicial restraint, explicitly pushed the responsibility for addressing partisan gerrymandering to our state courts, state legislatures, and the United States Congress. However, we must confront the sobering reality of our current political climate. Congress, as we all observe, is deeply polarized and appears highly unlikely to act decisively on this critical issue. Furthermore, efforts at the state level face significant hurdles, as demonstrated by political reversals in states like North Carolina, or require complex public initiatives, as seen in California.
This is where the true danger lies: gerrymandering itself is known to "fuel extreme politics" and has made primary elections "more important than the general election." This incentivizes those already in office to appeal to the most extreme elements of their base, rather than seeking common ground with moderates. By removing a federal check on this practice, the Rucho ruling has inadvertently removed a crucial disincentive for political parties to engage in extreme gerrymandering.
The Supreme Court's decision, perhaps unintentionally, has contributed to increased political polarization and extremism. Without a federal judicial backstop, parties are freer to create "safe districts" that insulate incumbents from true challenges in general elections. This makes primary elections the de facto deciders, pushing candidates to cater to the most ideologically committed voters. The tragic consequence is a diminished influence for moderates and an increasingly difficult path toward bipartisan compromise, threatening the very fabric of our representative democracy.
